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In this study we aim to analyse some aspects of nullity of trademarks in national legislation, as well as in european, as a result of juridical practice of the last period. In this regard we shall particulary focus on the problem of bad faith and that of prescriprion of the right of action.
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The main issue of this article is to argue if we already can speak about the law of internet as a separate branch ot law. The author analise some arguments for this opinion and concludes that for the moment there is not a distinct domain of law which deals only with the internet. Nevertheless, in his opinion, the individual has already a new right, namely the right to acces to the internet.
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The study contain a new matter which are confronted both the Romanian authorities with prerogatives for combating fake medicines trade and the medicines producers and distributors in Romania. In what follows we try to define counterfeit of medicine in Romanian legislation, to present the principals EU and international settlements for combating the counterfeiting of medicine, to examine the offence settled by article 834 from Law no. 95/2006 on Healthcare reform Title XVII – Medicine, to present methods to perpetrate the counterfeit of medicinal products in Romania, to present some evidence means for demonstration the perpetration of counterfeiting medicine products offence or illegal traffic of medicine products offence, national jurisprudence cases, social risk of fake medicines, the development of fake medicines trade in the last decade and the connection with organized crime, the improving of public-private partnership for combating this phenomenon and the necessity for arising consumer’s awareness regarding fake medicines.
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If the case-law on IP matters of the European Court of Justice and of the First Instance Court is relatively well-known and studied, the situation is different with regard to the jurisprudence of the other European Court, the European Court of Human Rights (ECtHR, the Court). The number of ECtHR cases on IP matters is not large, but one may note an increase in the last few years, including a Great Chamber judgment on a trademark issue. Given the supra-legislative status that the European Convention on Human Rights (the Convention) enjoys on the basis of the Romanian Constitution, the principles established in the case-law of the Court will influence domestic legislation and practice. This article provides a comprehensive analysis of the intellectual property case-law of the ECtHR. In the first part, I will make a short introduction regarding the ECtHR and the importance of its case-law for the Romanian Courts. In the second part I will provide an overview of the types of cases and problems which arose before the ECtHR with regard to IP matters. In the third part I will analyze the main institutions concerning the protection of the right to property, protected by the First Additional Protocol: the protection of „goods”, the interference and the conditions of the interference and the way they are applied to IP rights.
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This study is meant as a comparison between copywright and ownership of the common law, starting from the fact that the present legislation, namely Law nr. 8/1996 on copyright and related rights, approaches the copyright analitically, by talking about moral and economic rights that are due to the author of a literary, artistic or scientific work, but it does not claryfy the legal category that they fall into. This comparison is important in terms of shaping the legal nature of copyright given that this issue has been and continues to be the subject of controversy and given the fact that it approaches the real rights as exclusive rights of exploitation through the specific way of recovering the copyright by the author or his heirs (successors). Copyright holders have their attributes as jus possidenti, jus utendi, jus abutendi and jus fruendi and, from this perspective, they can be classified as real rights covering intangible assets, similarly to the property rights. Intellectual creation is considered the most personal, most legitimate, most sacred and most unassailable of all properties. The monopoly unpon the exploitation of copyright offers a striking analogy with the ownership in property rights. This is the most complete mastery that involves spiritual works and a modern form of appropriation of property. Copyright holder is the only entitled to exploit the intellectual property subject to his right, having the use of the work directly and immediately. Having all these in mind we can state that copyright implies more aspects than ownership itself.
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The author presents some preliminary notions concerning the informatics search activity in case of the offences committed in the field of intellectual property. The study also debate upon criminalistical tactical rules to be followed on the occasion of the preparation, development and results materialization of a IT system search.
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The article aims to bring forward Regulation (EC) No. 1901/2006 of the European Parliament and of the Council on medicinal products for paediatric use, effective since January 26th, 2007, and its consequences upon the monopoly secured to holders of patents or supplementary protection certificates for medicinal products. The regulation aims to facilitate the development and availability of medicines used in the paediatric population, on strength of introducing obligations, incentives and rewards in connection with clinical trials assessing this use. All applications for marketing approval for new medicinal products and those relating to new indications, new formulations and new routes of administration of medicinal products already approved, must include the results of the studies undertaken and details of all information collected in accordance with a Paediatric Investigation Plan (PIP). The reward thereto is that the holder of patent or supplementary protection certificate for the relevant medicinal product is entitled to a 6-month extension of the certificate’s duration.
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The present article intends to briefly analyze the main benchmarks which might be considered with a view to establish the relevant public in the pharmaceutical sector, with reference to distinction between over the counter medicine and medicine released based on a medical prescription, as well as the main guiding lines of the jurisprudence in this field, in the context of establishing the risk of confusion which would lead to a sign not being able to be registered as a trademark or being annulled in case it was registered in breach of prior rights.
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The author makes an in-depth analysis of the criminal offence provided under Art. 140 paragraph (1) of the Law on copyright and related rights. On this occasion, the analysis focuses on the object of the criminal safeguards, the subjects of the criminal offence, the objective and subjective side, the forms, means, penalties and certain procedural aspects related to the criminal action laid down under Art. 140 paragraph (1) letter (b). The author does not hesitate to express his viewpoint as to the constitutive content of this criminal action and propose his own ideas and solutions.
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Computer implemented inventions or software related inventions represents a dynamic area of technical solutions in the domain of information technology which, under known conditions of patentability: novelty, inventive step and industrial applicability, can be protected by patent. Claiming of such type of inventions is a difficult task which mainly comes from their specific nature of border between informatics and information technology but in the same time from a certain lack of experience and this is valid not only in Romania. This paper aims at presenting in a pragmatic manner, mostly based on concrete examples, how these inventions can be claimed in a patent application. The reader could in this way simply follow the manner indicated in the paper if he/she faces to apply for protection or defend for such type of inventions. The author makes in this article a first step in the Romanian literature dedicated to patent protection, of sistematisation of claims in computer/software implemented inventions.
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Patent litigations, particularly in nowadays highly innovative and interdependent world of business, tend to be very technical and complex. In this paper, we outline the essential aspects regarding patents in the information and communication technology field. Next, we present the legal framework for patent protection and summarize a number of relevant recent US cases. Finally, we draw our conclusion.
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The British government has announced a 'revolution' in rehabilitating offenders, to tackle some of the problems which many of them face, but it omits one serious disadvantage which many face: imprisonment itself. The article examines the consultative document, a central feature of which is to privatise much of the probation service on the basis of payment by results. It argues that the not-for-profit sector will be at a disadvantage, and proposes a network of local voluntary organizations, focused especially on restorative justice. The government is promoting deferred sentences; a further step would be deferred prosecution. The transformation should question the repeated emphasis on the ill-defined concept of 'punishment' (which is not as popular as often assumed), and replace it with 'consequences', which might also be unpleasant but would primarily be constructive measures aimed both at reparation and rehabilitation.
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Justiţia restaurativă este un concept teoretic puţin cunoscut, chiar şi în rândul specialiştilor din domeniul dreptului, cu atât mai puţin abordată în viaţa reală. Instituţionalizarea medierii şi apariţia practicii în domeniu, cu paşi timizi şi uneori contestată cu virulenţă în ceea ce priveşte recurgerea la această modalitate de soluţionare a disputelor în cauze penale, a creat baza legală pentru ca elemente ale justiţiei restaurative să îşi găsească locul în strategiile şi practicile care vizează reintegrarea socială a celor care au comis infracţiuni. O trecere în revistă a recomandărilor internaţionale cu privire la utilizarea medierii în cauze penale, prezentarea legislaţiei naţionale privind medierea şi modul în care se poate crea o practică benefică nu numai victimelor şi infractorilor, dar şi comunităţii constituie subiectele acestui articol, din perspectiva unui actual mediator, cu experienţă în sistemul justiţiei penale.
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Restorative justice has emerged from communities and through the passion of dedicated practitioners, victims and offenders. The future is uncertain as governments take interest in a top down and controlled version of this community led ethos. The paper identifies three opportunities for restorative justice, alerting the restorative justice movement that if it does not restore the damages caused by its own power-interest battles, it will soon be diminished.
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In this article, the author has provided a brief overview of diverse theoretical conceptions generated in the course of development of victimology both as an independent scientific discipline and as a sub-discipline of criminology. Starting from the concept of penal victimology and moving towards the concept of general victimology, the author presents the victimologists' critical remarks on general victimology as well as the opinions speaking in favour to penal victimology and feminist-oriented victimology. Further on, the author explores the concept of resilience and its significance in the treatment of crime victim.
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The Constitution of the Republic of Serbia (2006) and the Constitutional Court Act (2007) envisage vast competences of the Constitutional Court. The competence which proves to be a rather interesting matter of current debate refers to lodging special appeals with this Court. The Constitution has envisaged that these special appeals may be filed in several cases, in two of which the Court has explicitly precluded the right to file a constitutional appeal. This yields a conclusion that an appeal to the Constitutional Court and the constitutional appeal are two different legal remedies which consequently imply different competences of the Constitutional Court. A constitutional appeal may be lodged against individual legal acts or actions of state bodies of authority or organizations vested with delegated public authorities whose legal acts or actions either violate or deny the human or minority rights and freedoms guaranteed under the Constitution. A constitutional appeal may be lodged only if the appellant has exhausted all other legal remedies envisaged by the law or if a legal remedy has not been prescribed (Article 170 of the Constitution). On the other hand, an appeal to the Constitutional Court may be lodged directly on the grounds of constitutional provisions only for the purpose of protecting specific rights, such as: the rights of judges, public prosecutors and deputy public prosecutors concerning the termination of their public offices; the rights of the members of parliament concerning the confirmation of their terms of office, and the right to the province autonomy and local self-government. In spite of the apparent differences between these two legal remedies, the legal practice has recently encountered a problem regarding the application of these two types of appeal. The problem is related to a recent case on the termination of offices of judges, pubic prosecutors and deputy public prosecutors. In a large number of cases, the appellants concurrently lodged both legal remedies seeking adequate constitutional protection. The Constitutional Court was of the opinion that the unappointed judges and prosecutors are entitled to file an appeal with the Constitutional Court; thus, the Constitutional Court implicitly resolved the dilemma that was present in the general public on whether it was the issue of the judges' removal from office or a general judicial appointment. Apart from the inexact general terminology, the Constitution contains quite an imprecise definition on the legal nature of an appeal to the Constitutional Court. Considering the fact that an appeal to the Constitutional Court may be filed against individual legal acts and actions in different procedural circumstances, this may lead to a (wrong) conclusion that these appeals are different modalities of the constitutional appeal.
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The principle of popular sovereignty is defined in the Basic Principles of the Serbian Constitution, which provides two basic types of popular sovereignty: the direct exercise of power (in a referendum or a popular initiative) and the free election of representative bodies. The Constitution proscribes that the state bodies of authority, political parties and individuals shall neither usurp popular sovereignty nor establish government in contradiction with the free will of the people expressed in free democratic elections. The citizens' sovereignty and the free will (by which they express their sovereignty) are protected as the basic values of the constitutional system. The sovereignty of the state is first defined in the Preamble of the Serbian Constitution, in reference to the status of the Province of Kosovo and Metohija, where the Republic of Serbia is defined as a national state. However, this concept is differently defined in the normative part of the Constitution. The Basic Principles of the Constitution also contain legal provisions on the state sovereignty (including the state territory, state symbols, protection of citizens, the rights and the status of foreign nationals, etc). Being formal attributes of state sovereignty, state symbols are prescribed in the Basic Principles of the Serbian Constitution. The principle of legal sovereignty and the rule of law are explicitly defined in the context of a unified legal order. The Constitution is the supreme law of the land which all other legal acts and general regulations have to comply with. There is no explicit provision that either the Constitution or the statutory legislation shall be binding, i.e. that everyone shall be obliged to abide by them, but there are explicit legal provisions on the duty of the state administration, the courts, the judiciary and the public prosecutors to abide by the Constitution and the statutory law. In the constitutional provisions, it is also possible to identify certain differences in terms of the rules defining the framework and the limitations of activities of certain bodies of authority. The Constitution defines the rule of law principle as one of the vital and distinctive features of the legal state and the underlying principles it rests upon. The Republic of Serbia rests on the rule of law and social justice, on the principles of civic democracy, human rights and freedoms, and recognition of common European values. The legal content of the rule of law principle includes a hierarchy of legal rules, a unified legal order, a mandatory publication of legal rules, a prohibition of the reverse effect of legal acts and other regulations (except in cases permitted by the Constitution), judicial control of the legality of the administration activities. In a broader sense, the rule of law principle includes a functional, organizational and personal separation of powers (both horizontal and vertical).
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