I. Rights To Be Protected
The intellectual property protection system of Latvia belongs to the Continental European law school by recognising the existence of moral rights that are considered to be unalienable moral rights according to the laws of Latvia.
In Latvia the copyrights are protected without the registration. Patent rights function according to the first to file principle well recognized in Europe. Protection of industrial designs is ensured by design patents. Plant variety protection is regulated by a separate law. In Latvia plant varieties are not protected on the basis of a patent, but instead they are registered with a special register of the Ministry of Agriculture for the Republic of Latvia. Databases are protected under the Copyright law. There is a special legislation with respect to unfair competition, and a special institution – Competition Council – has been established to apply this law. Decisions made by the Competition Council may be appealed in the court. At present there is no permanent legal basis for the protection of domain names in Latvia. Geographical indications are protected without the registration. Mainly the protection is expressed through the restrictions to register trademarks containing the geographical indications. No separate rights exist with respect to the protection of a person's depiction in Latvia. Utility models are not protected as well. With respect to know-how the protection only exists in a way of liability for the exposure of a business secret, however the definition for the business secret may not be found in special laws.
The patent application is to be submitted with the Patent Office of the Republic of Latvia. The Patent Office does not examine the applied invention in point of fact. Such approach may be explained by the lack of adequate resources to ensure that the patent examination is in compliance with the world`s technical level.
It is the right of the applicant to file complaint with the Appeal Council of the Patent Office regarding the decision to reject the patent application. The Appeal Council of the Patent Office also examines objections to the grant of a patent. Any person may file such objection with the Appeal Council of the Patent Office after the publication of grant.
The decisions made by the Appeal Council for the Patent Office may be further appealed in the court. Alongside with the administrative objection procedure there are also chances to dispute the earlier registered patent by way of filing a general claim.
Only a registered trademark gives exclusive rights. The laws on trademarks of 1993, of 1999 and the newest one that has come into force from January 1, 2008 allow registering any type of trademarks, including three – dimensional or such as consisting of colours or sounds. Yet more often then not the Patent Office of the Republic of Latvia refuses to register designations including combinations of letters or numbers because it is difficult to differentiate or remember such trademarks. The trademark registration may not be refused if it has obtained distinctiveness through its usage.
The trademark applicant shall not submit any evidences on the usage of the trademark. On the contrary – the law permits the trademark registration before its usage in Latvia. However, the usage is a mandatory pre-condition for maintaining the effectiveness of the right to the trademark. If within five years on from the registration day the owner of the trademark has not began its actual usage in Latvia pertaining to the goods and services registered for, or if such usage has been interrupted for five successive years at least, the court may cancel the trademark registration upon the request of the interested person.
The registration procedure and validity conditions of the industrial designs are similar to the procedure under which the patentable inventions are registered and protected in Latvia. Alongside with the administrative procedure exercised by the Appeal Council of the Patent Office there is also a chance to appeal against the decisions made by the Appeal Council of the Patent Office in the court as well as to file claim to invalidate the patent protecting the industrial design.
II. Latvian Court Practice
No special courts exist for the intellectual property protection. Claims arising from the intellectual property rights are admissible to the general jurisdiction and depending on the sum of the claim they are heard before the lower instances, i.e., in district or city courts, or before regional courts. It is however different with the trademark, patent rights and geographical indications that are admissible to Riga Regional Court as the first instance court irrespective of the location for the parties to the dispute in Latvia.
According to the EU law Member states shall designate as limited a number as possible of special courts related to particular intellectual property categories: Community trademark courts1 and Community design courts2.
There are at least two characteristic features for Community trademark courts and Community design courts. First, matters of respective category are admissible only to these courts, respectively disputes related to Community trademarks or Community designs. Second, the number of such courts shall be as limited as possible. The latter requirement obviously embraces idea on specialisation.
After Latvia joined the EU on May 1, 20004 it had to guarantee fulfillment of the regulations mentioned above and announce which institution shall perform special court (court related to particular intellectual property categories: Community trademark court and Community design court) functions. In Latvia execution procedure of Regulations could be carried out through amendments to the national legislation: in the Trademark law, Design law and/or Civil Procedure Law, Administrative Procedure Law. But finally no amendmets were made, because Latvia announced Riga Regional Court as a court of the first instance for the EU Trademark court and Community design court.
When the first laws on intellectual property were drafted and adopted, in most cases they envisaged that disputes arising from the industrial property rights should be admissible to Riga Regional Court as the court of the first instance. This is why it was only logic that Latvia announced Riga Regional Court as a court of the first instance for the EU Trademark court and Community design court, beacause it was exactly this court who had accumulated most experience in reviewing industrial property disputes.
As a result the idea on admissibility of industrial property cases to a specialised highly qualified court was not fully carried out. It is Latvia`s judicial problem since 1993 that admissibility of industrial property cases, yet not all of them, was subject to one court reviewing these cases in a limited number of judges only before the first instance. Afterwards, it is possible to appeal such judgements before the Civil Case Panel for the Supreme Court of the Republic of Latvia. The number of cases related to industrial property disputes is approximately equal for all judges at this court instance. Consequently it may be concluded that specialisation is not a priority for this court.
One of the defects for this system is evident – the large number of appealed judgements. Only in very few cases (most probably not exceeding 10%) a judgement adopted by Riga Regional Court is not appealed and comes into force. There is also remarkable number of such cases when the court of appeal delivers a totally opposite judgement to that adopted by Riga Regional Court. With all these facts taken together there is great unpredictability in industrial property matters. Outcome of individual proceedings explicitly demonstrates this tendency.
As already mentioned, not all industrial property cases are admissible to Riga Regional Court as the court of the first instance. Considerable number of cases comes under the Competition Council and when earlier a decision adopted by the Competition Council was appealed (until February 1, 2004) the case was further reviewed by a District Court. Riga Regional Court was then the court of appeal. However there is no principle for a judge specialisation in the disputes related to unfair competition.
When we take a look at the court reforms that have taken place during the last ten years there is an increasing tendency to turn away from specialisation, instead of going in its direction. With adoption of the Administrative Procedure Law and establishment of specialised administrative courts that started functioning since February 1, 2004, the latter are assigned with an important category of industrial property cases which were earlier admissible to Riga Regional Court (since 1993). Whereas, since February 1, 2004 a District Administrative Court reviews complaints regarding decisions adopted by the Appeal Council of the Patent Office of the Republic of Latvia that were earlier subject to Riga Regional Court.
In the result of dispersion of such admissibility one and the same legal dispute, depending on the way a claimant has constructed his or her claim, may be reviewed before three totally different court systems. For instance, a claim to cancel a domain registration based on the rights of a similar Community trademark, is admissible to Riga Regional Court. The same dispute, provided it is raised in the Competition Council based on norms on unfair competition, may only be appealed in the Administrative District Court after it is reviewed in the Competition Council. The Competition Law allows bringing action directly to the court without applying to the Competition Council. If a claimant uses such rights, a claim is admissible to a District Court.
Laws on the intellectual property do not provide for special procedural provisions either. Claims related to the cancellation of the patent, trademark or other intellectual property rights are not separated from those related to the infringement of these rights. Both the claim on the infringement of rights and the defendant`s counter claim on the cancellation of the act establishing the plaintiff`s rights (on a patent, registered trademark, etc.) are possible in the same proceedings.
One of the major questions is who would represent the plaintiff and the defendant at the court. Considering that Latvian laws on industrial property provide that only a patent attorney may file the applications on the grant of a patent or the trademark registration as regards foreign companies and physical entities, a question arises what is the role of the patent attorney in the court proceedings. In difference from the special laws on the industrial property rights, the Civil Procedure Law of Latvia does not envisage specific exceptions with respect to the representation in the industrial property cases. Like in other cases, attorneys, i.e., the members of the Bar, exercise the representation under the procedure laws. Patent attorneys in turn belong to the category of other representatives according to this law. These representatives not being the members of the Bar may represent other persons only provided that the agreement is signed on the management of the entire property of this person or based on an employment contract (as according with the amendments to the Civil Procedure Law that have already been effective for several years). Besides, even upon presenting such a Letter of Authorisation, the representatives still have to answer the court questions in order to prove that they actually manage the property of the person they represent and that such Letter of Authorisation is not of a fictitious character. Despite the fact that the law does not provide for any specific exceptions with regard to the patent attorneys, the court still continuous to recognize them as the representatives for the parties, however in each particular case their admitting to represent the interests of other persons depends on the individual attitude of a particular judge.
Upon filing a claim on the infringement of the patent or trademark rights, the security for the claim is possible. The judge may also examine the application on the security for the claim without the presence of both parties. In order to have a prohibition on performing particular activities or a seizure of the counterfeit production, the plaintiff does not have to prove the fact of the infringement, and the court shall not examine the grounds of the plaintiff`s claim upon deciding on the security for the claim. It is sufficient for the plaintiff to prove that the execution of the judgement would be impossible without such securing provided that the claim is satisfied.
Theoretically the court can also consider the possible amount of damages that may be caused to the defendant. However, the principle of balance of convenience is not applied in practice. If the claim is not satisfied, the applicant may be under the duty to compensate for damages provided that the defendant, having won the trial, requests such compensation. A separate claim shall be filed for the compensation of such damages. The defendant in turn may not paralyse the security for the claim by referring to the groundlessness of the plaintiff`s claim. The defendant`s only protection may be a reference to the procedural violations, including that the claim of the applicant is ungrounded claiming that the execution of the judgement would not be possible without the securing of the claim. The security for a claim is expressed through prohibiting certain activities, a ban to distribute counterfeit goods, a seizure of these goods.
The costs for the security of a claim are small. The state duty is LVL 20,00 or 28,46 EUR, bet, ja nodroainājuma summa pārsniedz LVL 4000,00 or EUR 5691,52, tad valsts nodeva sastāda 0,5 % no prasības summas. The state duty for the cases of the intellectual property infringement is the same as that for the security of a claim which value is under LVL 4000,00. It is only different when the compensation for damages is required alongside with the claim on the infringement. Then the state duty is proportional to the amount of the caused damages and draws up a sum that is usually below 2% of the sum of the claim. The claims on the compensation for damages are rarely encountered in the intellectual property infringement cases.
Since the proceedings related to the intellectual property protection are carried out under the general procedure, they are not specifically different from any other claim heard before Latvian courts.
However, some of specifics for Latvian proceedings are worth mentioning considering the characteristics of such disputes in other countries. When judging the defendant`s activities in comparison with the plaintiff`s activities (the similarity analysis of a patent or a trademark) the court mainly basis itself upon the evidences submitted by the parties. If any of the parties considers it necessary to invite a competent specialist, such a specialist would not enjoy the status of an expert in Latvian courts, but instead is questioned as a witness. Only such expert that is approved by the court enjoys the status of an independent expert. The court may invite such expert at its own initiative or take into account the requests by the parties. The expert appointed by the court is questioned by the same court, and the participants to the proceedings - the plaintiff and the defendant - may also pose questions. The opinion of the expert appointed by the court is not decisive. Such opinion is evaluated in context with other evidences in the case. It is possible to be one of the reasons why the participation of the experts is a rare phenomenon in the intellectual property disputes.
In return the activity of the parties is very high when involving specialists at different levels to substantiate their claims or to dispute the claim of the other party. Despite the fact that the qualification of the persons involved may often be very high, it is however only every third proceedings when such specialists take part. Usually the engaged specialists give explanations with respect to different opinion polls on the similarity or distinctiveness of trademarks. Engagement of specialists is not very common in the patent cases (that are not very frequent in Latvia as such). Lately the activities of custom points have liven up in arresting counterfeited goods on the border.
As one of the insufficiencies for the protection of the well-known trademarks must be mentioned the lack of the procedure as to how it shall be established whether the trademark is or is not well recognized. The lack of such procedure has often caused difficulties for the companies who have had a strong basis to assume that the trademarks used by them, but yet not registered have become widely recognized in Latvia. Latvian courts do not accept the idea that trademarks may become widely recognized for Latvian consumers through mass media by containing, for instance, information on the widespread usage of these trademarks in other countries and territories. Only such evidences are accepted and examined that refer to the usage of these trademarks in Latvia.
In Latvian court practice the most frequently encountered disputes are claims on the trademark registration cancelling if this trademark may confuse consumers as to the character, quality or geographical indication of the goods or service. Whereas, the most common claims on the invalidation of the trademark registration are grounded by the fact that the disputed trademark is confusingly similar to some other trademark registered earlier or to some unregistered, but well recognized trademark. Claims on the infringement of the trademark rights (by using identical or confusingly similar trademarks) may be filed within three years starting from the moment when the aggrieved party has found out or should have found out about the infringement fact. The owner of the earlier trademark may claim the invalidation of the later registered trademark in Latvia within five years from its registration, except when the later trademark was applied for registration in bad faith.
One of the specifics for Latvian trademark market is that after regaining sovereignty those labels, which did not enjoy protection in the former USSR, were registered as trade marks in the Republic of Latvia. After regaining sovereignty the rights of the registered trademarks to the similar or completely identical trademarks were contrasted with the free usage of these labels.
The dilemma in the court practice was mainly solved in favour of the enterprise having successfully proved that the consumers recognize the product bearing the respective trademark as owned by that particular enterprise. Yet inconsistencies within the court practise appeared already during these proceedings. As already mentioned, the geographical indications are protected without their registration in Latvia. The protection of these indications is mainly expressed in the trademark disputes when the claims are based on such infringements that are related to the geographical indications.
Footnotes
1 Council EU Regulation no. 40/94 on Community trademarks, Paragraph 1 of Article 91
2 Council EU Regulation no. 6/2002 on Community designs, Paragraph 1 of Article 80
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
