ROMANIA LAW AND PRACTICE Contributed by: Raluca Vasilescu, Cabinet M. Oproiu and Ioana Gelepu, The Office Litigation & Enforcement
3.8 Procedure for Third-Party Opinions Romanian courts may ask the opinions of third parties. On the external level, the court may request a preliminary ruling from the Court of Justice of the European Union (CJEU), if the ruling could be decisive for the outcome of the case. Internally, OSIM may be asked for its views on specific questions (eg, on the classification of a particular product in the Nice Classification). The parties may also submit, as out-of-court experts’ reports, opinions from specialists in the field. It is important to note that the court is not obliged to take any third party’s opinion into consideration (except for CJEU decisions). The reasons for invalidation generally refer to the fact that at least one legal provision for granting the patent or trade mark right was not fulfilled at the date when the protection was granted. The plaintiff must prove the legal provision invoked. Remedies in invalidation proceedings may include partial or full invalidation of said right. 4.2 Partial Revocation/Cancellation In almost all circumstances, depending on the right, it is possible to obtain either partial invali- dation or total invalidation. For patents, a limi- tation of the protection can be obtained in the case of partial invalidation. Trade marks can be invalidated for some products and maintained for others. 4.3 Amendments in Revocation/ Cancellation Proceedings For patents, by amending the claims, a limitation of the protection can be sought and obtained if, 4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation
by limiting the protection, the objections of the plaintiff are removed. 4.4 Revocation/Cancellation and Infringement Invalidation is typically filed as a counterclaim or as a separate claim. In the latter scenario, the infringement case should be suspended until the final settlement of the parallel case. Once a final decision has been reached in the invalidation proceeding, the infringement case can continue if the right was maintained fully or partially. 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights The main parts of the trial are the typical ones: (a) the regularisation stage – which involves for- mal checks on the claim; (b) submission of the statement of defence by the defendant (contain- ing factual and legal defences to the plaintiff’s claim), accompanied by evidence; (c) the first tri- al date; (d) inquiry – the court rules on the pleas; evidence is admitted and administered; and (e) oral pleadings (oral presentation of the parties’ arguments). The trial may be concluded in a sin- gle hearing or may involve several hearings. The legal probative means are: written documents, cross-examination, witnesses, material proof, expert reports. Generally, witnesses are heard before the court and, in exceptional cases, out- side the court, by lawyers. As for experts, as a general rule, they give written answers (and are heard only in exceptional circumstances). In other cases, the plaintiff makes its requests in several files. For example, an infringement claim and damages may be granted in the same file (if the court has been so empowered by the appli- cation) or in separate files. In the latter case, it would make sense to suspend the damages
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