Cyprus: Intellectual Property (3rd edition)

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This country-specific Q&A provides an overview to intellectual property laws and regulations that may occur in Cyprus.

This Q&A is part of the global guide to Intellectual Property. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/intellectual-property-third-edition/

  1. What different types of intellectual property rights exist in your jurisdiction to protect: (a) Inventions; (b) Brands; (c) Other creations, technology and proprietary interests

    (a) Inventions may be protected nationally under a patent granted pursuant to the Patents Law, Law 16(I)/1998 (as amended), provided it is novel, demonstrates an inventive step and has an industrial application. Accordingly, discoveries, scientific theories and mathematical methods, as well as aesthetic creations, designs/ rules/ methods for carrying out intellectual activities for games- carrying out economic activities- computer software and data presentation cannot be subject to patent protection. In addition, no patents may be granted in relation to an invention which is considered to be contrary to public order or public morality.

    It is important to note that inventions which have as their object a product which is made up of or contains biological material or a method for the production, processing or use of biological material, are patentable (biotechnology patents). Moreover, biological material which has been isolated from its natural habitat or has been produced with the aid of a technical method, may be the proper subject matter of an invention despite the fact that it pre-existed in nature.

    The law clearly stipulates that plant varieties and animal species cannot be the proper subject matter of a patent, unless the patent in question could be industrially applied to more than one specific plant variety or animal species, in which case a patent may be granted. Similarly, patents may be granted over inventions which have as their object a microbiological method or other technical methods or products produced using such methods.

    The human body, its various stages of development as well as the mere discovery of parts of the human body, including genome sequencing (whole or partial) are not patentable. In this vein, the law does not permit the grant of a patent of methods of human cloning, methods of altering genome genetic identity of the human species, uses of human embryos for industrial or commercial purposes, nor of methods of altering the genetic identity of animals who may be subjected to maltreatement without resulting into a major medical use to man or to animals or over animals who are produced using such methods.

    Cyprus being a party to the Patent Cooperation Treaty, may be included in the designated countries where protection would be sought. The merits of an application filed thus would be examined in Cyprus in accordance with the provisions of the national Patents Law.

    Moreover, Cyprus is a party to the European Patent Convention (‘EPC’) and thus an inventor may seek protection in Cyprus through the validation of a European patent in Cyprus. In case of any discrepancies between the EPC and the national patent law, the first prevails.

    Supplementary certificates may be granted under conditions in relation to licensed pharmaceuticals. The certificate may grant a maximum of an additional 5-year period of protection, provided the annuities are duly paid.

    There is no national law on trade secrets, despite the enactment of EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The deadline for enacting harmonisation legislation was 9th June 2018. Further, there are no specific laws on the protection of confidential information and/ or know-how. These may be protected contractually via specific agreements entered into between the parties.

    (b) Brands may be comprehensively protected in Cyprus through trade mark protection, the tort of passing off and unfair competition, certification marks, collective trade marks, designations of origin and geographical indications.

    The current law on trade marks is expected to be repealed within 2019 and be replaced with a new law which aims to align the national law on trade marks with EU Directive 2015/2436 on the approximation of the laws of the Member States relating to trade marks. The new legal framework is expected to provide new rules designed to create an efficient, transparent and modern trade mark system. Notable changes to the existing system include the abolition of the requirement that a trade mark must be graphically represented to be registrable, thereby paving the way for new types of marks to be registered such as holograms and multimedia marks. Further, the current single-class system will be replaced with a multi-class system, whilst the current initial 7-year period of protection will be replaced with an initial 10-year period of protection.

    (c) Copyright is granted over scientific works, literary works (which include computer software), musical works, artistic works (including photographs), films, data bases, recordings, broadcastings, publications of previously unpublished works. Copyright is attached to the work upon its creation, as there is no registrability requirement. Copyright arises provided that the work is capable of fixation and the work is novel.

    In addition to copyright, the Copyright and Neighbouring Rights Law, Law 59/1976 (as amended) recognises certain neighbouring rights over performances and enactments of works by artists.

    Designs are protected nationally pursuant to the Law on the Legal Protection of Industrial Designs and Models Law, Law 4(I)/2002 (as amended). An industrial design or a model may be protected provided it is new, it demonstrates an individual character and it is filed for registration in accordance with the provisions of the law. An industrial design or a model are defined as ‘the appearance of the whole or part of a product which comes about as a result of its characteristics and in particular, as a result of its outline, its colours, the shape, the feel and/ or the materials of the product and/ or of the decoration it bears’.

    Cyprus being a member of the EU, falls within the scope of protection resulting from the registration of an EU design.

    Semiconductors are protected under a specific law, the law on the Legal protection of topographies of semiconductor products, Law 5(Ι)/ 2002.

    Plant varieties are protected pursuant to the Law on the Protection of New Varieties of Plants, Law 21(I)/2004.

    (a) Inventions may be protected nationally under a patent granted pursuant to the Patents Law, Law 16(I)/1998 (as amended), provided it is novel, demonstrates an inventive step and has an industrial application. Accordingly, discoveries, scientific theories and mathematical methods, as well as aesthetic creations, designs/ rules/ methods for carrying out intellectual activities for games- carrying out economic activities- computer software and data presentation cannot be subject to patent protection. In addition, no patents may be granted in relation to an invention which is considered to be contrary to public order or public morality.

    It is important to note that inventions which have as their object a product which is made up of or contains biological material or a method for the production, processing or use of biological material, are patentable (biotechnology patents). Moreover, biological material which has been isolated from its natural habitat or has been produced with the aid of a technical method, may be the proper subject matter of an invention despite the fact that it pre-existed in nature.

    The law clearly stipulates that plant varieties and animal species cannot be the proper subject matter of a patent, unless the patent in question could be industrially applied to more than one specific plant variety or animal species, in which case a patent may be granted. Similarly, patents may be granted over inventions which have as their object a microbiological method or other technical methods or products produced using such methods.

    The human body, its various stages of development as well as the mere discovery of parts of the human body, including genome sequencing (whole or partial) are not patentable. In this vein, the law does not permit the grant of a patent of methods of human cloning, methods of altering genome genetic identity of the human species, uses of human embryos for industrial or commercial purposes, nor of methods of altering the genetic identity of animals who may be subjected to maltreatement without resulting into a major medical use to man or to animals or over animals who are produced using such methods.

    Cyprus being a party to the Patent Cooperation Treaty, may be included in the designated countries where protection would be sought. The merits of an application filed thus would be examined in Cyprus in accordance with the provisions of the national Patents Law.

    Moreover, Cyprus is a party to the European Patent Convention (‘EPC’) and thus an inventor may seek protection in Cyprus through the validation of a European patent in Cyprus. In case of any discrepancies between the EPC and the national patent law, the first prevails.

    Supplementary certificates may be granted under conditions in relation to licensed pharmaceuticals. The certificate may grant a maximum of an additional 5-year period of protection, provided the annuities are duly paid.

    There is no national law on trade secrets, despite the enactment of EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The deadline for enacting harmonisation legislation was 9th June 2018. Further, there are no specific laws on the protection of confidential information and/ or know-how. These may be protected contractually via specific agreements entered into between the parties.

    (b) Brands may be comprehensively protected in Cyprus through trade mark protection, the tort of passing off and unfair competition, certification marks, collective trade marks, designations of origin and geographical indications.

    The current law on trade marks is expected to be repealed within 2019 and be replaced with a new law which aims to align the national law on trade marks with EU Directive 2015/2436 on the approximation of the laws of the Member States relating to trade marks. The new legal framework is expected to provide new rules designed to create an efficient, transparent and modern trade mark system. Notable changes to the existing system include the abolition of the requirement that a trade mark must be graphically represented to be registrable, thereby paving the way for new types of marks to be registered such as holograms and multimedia marks. Further, the current single-class system will be replaced with a multi-class system, whilst the current initial 7-year period of protection will be replaced with an initial 10-year period of protection.

    (c) Copyright is granted over scientific works, literary works (which include computer software), musical works, artistic works (including photographs), films, data bases, recordings, broadcastings, publications of previously unpublished works. Copyright is attached to the work upon its creation, as there is no registrability requirement. Copyright arises provided that the work is capable of fixation and the work is novel.

    In addition to copyright, the Copyright and Neighbouring Rights Law, Law 59/1976 (as amended) recognises certain neighbouring rights over performances and enactments of works by artists.

    Designs are protected nationally pursuant to the Law on the Legal Protection of Industrial Designs and Models Law, Law 4(I)/2002 (as amended). An industrial design or a model may be protected provided it is new, it demonstrates an individual character and it is filed for registration in accordance with the provisions of the law. An industrial design or a model are defined as ‘the appearance of the whole or part of a product which comes about as a result of its characteristics and in particular, as a result of its outline, its colours, the shape, the feel and/ or the materials of the product and/ or of the decoration it bears’.

    Cyprus being a member of the EU, falls within the scope of protection resulting from the registration of an EU design.

    Semiconductors are protected under a specific law, the law on the Legal protection of topographies of semiconductor products, Law 5(Ι)/ 2002.

    Plant varieties are protected pursuant to the Law on the Protection of New Varieties of Plants, Law 21(I)/2004.

  2. What is the duration of each of these intellectual property rights? What procedures exist to extend the life of registered rights in appropriate circumstances?

    Patents offer protection for 20 years from the filing date of the application, provided the annuities are paid for each year. In respect of patents granted in relation to pharmaceuticals, under conditions, it is possible to secure a supplementary certificate and extend the protection with an additional period of 5 further years. Further, if the patent concerns a pediatric medicine an additional protection of 6 months is granted, following the filing of a relevant application.

    A trade mark is currently protected for an initial 7- year period, which may be renewed upon payment of the renewal fee at the Trade Marks Registrar for further 14-year periods.

    A copyright is effective during the author’s lifetime, plus 70 years following his/ her death. In the event that the copyright is vested in a legal entity, copyright lasts for 70 years from the date that the work is published. In case a work is anonymous, it is protected with copyright for a 70-year period from the date that the work is made accessible to the public.

    A design is valid for an initial period of protection of 5 years and may potentially be renewed for further 5-year periods, reaching a maximum 25-year period of protection. Protection may be granted for as long as the design remains ‘new’ and demonstrates an ‘individual character’.

    Domain names may be registered for renewable one or two-year periods. Depending on the point in time that the domain name application is filed, the registration fee varies- the later an application is filed from 1st January of the year in question, the lower is the fee.

  3. Who is the first owner of each of these intellectual property rights and is this different for rights created in the course of employment or under a commission?

    As far as patents are concerned, the right to the patent belongs to the inventor or to his/ her lawful heirs. However, in the event that an invention is discovered pursuant to the execution of a commission or during the course of one’s employment, the invention belongs to the person commissioning the work or the employer, unless there are contractual arrangements to the contrary. The employee in such case has a right to a just remuneration, taking into account his/ her wage, the economic value of the invention and the reaping of any benefit from it by the employer.

    The owner of a copyright is the author of the copyrighted work, unless, such work comes about as a result of a commission or in the course of one’s employment, in which case it is the person who commissions the work or the employer, who is entitled to copyright over the work.

    A trade mark is owned by the applicant of the mark. In certain cases where one may prove, to the satisfaction of the Trade Marks Registrar or a competent court of law, concurrent honest use of a mark by more than one person, it may be permitted for a mark which is identical or similar to another mark to be registered in the name of more than one rightholder, in relation to identical or similar goods.

    In respect of domain names, the University of Cyprus is the Administrator of domain names who has the right to domain names ending in ‘.cy’ (Level B and C categories). Any applicant for a domain name is a licensee of the domain name in question who enters into a license agreement with the Administrator.

  4. Which of the intellectual property rights described above are registered rights?

    Patents, trade marks, association marks, certification marks, designations of origin, geographical indications, designs, domain names, plant varieties and SPCs are registered rights.

  5. Who can apply for registration of these intellectual property rights and, briefly, what is the procedure for registration?

    Any natural or legal person may apply for a Cyprus patent and for a Cyprus trade mark.

    The patent application (Π9) may be filed by the inventor or an appointed lawyer who is a member of the Cyprus Bar Association. The application is made using a prescribed form that is filed at the Office of the Registrar of Companies (the ‘Registrar’) and contains the following parts: a request for the grant of a patent, a description of the invention, the claims, designs and a summary of the invention. The inventor(s) must be mentioned in the application and the application fee must be paid. The patent text must be filed in both Greek and English, as the Registrar uses the services of the EPO for the purposes of carrying out a search over prior art and examination of the inventive step.

    The Registrar examines the application from a formalities’ perspective. In case anything is amiss, the applicant is duly notified and is provided with a timeframe during which any deficiency must be rectified. In the event that the deficiencies are not rectified, the application is considered abandoned. Upon receiving a filing date, the application is transmitted to the European Patent Office for examination, which issues a search report. The Registrar then takes a decision on the merits pursuant to the search report results. The applicant should then pay the grant fee as well as the publication fee within 3 months from notification of the decision.

    As regards supplementary certificates for pharmaceutical products, these may be applied for via applications (Π19) filed within 6 months from the date that a marketing authorization is issued vis-à-vis the pharmaceutical product in question.

    A trade mark application may be filed by an advocate who is a member of the Cyprus Bar Association, using a specific form. The application may be filed manually or electronically; if filed manually, an authorization (ΕΣ 1) must be filed in addition (for the appointment of the trade mark representative). The application contains a graphical representation of the mark, details of the goods/ services claimed (Cyprus currently has a single- class system) as well as of the applicant. The application is examined on the basis of absolute and relative grounds by the Registrar and provided no issues arise, the application is published in the Official Gazette of the Republic, which is the kick-off date of the period during which oppositions may be filed (a two-month period).

    A design application may be filed by the creator thereof, provided they are either a natural or a legal person. In the case of a natural person, s/he must be a citizen of the Republic of Cyprus or of a member state of the EU or who have their usual residence in Cyprus or in a member sate of the EU. In the case of legal persons, they should have their real industrial or commercial establishment in Cyprus or in a member state of the EU. Applications are filed with the Registrar (either by the applicant or by a duly authorised lawyer).

    The application for the registration of a domain name does not provide any rights vis-à-vis the domain name or any trademark. The application must be filed using a specified form and accompanied by the necessary certificates proving that the person acting either as the applicant or his/ her authorised representative duly has the said capacity. Accordingly, an I.D. card or a passport must be filed, or a certificate of incorporation (whichever applies).

  6. How long does the registration procedure usually take?

    The grant of a patent (assuming there are no objections along the way), would take around a year to a year and a half from the filing date.

    The registration of a trade mark (assuming there are no oppositions along the way) would take anything between 6 to 9 months from the filing date.

    The grant of a design right would take around 5 months from the filing date.

    Domain names may be secured within a couple of working days from the date of filing. The applicant should file within 6 working days from the date the Administrator informs the applicant that a domain name is available, all accompanying documents requested by the Administrator (e.g. certificate of incorporation, authorised representative declaration, trade mark registration certificate, etc.), in person or by fax, or email or in electronic form as well as pay the relevant fee.

  7. Do third parties have the right to take part in or comment on the registration process?

    Third parties may intervene in the application process of trade marks, in the course of the filing of an opposition during the two-month period following the publication of a trade mark application in the Cyprus Official Gazette. The filing of an opposition initiates the opening of opposition proceedings resolved through a procedure which involves the filing of written statements (opposition grounds and evidence to support them) and a hearing before the Registrar.

    As regards patents, third parties have a right to intervene only once a patent has been granted and a request is filed for the correction of a patent. Such a request is advertised and a third party may file an opposition to the request for correction (Form Π. 6).

  8. What (if any) steps can the applicant take if registration is refused?

    The decision of the Registrar regarding the approval of a patent as well as a trade mark and a design application, constitutes an administrative decision and as such, it may be appealed against with a recourse filed in the administrative court, within 75 days from the date of the decision.

  9. What are the current application and renewal fees for each of these intellectual property rights?

    PATENTS

    Application fees: 100 EUR (this relates only to the filing of an application for a patent)
    Renewal fees: There are no fees due for the first two annuity payments. Thereafter, the fees are at 50 EUR (third year annuity), 60 EUR (fourth year annuity), 80 EUR (fifth year annuity), 100 EUR (sixth year annuity) and rise incrementally on a yearly basis, with the 20th year annuity being equal to 660 EUR.

    TRADE MARKS

    Application fees: 50 EUR (for a mark in one class, relates only to the filing of an application. There is an additional fee of 100 EUR for the issuance of a registration certificate.)
    Renewal fees: 80 EUR (for a mark in one class)

    DESIGNS

    Application fees: 85.43 EUR

    Renewal fees:

    - Year 1: 51.26
    - Year 2: 85.43
    - Year 3: 136.69
    - Year 4: 170.86
    - Year 5: 256.29

    DOMAIN NAMES

    Both the application fees as well as the renewal fees are dependent on the specific point in any given year that such fees are paid.

    The later an application is filed in a year, the lower the fees and the later in a year that the renewal fees are paid, the lower they are.

    The fees range from 8.28 EUR to 15.52 EUR for an one-year license registration and for a renewal, whilst for a two-year registration, fees range from 18.62 EUR to 25.87 EUR.

  10. What are the consequences of a failure to pay any renewal fees and what (if any) steps can be taken to remedy a failure to pay renewal fees?

    Patent annuities should be paid three months before the expiration of the first or succeeding year (whichever applies). In cases where the annuity is not paid thus, it may still be paid within a grace period of six months from, along with the payment of a surcharge. If an annual fee is not paid in accordance with the above, the application shall be deemed to have been withdrawn or the patent would be considered as having lapsed. A withdrawn patent or a lapsed patent may be restored following the filing of a restoration request to the Registrar within a 12-month period from the withdrawal/ lapse, provided the Registrar is satisfied that the failure to pay the annual fee concerned was unintentional and all annual fees due have been paid. In the event of a positive decision, the annuity and the surcharge fees should be paid, along with a restoration fee. Any interested person may appeal to the court against the decision of the Registrar granting or refusing to grant a request for restoration.

    In the event that renewal fees are not paid within the stipulated time frame (within the three-month period prior to the lapse of registration- within this time frame the Registrar informs the right holder of the impending lapse of the registration), the Registrar publishes a notice in the Official Gazette of the Republic that the mark shall be deleted from the register if the renewal fee is not paid within the two month period from the date of publication. The renewal fee (80 EUR) along with a penalty fee (20 EUR) are payable. If these fees are not paid duly, there is still an opportunity for a right holder to file a request for the re-registration of the mark with the filing of a specific form (No. 13) and the payment of a fee (30 EUR), which is at the discretion of the Registrar whether to approve it or not.

    The renewal fees for a design must be paid within the last three months prior to the expiration of any five-year period. In the event of default, there is a grace period of six months after the expiration of the 5-year period in question, during which the renewal fee must be paid. If no payment is made within this grace period, there is no opportunity to restore the design right.

  11. What are the requirements to assign ownership of each of the intellectual property rights described in section A?

    An assignment may be recorded via the filing of a request for recordal of a change of ownership of an application or of a patent (using Form Π. 3). This must be accompanied by the assignment agreement (duly certified and accompanied by a Greek translation if it is in a foreign language) which must contain at least the serial number and date of the patent application or of the patent, the title of the invention and the names, addresses, nationalities, and signatures of the assignor and assignee. Further, a power of attorney issued by the assignee must accompany the form. Fees due to the Registrar apply.

    In order to record a trade mark assignment, a specific form must be filed (Ε.Σ. 16) the assignment agreement (duly certified) and accompanied by a Greek translation if it is in a foreign language, must be filed with the Registrar and be accompanied by a power of attorney issued to the lawyer filing the assignment recordal. The filing may be effected any time following the execution of the assignment agreement, however, the applicable fees increase the later one files following the signing of the assignment agreement.

    As regards certification marks, these may be assigned only with the special consent of the Registrar.

    Copyright may be assigned via an assignment agreement in writing entered into between the assignor and the assignee. Importantly, it is possible to enter into an agreement for the assignment of future works.

    Registered designs may be assigned with the filing of an assignment agreement (notarized original or certified copy thereof).

    It is not possible to assign domain names.

  12. Is there a requirement to register an assignment of any of these intellectual property rights and, if so, what is the consequence of failing to register?

    It is imperative that the assignment of a patent, trade mark, certification mark, design right be recorded as outlined above in order for these to be actionable.

  13. What are the requirements to licence a third party to use each of the intellectual property rights described in section A?

    The Patent Law does not provide any conditions and/ or formalities for the grant of a license over a patent. Any licenses may be created pursuant to a contractual arrangement between the patent holder and a licensee. The said law however, does provide for compulsory licenses which may be granted by the Registrar pursuant to a relevant application by any person, once 4 years have lapsed from the date of filing of the patent application (or any other period determined by the Registrar). In order for a compulsory license to be granted, one of the reasons set down in the said law must be fulfilled. These reasons include the following:

    - When the patent may be industrially applied in Cyprus however, it is not used satisfactorily or it is not being used in the full extent that it is logically possible;
    - When the patented invention is a product for whose demand in Cyprus is not met or it is not met reasonably;
    - Due to the refusal of the patent holder to grant license(s) with reasonable terms, the patented product which is manufactured in Cyprus is not exported.

    A trade mark may be licensed to another pursuant to a license agreement and such license must be notified to the Registrar in writing via a petition in a specified form to be submitted by the right holder and the proposed licensed user, along with an affidavit made by the right holder, which would contain the following: details of the extent of the license, whether the license is an exclusive one or not, any other condition regarding the persons who may submit an application to be registered as licensed users, details of the goods/ services that the license relates to, licensing period, any other terms regarding the license such as territory that the license applies to, etc.

    As regards the grant of an exclusive license regarding copyright, this has to be in writing. Any non-exclusive license over copyright may be created pursuant to either an oral or a written agreement, or may be gleaned from the conduct of the parties.

    Α design may be licensed pursuant to a license agreement which is granted for a consideration for a limited period of time. The said license is registered in the Register of Designs and is published in the Official Gazette of the Republic, unless the contrary is agreed. Any license granted cannot be exclusive, it cannot be assigned and cannot be inherited. The registration application must be accompanied by the license agreement, along with the documents which confirm the capacity of the contracting parties. The genuineness of the signatures of the licensor and the licensee must have been certified in accordance with applicable legislation.

  14. Is there a requirement to register a licence of any of these intellectual property rights and, if so, what is the consequence of failing to register?

    It is imperative that the grant of a (compulsory) license for a patent, trade mark, certification mark, design right be recorded as outlined above in order for these to be actionable.

  15. Are exclusive and non-exclusive licensees given different rights in respect of the enforcement of the licensed IP, and if so, how do those rights differ?

    The rights of exclusive and non-exclusive licensees in terms of enforcement are not differentiated in any of the applicable laws; any differences would be found in the specific agreements creating the licenses.

  16. Are there criminal sanctions for infringement of any intellectual property rights, and if so, what are they and how are they invoked?

    The law on patents does not provide for any criminal sanctions in case of patent infringement. However, in case of a court finding that there has been a patent infringement, the Court may order the infringer not to repeat the infringement in the future; if so, the Court would have the power to impose for compliance purposes a monetary fine of up to 59,850.00 EUR or to imprisonment up to 3 years, or to both of these sentences.

    In case of a finding of trade mark infringement by a court, the court may order the infringer not to repeat the offense in the future. In case of non-compliance, the Court may impose for compliance purposes a monetary fine of up to 59,850.00 EUR or to imprisonment up to 3 years, or to both of these sentences.

    Further, in case any person acts or procures that a false entry is made in the Registrar’s Trade Marks register or acts or procures that a document be drafted in which it is falsely presented as a copy of the trade marks register entries, or introduces or professes or procures that such false document be presented as evidence, is guilty of an offence which in case of conviction is subject to imprisonment up to 1 year or to a fine which would not exceed 1710 EUR or to both of these sentences.

    As far as copyright infringement is concerned, following a conviction for copyright infringement a court may order the infringer not to repeat the offence. In case of non-compliance, the Court would have the power to impose for compliance purposes a monetary fine of up to 59,850.00 EUR or to imprisonment up to 3 years, or to both of these sentences.

    The fraudulent use of a design is a criminal offence which is punishable with a prison sentence of up to two year or with a fine up to 85,500 EUR or to a combined sentence.

    According to the Law on the Control of Movement of Goods which violate IP rights, Law 61(I)/ 2018, it is an offence for any person to be involved in the following acts in relation to goods which violate IP rights:

    - The submission of a customs declaration for the supply of goods in free circulation, for exportation or reexportation in accordance with the Community Customs Code;
    - The importation or exportation of goods from the customs territory of the Republic;
    - The subjection of goods in special regimes in accordance with the Union Customs Code.

    Any person who purposely commits any of the aforementioned offences may be convicted and sentences to a fine of up to 30,000 EUR, or to a prison sentence not over 3 years or to a combination of these two sentences.

    Any person who unwarily commits any of the aforementioned offences may be convicted and sentences to a fine of up to 15,000 EUR.

  17. What other enforcement options are available in your jurisdiction for each of the intellectual property rights described in section A? For example, civil court proceedings, intellectual property office proceedings, administrative proceedings, alternative dispute resolution.

    Any decision issued by the Registrar regarding any proceedings before it (registration, opposition, revocation, expungement, revocation, reinstatement) is an administrative decision which may be appealed against with a recourse filed in the Administrative Court. There is a strict 75-days timeframe during which a recourse must be filed.

    A patent owner may file a civil action in the district court for patent infringement (past or on-going) seeking damages and/ or for the issuance of an injunction. In case of a finding of patent infringement, a court may order the infringer to refrain from repeating the offence and in case of default, the court may impose a monetary penalty not over 85,500 EUR or a prison sentence up to 3 years, or to both of these sentences.

    Α copyright owner may file a civil law suit for copyright infringement and in case of a judgement in its favor, the court may order the infringer to refrain from repeating the offence in the future. In case of default, the court may impose a monetary penalty of up to 85,500 EUR or imprisonment not exceeding 3 years or to a combined sentence.

    A trade mark owner may seek a declaratory judgement which would confirm the validity of the registration of the trade mark. Further, a trade mark owner may file a civil law suit for trade mark infringement and in case of a judgement in its favor, the court may order the infringer to refrain from repeating the offence in the future. In case of default, the court may impose a monetary penalty of up to 85,500 EUR or imprisonment not exceeding 3 years or to a combined sentence.

    Moreover, a trade mark owner may file a passing off action (based on tort law) in a civil court.

    In addition to the above, right holders may also resort to court to obtain disclosure orders, freezing orders, search orders in accordance with specific rights provided in the respective IP laws.

  18. What is the length and cost of such procedures?

    The length and cost of any court proceedings cannot be determined in advance, as these would depend on the complexity of the case.

    Costs would be adjudicated in accordance with the quantum of damages sought and the nature of the IP right at issue.

    Given the backlog which is observed in Cyprus courts, it is not unusual for any court proceedings to be concluded within a 5-6 year period from the date of filing.

  19. Where court action is available, please provide details of which court(s) have jurisdiction, how to start proceedings, the basics of the procedure, the time to trial, the format of the trial, the time to judgment and award of relief and whether any appeal is available.

    A court action for an infringement of an IP right is commenced with the filing of a writ of summons, generally endorsed.

    The suit is served to the defendant who has the right to file an appearance to the court proceedings in question and thereafter a defence.

    Following the submission of the pleadings (i.e. particulars of the claim, defence and counterclaim, response of plaintiff), the hearing stage would take place. The trial has an adversarial character and the level of proof is the balance of probabilities.

    In certain cases which concern copyright infringement and the proceedings relate to a criminal offence, the burden of proving the existence or a license or consent of the beneficiary regarding control of a work or of a substantial part thereof, is born by the defendant.

    In copyright infringement cases where there is either proof of the infringement or a confession thereof, however, it is proven that at the time of the infringement the defendant had not known, nor had any valid reasons to believe that the work under dispute was protected by copyright, the plaintiff is not entitled to any damages due to the infringement. However, the plaintiff would be entitled to an account of profits.

    In adjudicating damages for copyright infringement, the Court would take into consideration the gravity of the infringement and any benefit which is proven to have been gained by the defendant due to the infringement.

    The Police is granted powers, in cases of copyright infringement which have been settled, to destroy any infringing goods without compensating the defendant, or to take them of the market, as well as to take against the goods any other measure which has the effect of effectively preventing the defendant(s) from reaping any economic benefit from infringing acts.

    Any decision of a civil court may be appealed again with a recourse to the Supreme Court of Cyprus.

    A civil action for infringement of an IP right would customarily seek damages and further, a declaration that an infringement has occurred, possibly an injunction preventing the defendant from repeating the offence, an account of profits as well as legal costs and legal interest.

    Interim orders may be sought in the form of an injunction, such as freezing order, disclosure orders, inspection orders and search orders.

  20. What customs procedures are available to stop the import and/or export of infringing goods?

    The Customs and Excise Department has exclusive powers to control goods which prima facie violate IP rights, such as counterfeit products, as well as products which violate any patent rights, SPC goods, trade mark rights, copyright, geographical appellations of origin, design rights, etc. Pursuant to the law on the Control of Movement of Goods which violate IP rights, Law (61(I)/2018, the EU regulation 608/2013 as well as the Commission Executive Regulation 1352/2013, the Customs and Excise Department (‘CED’) has the powers to seize goods at their point of entry in/ exit from Cyprus. The CED may also destroy the goods on suspicion that there infringe IP rights, without being required to establish that there has indeed been an IP right violation. The CED notifies the person responsible for the suspected products prior to any such action, who in turn has a right to object to their destruction.

    Any right holder may file a customs Application for Action (AFA) to the CED, for the said department to act at the borders on behalf of the right holder, either on occasion of importation or exportation of goods. Once an AFA is filed, the CED may detain goods found to be suspected of infringing any IP rights thus declared in the AFA. The application may be national or European. All the relevant forms to be submitted to the CED for these purposes may be found at the following link:

    https://www.mof.gov.cy/mof/customs/Customs.nsf/All/6BDE2AD32CFB8E3E42257731002AF832?OpenDocument

  21. Are any non-court enforcement options or dispute resolution mechanisms mandatory in respect of intellectual property disputes in any circumstances? If so, please provide details.

    No such mandatory options/ mechanisms are provided for in the respective IP laws.

  22. What options are available to settle intellectual property disputes in your jurisdiction?

    Disputes may be resolved through the court system as well as by arbitration and by mediation (provided the parties agree to either of these methods of dispute resolution).

  23. What is required to establish infringement of each of the intellectual property rights described in section A? What evidence is necessary in this context?

    Patent infringement is found whenever a third party, without the consent of the patent holder, commits any of the following:

    • Produces a product of the patented invention;
    • Offers or supplies the product of the patented invention in the market, uses such a product or imports or stores this product for offer or supply in the market or for a similar use;
    • Urges a third party to commit any of the aforementioned acts;
    • In the event where the patent concerns a method, it is considered patent infringement if any of the following acts are committed by a third party without the consent of the patent holder:
    • The use of the method which is the subject of the patent;
    • In respect of any product which is the direct result of the method, to commit any of the acts mentioned in the first two bullet points hereinabove;
    • To urge a third party to commit any of the above;
    • The provision by a third party- without the consent of the patent holder- of any means related to the invention, to any person, for the sole purposes of working the patent, when that third person knows or it is obvious under the circumstances, that these means are suitable or were intended to be used for the working of the patent.

    Copyright infringement is found when any third party, without the consent of the copyright owner, engages in any of the following acts vis-à-vis the protected work or of a substantial part thereof (provided none of the limited and exhaustive exceptions set out in the relevant law, apply): reproduction, advertising, sale, leasing, distribution, lending and presentation to the public of the original work and copies thereof; broadcasting to the public, transmission, presentation to the public via satellite, cable broadcasting; translation, adaptation and any other form of adjustment; presentation of the works to the public- with wire or wireless, along with the authors having the right to render their works accessible to the public in the manner they decide. Moreover, the applicable law sets out a specific act which constitutes infringement when it comes to an architectural work, a computer software programme, a database, a previously unpublished work.

    Trade mark infringement is found when a third party, without the authority of the right holder, uses in its commercial dealings a mark which is:

    • Identical to the registered trade mark in relation to goods/ services which are identical to the goods/ services in relation to which the mark has been registered;
    • Identical or similar to the registered mark and due to its identity or similarity with the mark or the identity or similarity of the goods/ services covered by the registered mark and the mark, there is a likelihood of confusion of the public, including the likelihood of association with the registered trade mark;
    • Identical or similar to the registered mark, used in relation to dissimilar goods/ services to the ones for which the trade mark has been registered, if the registered trade mark enjoys a reputation in Cyprus and the use of the mark, without due cause, would result to, without any cost, a benefit as a result of the distinctive character of the registered mark, or it would be harmful to its distinctive character or goodwill.

      ‘Use of a mark’ may be comprised of the following acts:

      • the affixing of the mark on goods or on their packaging;
      • the supply of goods or their trading or their possession for trading or the supply or provision of services under the mark;
      • the importation or the exportation of goods under the mark;
      • the use of the mark on professional written material and in advertising.

    Design infringement occurs when a third party uses the design without the consent of the right holder. ‘Use’ may include the manufacture, offer, supply in the market, importation, exporting or use of the product unto which the design has been embodied or applied, as well as the storage of the product bearing the design for the aforementioned purposes.

    The tort of passing off requires proof of the following elements to be substantiated:

    1. Proof of goodwill/ reputation attached to the goods/ services of the trade mark owner.
    2. Proof of misrepresentation of the goods/ services offered by the defendant as goods/ services emanating from the trade mark owner. Intention is not relevant in this assessment;
    3. Proof of likelihood of damage resulting from the deception.
  24. How does the court acquire any necessary information (fact or technical) and in what circumstances does it do so? In particular – a) Is there a technical judge, a judge with technical experience, a court appointed expert, an expert agreed by the parties, and/or parties’ expert witness evidence? b) What mechanisms are available for compelling the obtaining and protecting of evidence? Is disclosure or discovery available?

    a) There is no technical court, neither is there a technical judge or a judge with technical experience. Expert witnesses may be called to testify before the court, to assist with the presentation of technical matters/ questions. Any party may bring their own expert witnesses to testify and be subjected to cross-examination.

    b) In both patent and copyright cases, the respective laws provide for specific powers to the court, to issue a disclosure order; in the case of copyright, the court has the power to issue an order demanding that the counterparty who is purported to have under his/ her control proof/ evidence of copyright infringement, to disclose same to the other party. Further, in cases where there is an allegation that IP rights are violated on a commercial scale, the court may issue- following an application filed by one of the parties- a court order demanding the disclosure of banking, financial or commercial documents to the other party.

    In addition, Norwich Pharmacal orders may be issued (disclosure orders against third parties), along with Anton Piller orders (search orders).

  25. How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?

    The Cyprus legal system is adversarial. Evidence is submitted through affidavits and presented through oral testimony, whereby witnesses may be cross-examined by the counterparty through procedures providing for examination in chief- cross- examination and re-examination.

  26. What defences to infringement are available?

    The following constitute a defence to an allegation of patent infringement by a rightholder:
    - when the act concerns a product which was placed in the market by the owner of a patent or with his/ her express consent, provided that such an act had been committed after the product had been placed in the Cyprus market;
    - when the act is carried out privately and not on a commercial scale, provided that it does not affect substantially the economic interests of the owner of the patent;
    - when the act is comprised of the manufacture or the use for purely experimental reasons or for scientific research;
    - when the act is comprised of a loose preparation in individual cases, in a pharmacy or by a doctor, of medicines in accordance with a prescription or when the acts concern a medicine which is thus prepare.
    The following constitute some of the exemptions to copyright infringement:
    - The carrying out of any acts which would customarily constitute copyright infringement, in case these are done in good faith for research purposes, for private use, critical review or reference to current affairs, provided that in case such use is done publicly, this must be accompanied by an acknowledgement of the title and fatherhood of the work, with the exception where the work has incidentally been included in a broadcast;
    - The inclusion in a movie or broadcast of any artistic work which is installed in a place where this may be viewed by the public;
    - The reproduction and distribution of copies of any artistic work which is permanently installed in a place where this may be viewed by the public;
    - The incidental inclusion of a literary work in a movie or a broadcast;
    - The inclusion of a work in a broadcast, transmission to the public, recording, film or collection of works, provided that such inclusion is done by way of an explanation for teaching purposes and does not go against customary practice and provided that a special mention of the source and the name of the creator are made, which appear on the work which uses the work thus;
    - The setting out of excerpts from works which have been published, provided that this does not go against customary practice and provided that the extent of these does not exceed the length which would be justified for this purpose, including the setting out of excerpts from newspaper articles and magazines by way of a summary, provided that the source and the name of the author appear in the work using these excerpts;
    - The reproduction in the press, or by presentation to the public of published articles for economic, political or religious matters in current affairs or TV broadcasted works, whenever use thereof is not expressly prohibited and provided that the source and the name of the author are mentioned and provided that the extent of use is justified for journalistic purposes;
    - Any reproduction of a work which is carried out by libraries, scientific institutions, educational institutions, museums or archives which are open to the public and where the act of reproduction does not have as an aim- directly or indirectly- any commercial or economic benefit;
    - Any use of a work, provided this is for parliamentary or administrative purposes or for reference in any such proceedings;
    - Any reproduction in any means carried out by a natural person for private use and for not directly or indirectly commercial purposes, provided the beneficiaries receive just compensation, taking into consideration the application or not of technological means unto the specific work;
    - Any use of a work which is for the benefit of invalid persons, where the use is connected with the invalidity and does not have a commercial character, to the extent required by the invalidity in question.
    As regards trade marks, once a product bearing the trade mark has been put on the market in the EU, the trade mark right is deemed to have been exhausted and the trade mark owner cannot object to the subsequent commercial exploitation of the goods bearing the said mark.
    Further, in cases where in respect of goods which in commerce are associated with a trade mark owner who in relation to those goods (all or some of them), has used the trade mark and subsequently removed or deleted it or silently consented to the use of the said mark, use of the said mark by a third party without a license or consent by the trade mark owner, would not be considered infringement.
    In addition, in cases where certain goods have been adjusted in order to form part or be a complement to other goods in relation to which a mark has been used without infringing the said, provided the said use is logically necessary in order to denote that the goods have been adjusted in this manner and neither the aim nor the actual result of such use suggest otherwise, apart from denoting some connection in trade between any person and the goods, would not constitute trade mark infringement.
    Honest concurrent use of a trade mark may also constitute a defence, provided the court or the Registrar adjudicating the matter where this ground is raised, acknowledges it as such.
    The following constitute defences to a claim for design infringement:
    - For acts carried out for experimental purposes;
    - For acts of reproduction of the design or the model for demonstration or teaching purposes, provided that these acts do not contravene transaction customs, do not harm the customary exploitation of the design or the model and provided that the source from where they are derived is mentioned;
    - For use in the equipment of ships and aircrafts registered in another country, when they enter Cyprus temporarily, in the importation in Cyprus of spare parts with the aim of repairing the said ships and aircrafts and in the carrying out of repairs on them.

  27. Who can challenge each of the intellectual property rights described above?

    Any person may file a claim.

  28. When may a challenge to these intellectual property rights be made (e.g. during any registration process or at any time during the subsistence of the right)?

    There is no scope for the filing of a challenge during the application process of a patent. Following the grant of a patent, any person may file in court an application for the cancellation of a patent certificate (on substantive grounds as well as in case where there is an allegation that the patent had been awarded to a person not entitled to it). Moreover, third parties have a right to intervene once a patent has been granted by filing a request for the correction of a patent. Such a request is advertised and a third party may file an opposition to the request for correction (Form Π. 6).

    During the application process of a trade mark, following its publication for opposition purposes, within two months from publication any third party may file an opposition against the trade mark application, basing the opposition on ‘prior rights’. Similarly, the Registrar may raise an objection to the registration of a trade mark, based either on absolute grounds and/ or on relative grounds of refusal. In addition, once a trade mark has been granted, it may be susceptible to a revocation if the mark has not been used for a period of 5 years and there is no reasonable cause for its non-use, following its registration. A revocation application may be filed in Court or at the Registrar.

    A registered design may be invalidated by a court decision following the filing of a relevant claim, on either substantive grounds or on the basis of a claim that the design had been granted to a person not entitled to the design as per the provisions of the relevant law (i.e. the creator or the beneficiary).

  29. Briefly, what is the forum and the procedure for challenging each of these intellectual property rights and what are the grounds for a finding of invalidity of each of these intellectual property rights?

    As aforementioned, a patent certificate may be challenged in Court or before the Registrar, either on substantive grounds (e.g. the patented invention was not novel) or on the grounds that the patent holder was not entitled to the patent award (e.g. a case of a patent application filed mala fide).

    Similarly, as mentioned above, a trade mark registration may be challenged before the court or the Registrar for deletion of the mark from the Trade Marks Register or for invalidation, on grounds of non-use, in cases where the mark has become generic/ non-distinctive as a result of the trade mark owner’s behaviour or in cases where the mark has become deceptive vis-à-vis the nature, quality or geographical origin of the goods/ services in relation to which it is registered, due to the use of the mark made by the trade mark owner.

    A design may be invalidated by a court decision on the basis of the following reasons: on substantive grounds (e.g. the design was not novel), in case where the design clashes with a prior design which has become known to the public after the filing of a priority application and that prior design is already protected with a filed Community application, a national application or an application filed in an EU Member State, the design owner is not an eligible owner as per the provisions of the relevant law, the design constitutes unauthorised use of a work which is protected under IP laws of Cyprus or of an EU Member State, the design constitutes inappropriate use of any elements set out in Article 6bis of the Paris Convention or of marks, emblems, armorial bearings other than those covered by Article 6B of the Paris Convention and which have a special importance in terms of public interest in Cyprus or in an EU Member State.

  30. Are there any other methods to remove or limit the effect of any of the intellectual property rights described in section A, for example, declaratory relief or licences of right?

    As aforementioned, in certain circumstances, compulsory licenses may be granted in respected of patented products.

    Moreover, the various grounds for invalidating or revoking or cancelling a mark or a design, are mentioned above.

  31. What remedies (both interim and final) are available for infringement of each of the intellectual property rights described in section A?

    As aforementioned, interim orders in the form of Norwich Pharmacal and Anton Piller orders, are available, along with injunctive relief in proceedings for patent, copyright, trade mark and patent infringement.

    In cases where patent, copyright, trade mark and design infringement are found, the court may issue an order prohibiting the infringer from repeating the offence and in case the offender flouts this order, an order (monetary or penal or a combination of both) may be imposed.

    Orders may be issued for the delivery up and destruction of infringing products, and further, an order may be made for damages or account of profits.

  32. What are the costs of enforcement proceedings and is any kind of costs recovery available for successful parties? Is there a procedural mechanism enabling or requiring security for costs?

    The costs in any court proceedings are calculated on the basis of a set of rules, which are dependent on the quantum of damages sought and the IP right in dispute.

    The general rule is that the loser bears the adjudicated costs. Nonetheless, the Court would take into consideration a number of factors when issuing an order on costs, such as the conduct and cost of proceedings, other legal fees, interests of the parties, etc. Accordingly, the Court may issue an order for each party to bear its own costs.

    An order for security for costs may be made by a court in favour of a defendant, at the defendant’s request, provided that the claimant is domiciled outside Cyprus and outside an EU Member State, and provided that the claimant has insufficient assets (especially immovable property) within Cyprus to satisfy any court order made against it. The timing of filing of an application for security for costs is important as the court may dismiss any such applications for reasons of delay.