ROMANIA LAW AND PRACTICE Contributed by: Raluca Vasilescu, Cabinet M. Oproiu and Ioana Gelepu, The Office Litigation & Enforcement
2.6 Legal Representation For proceedings taking place before OSIM as court of first instance, the parties can be rep- resented either by a trade mark attorney or by a lawyer. Note that in Romania the profession of industrial property attorney (patent attorney, trade mark attorney, design attorney) is separate from the profession of lawyer. Before the court, there are distinct rules depending on whether the party is a natural or a legal person. In the case of a natural person, the representation may be through a lawyer or other representative (with different rights depending on the circumstanc- es). For a legal person, representation in court can only be made by a lawyer or a legal adviser. For the reasons given above, this article is writ- ten by a patent attorney and a lawyer. 2.7 Interim Injunctions Interim injunctions are available. The basic con- ditions for filing an interim injunction are: prov- ing an interest, proving the appearance of right (prima facie) and proving imminent damage to the owner in the absence of measures – this includes proving urgency. 2.8 Protection for Potential Opponents A person who feels at threat from a potential dispute which could be initiated by a trade mark/ patent owner could, for example, resort to the “fact ascertainment” procedure. This procedure is typically executed by the bailiff, who ascer- tains a state of facts that might change. Another mechanism that could be used is the “securing of evidence”, by requiring the court to order an expert opinion, which may be difficult to obtain in the future. 2.9 Special Limitation Provisions The general prescribed time limit for a court action is three years. In some cases, there are special time limits; namely, an opposition to a
trade mark registration can be filed (before OSIM, with appeal to the court) within two months from the publication of the trade mark, an application for annulment of a patent can be filed during the validity of the patent, and an application for annulment of a trade mark can be filed within the protection period of the trade mark. 2.10 Mechanisms to Obtain Evidence and Information EU Directive 48/2004, which has been trans- posed into national legislation, provides the obligation to provide the court, upon its request, with information regarding the alleged infringe- ment. Some other information can be gathered from the customs authorities pursuant to EU Regulation 608/2013. Such information may be used during court proceedings as evidence in order to establish whether there is infringe- ment. Apart from the above, there is the general rule that the court can request the defendant to provide documents/evidence in the defendant’s possession. A party’s request that the court do so will be automatically granted in certain cases (eg, when the opposing party itself has referred to the document). If a third party holds a docu- ment relating to the proceedings, that third party will be summoned as a witness and ordered to produce the document. 2.11 Initial Pleading Standards The initial pleading standards for industrial prop- erty are the same as those for other types of non-industrial property proceedings. The state- ment of claim must contain the identification data of the parties, the concrete claim, the fac- tual situation and the legal argumentation (the legal texts and their applicability to the case), and it should also specify the evidence. After the filing of the application, new evidence can only be introduced in certain cases expressly provided for by law (eg, the original application
419 CHAMBERS.COM
Powered by FlippingBook