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Copyright of Romanian Journal of Intellectual Property Law / Revista Română de Dreptul Proprietăţii Intelectuale is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Today, the intellectual property protection is no longer an absolute social and legal that justifies adoption of any measures necessary to protect it. Initially seen as the prerequisite for sustainable development, implementation of new technologies, and encouragement of international trade, the intellectual property, especially prior to ACTA (Anti-Counterfeiting Trade Agreement) international trial implementation, and also thereafter, was increasingly identified as a source of violation of fundamental rights and civil liberties, i.e. the right to protection of personal data, the right to privacy, freedom to send and receive information freedom of information, freedom to contract, and freedom to carry out economic activities (freedom of commerce). As far as international trade transactions have often a component of intellectual property that requires to be protected, it is necessary to identify the landmarks, the rules establishing de facto limits in order to protect the intellectual property without risk of infringement of fundamental rights and civil liberties of other persons, in particular users or potential users of goods and services incorporating intellectual property. The best guidelines in this regard may be provided by the CJEU (Court of Justice of the European Union) case-law both due to its reasoning underlying the decision of the Parliament to reject ACTA ratification and the fact that the case-law of this Court, especially the most recent one, is highly complex and nuanced, not denying in any way the importance of intellectual property, and identifying certain cases where their primacy persist and whose analysis leads to laying down some general rules in the field.

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The study analyzes several proposals to ensure the settlement with celerity of the civil trial. The authors consider that these are the following: providing the necessary staff; generalization of the process of digitalization of justice and the transition to the „online civil trial"; transferring the competence to settle non-contentious application for certain areas to other authorities; extension of the special simplified proceedings carried on exclusively in writing or even without summoning the parties; pronouncing the judgments in civil matters only after they are motivated; abandoning the verification of the material competence in the stage of regularization; proposal to repeal the procedure for regularization of the application for summons. A very important proposal is the one that suggests that the pronouncing of judgments in civil matters should be made only after they are motivated. The authors consider that it is necessary for the drawing up to be made prior to the pronouncement of the judgment, because the considerations must be identified and formulated before the pronouncement, because they must necessarily be the basis for transposing the law by the act of justice. Another important aspect proposed by the authors is the complete repeal of the regularization procedure in its current form and the establishment of the first trial term in the urgent cases after a period of two weeks from the registration of the application and 30 days later in the case of the other applications, following that the possible measures of regularization be ordered by the judge at the first trial term with the summoning procedure being legally fulfilled, following that, practically, in a period of maximum two months, it will be possible to proceed to the investigation of the trial. [ABSTRACT FROM AUTHOR]

In 2012 became reality James Boyle’s desire exposed in his essay from 1997 regarding a politics of intellectual property concerning the great deal of attention that must be paid to the Intellectual Property. At that time Boyle was disappointed by the lack of attention from lawyers, scholars, legal academics and the media for the Clinton administration’s proposal for copyright on the Net, a document that provided the blueprint of domestic and international regulatory efforts to expand intellectual property rights. Certainly this was not the case with ACTA where the public media forced by the private citizen’s protests tried to weight both the benefits and the costs of the new protection standards brought by the new international convention. After those moments Intellectual Property regulations are no more an esoteric and arcane field, something that is only interesting and comprehensible to the practitioners in the field, but a matter of public interests like the environment which arouse the attention of all the persons. In this way we all become aware that intellectual property radiates beyond the legal frame and interferes with several aspects of our lives, including our free time and the tourism consequently.

Copyright of Romanian Journal of Intellectual Property Law / Revista Română de Dreptul Proprietăţii Intelectuale is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic. [ABSTRACT FROM AUTHOR]

Copyright of Romanian Review of Private Law / Revista Română de Drept Privat is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article, a continuation of the study with the same title published in the previous issue of „Dreptul" magazine, presents in detail the minority point of view expressed within the civil procedure collective of the Faculty of Law of the West University from Timișoara, according to which the object of the incidental or provoked appeal/review may be the grounds or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they have been challenged or not by means of the main appeal/review. In the same sense, the High Court of Cassation and Justice - the Panel for the settlement of the appeal in the interest of law also has ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the first instance or of the court of appeal that was not challenged with main appeal or review, keeping in mind that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code do not condition the formulation of the incidental appeal/review on the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to quash the challenged judgment in any aspect that is of interest to the respondent who declares an incidental or provoked appeal/review. The main argument for adopting this interpretation is represented by the premise of regulating the incidental appeal/review, but also the purpose of the regulation from Articles 472, 473 and Article 491 of the Civil Procedure Code. The accessory nature of the incidental appeal or review, respectively the provoked one, does not represent an argument to justify the interpretation that the incidental appeal/review can refer only to that part of the judgment that has already been challenged by the main appeal/review, being impossible for the accessoriality, not expressly proclaimed by the legislator, to be extended beyond the cases restrictively provided in Article 472 (2) of the Civil Procedure Code, because it would bring prejudice to the purpose of the incidental appeal or review, expressly mentioned in Article 471 (1) of the Civil Procedure Code, that of aiming to change the challenged judgment, denying the relation of legal adversity between the person who has formulated the main appeal or review and the respondent. In the opinion of the author of the present study, the incidental appeal or review, respectively the provoked one, should not exclusively concern the provisions of the challenged judgment criticized by the main appeal or review; in the unitary interpretation and application of Article 472, Article 473 and Article 491 of the Civil Procedure Code, the object of the incidental appeal or review, respectively the provoked one, may concern the considerations or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they were challenged or not by the main appeal or review. [ABSTRACT FROM AUTHOR]

The unpredictability involves the intervention of the judge in a contractual legal relationship. Intellectual property can be considered a „laboratory" in which the intervention of the judge in the agreement of the parties has always been allowed. Without any connection with the unpredictability, in patent law there are legal mechanisms that allow the court to intervene to complete the contract regarding the quantum of the price in order to encourage the exploitation of the invention. In this hypothesis, the parties agree to contract, they do so, setting even the object of the contract, less the sale price. In other cases, the parties are obliged to contract by law, the court being required to intervene in the contractual mechanism established by law to determine the price. In Romania it cannot be argued that under the influence of the previous Civil Code the legislator has ruled on the non-application de plano of the unpredictability and that he would have been in favour of its application in certain special laws, such as the one from the field of intellectual property, because the reason for the judge's intervention in the agreement of the parties is to favour the exploitation of intellectual creations, encouraging creativity. In the new Civil Code the conditions of the unpredictability are: 1. the existence of an excessive onerosity caused by an exceptional change (out of the ordinary, and not an ordinary one, simple or routine) and unforeseen (unpredictable), including as extension, of the circumstances existing at the conclusion of the contract. Excessive onerosity represents a contractual imbalance in relation to the initial contractual balance, which must exist as long as neither of the parties' benefits can have a significantly higher value than the other, in the light of the regulation of the injury in the new Civil Code. The contractual imbalance, which must result in both excessive onerosity for the debtor, and a correlative gain for the creditor, requires the contract to be adapted by the Romanian judge by adjusting a contractual obligation to the correlative law of the co-contractor, and not the revision of the contract, to which only the French judge can proceed, simply changing the agreement of the parties. 2. change of the circumstances capable of leading to the adaptation of the contract to intervene after the conclusion of the contract. The condition, which has the legal value of a premise, is also fulfilled when in the content of the (apparently) immediate performance contracts enter continuous obligations capable of leading to a contractual imbalance, such as the obligation of non-competition in the case of a patent assignment. 3. the parties have not assumed, expressly or implicitly, the risk of changing the circumstances existing at the conclusion of the contract. Any assumption may concern certain individually determined risks, but not all risks, the debtor not being able to give up completely and in advance the possibility of invoking the unpredictability. In patent law, the emergence, development of new technologies or the existence of factual circumstances that „amplify" the use of the invention can lead to the adaptation of the contract or its termination in order to increase the remuneration of the one who has assigned his rights over the invention, falling under the hypothesis of unforeseen circumstances. On the other hand, the non-exploitation of the invention is due to the inability of the person who acquires the rights over the invention, not in the presence of an objective circumstance, but of a subjective one. If this inability has existed since the beginning of the contract, the person who assigns the rights to the invention can invoke the dolus, and if it subsequently occurs, he can request the termination of the contract on grounds of the resolution. At the same time, a fixed remuneration increases the probability of successfully invoking unpredictability in the field of patents, especially in the relationships between the employed inventor and the employer. [ABSTRACT FROM AUTHOR]

Copyright of Bucharest University Annals - Law Series is the property of CH Beck Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The defense of intellectual property rights is done through special (administrative) action, but also through substantive action on the exploitation and defense of intellectual creations, and until it is settled through interim actions. All decisions issued by OSIM or ISTIS in connection with the granting, refusal or cancellation of the legal protection of industrial creations and distinctive signs, in so far as they are challenged before the court, give rise to a special (administrative) procedures, in which decisions of industrial property protection specialized public authorities are censored on their legality. The writings of the title of legal protection, even if they have a constitutive effect, do not per se ensure the exploitation, the protection of intellectual property rights and even the recognition of intellectual property rights in all cases. The registration of inventions, designs, models, topographies, trademarks, geographical indications, new varieties of plants, utility models at OSIM and ISTIS, the completion of the administrative procedure ending with the issuance of a patent or certificate of registration has the main effect of securing the civil circuit In the field of industrial property. The desirability of such a system of advertising of rights to industrial creations is to know at all times what is protected and what is not protected, what are the latest discoveries of human genius and who is the person who must consent to the use in the civil circuit of these industrial creations, being the owner of the rights granted to it. Recognition, exploitation and protection of intellectual property rights, including those relating to industrial property, are the sole object of intellectual property substantive actions. In the substantive proceedings, it is essentially examined to what extent the substantive (general and special) conditions for the establishment of a legal protection title in favor of a person are fulfilled or not. Within the special procedures, conflicts of rights are examined as a result of the issue (or refusal) of the writ of the legal protection title. Whenever the special procedure court comes to analyze the substantive conditions of the legal protection title (novelty, industrial applicability, uniformity, distinctiveness, stability, etc.), it does so either incidentally, analyzing the legality of a document in the administrative procedure (documentation report, admission or opposition rejection report, etc.) containing information and conclusions about the fulfillment of such a condition or it does so in the context of a substantive action that is incidental to a special administrative action. As regards the legal nature of the counterfeit action or of any civil action in the matter of intellectual property, it must be determined by the legal nature of the rights recognized in the field of intellectual property. If we accept that these rights are real, the substantive action is also real and has a real character, otherwise it is a personal action or, at least, a sui generis action. Economic rights in the field of intellectual property represent personal rights correlative to a propter rem obligation of the owner of the material (or electronic) support incoporating the intellectual creation consisting in not to reproduce the intellectual creation. We can speak of a substantive (civil) action specific to the intellectual property field only if it examines the fulfillment of the (general and special) conditions of intellectual creation protection. The existence and extent of the legal protection of intellectual creation is the object of substantive action specific to intellectual property and the payment of compensation only exceptionally, where such compensation is the price of the use or exclusive use granted to the rightholder in the case of a compulsory license example. As long as the object of procedural legal relations forms the intellectual property rights, the existence and scope of the legal protection title in the field of intellectual property can be subject to the court's analysis, through substantive action specific to intellectual property field. In other words, as long as there is a reference to an intellectual property right, at any time it can be argued that that right either does not exist, from a legal point of view, intellectual creation being part of the public domain or belonging to another subject of law. Such an analysis-of the existence of legal protection-can also be made in the field of industrial property and the existence, scope and ownership of industrial property rights can be challenged by the request for annulment of the patent or certificate of registration. This request incorporates, in addition to a special administrative action that leads to the dissolution of the patent or registration certificate, a substantive civil action which requires verification of the fulfillment of the conditions for granting legal protection, which is why the request for annulment can be formulated (most times) during the entire validity period of the patent or registration certificate issued by OSIM and ISTIS. [ABSTRACT FROM AUTHOR]

Copyright of Romanian Review of Private Law / Revista Română de Drept Privat is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This study is an in-depth study of a previous research on moral rights published in the research in the Romanian Intellectual Property Law Magazine from the perspective of their relationship with economic rights. Unlike other non-patrimonial rights, in the case of intellectual property moral rights, we have an object that coincides with the object of intellectual property economic rights that consists in intellectual creation. Moral rights are radiating far beyond the personal non-property aspects of the author's, having a direct impact on the commercial circuit of the intellectual creations. On the other hand, inalienability, which is specific to them as non-patrimonial personal rights, does not imply the prohibition of the transfer of moral rights by means of inheritance, since even if the non-patrimonial rights cease at the death of the holder of these rights, this solution is rejected in the field of intellectual property with the motivation that the personality of the author, as reflected in intellectual creation, must be protected after his death. The recognition of the author's moral rights emphasizes the importance of the author in all legal relationships that are born in connection with the protected intellectual work. Any obligation assumed by the author or his co-contractor may be restricted or extended by invoking the fact that the author's moral rights would be violated or would not be entirely protected. The intersection of the moral and the patrimonial aspects in the intellectual relations with the object of intellectual creation gives rise to a particular type of single moral-patrimonial legal obligation, which does not resemble any other category of legal obligations. At the same time, any agreement concluded by a person who has acquired the economic patrimonial rights over intellectual creation with any other subject of law can not deny or diminish the moral rights of the author or the holder of the protected moral right, being void. Granting material damages to cover moral damages on the basis of invoking contractual civil liability in the field of intellectual property is recognized by judicial practice as opposed to the traditional rule that moral damages can not be claimed in the event of non-compliance with contractual obligations. [ABSTRACT FROM AUTHOR]

This article reffers to the specials provisions of the industrial property Romanian regulations regarding the chalange in to the court of the legal protection granted through the patent and the registration certificate issued by the Romanian National Industrial Property Authorities. All this specials provisions are representing a special judicial procedure instituted to control the regularity of preliminary administrative mentionned above. We must not think that the recognition and the protection of industrial property rights is asurred through this special judicial procedures. The recognition, the exploatation and the protection of the intellectual property rights, including industrial property ones, are the object of the intellectual property substantive judicial procedures. During these last procedures the judge annalyzes the substantive (general and specials) conditions for recognizing a form of legal protection for the intelectual creations. During the special judicial procedures the judge annalyzes the conflicts of rights caused by the release or refusal of release of the document attesting a form of legal protection [ABSTRACT FROM AUTHOR]

It is dangerous to narrowly define plagiarism through the prism of special legislation regarding the good conduct in scientific research, technological development and innovation (Law 206/2004) and to disregard the law (general) of copyright (Law 8/1996), because at least, it might conclude (incorrectly) that we do not have plagiarism prior to the entry into force of Law 206/2004. In reality plagiarism represent the infringement of a moral (and imprescriptible) right to authorship of the scientific work protected by Law 8/1996 (art. 10 letter b), which is why this scientific crime defined in special legislation should be reported to the general legislation on copyright. The ban to takeover ideas from scientific work regulated under Law 206/2004 does not conflict with the exlcusion of ideas from copyright protection, according to art. 9 letter a) of Law 8/1996, as long as the special law (art. 4 para. (1) letter d) of Law 206/2004) protects ideas as components of a scientific work, which (along with expressions, demonstrations data, hypotheses, theories, results or methods used) differentiates each scientific works. [ABSTRACT FROM AUTHOR]

This study goes over the same subject matter as a previous paper published by the same authors in the Commercial Law Review, due to the current poor regulation in Romania of the Franchise Agreement and after the new Civil Code came into effect. Even after Romanian private law settled down after the new regulations of the new Civil Code and the laws modified when it came into effect, agreement obligations of the franchisor and the beneficiary, we believe that this matter is poorly regulated by G. O. no. 52/1997 republished. The franchisor has the following obligations: 1) The requirement to own and operate a business within a certain period of time prior to the launch of the franchise network. 2) The requirement to be the owner of the intellectual/industrial property rights. 3) The requirement to give initial training to the beneficiaries and ongoing technical and commercial assistance, throughout the duration of the agreement. The beneficiary has the following obligations: 1) The requirement to develop the franchise network and to maintain its common identity and reputation. 2) The requirement to provide any information to the franchisor to facilitate knowledge and analysis of actual performance and financial situation in order to ensure effective management in connection with the franchise. 3) The requirement to not disclose to third parties the know-how provided by the franchisor, for the duration of the franchise, and subsequently. [ABSTRACT FROM AUTHOR]

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The study follows up on the analysis dedicated to identifying certain general conditions of legal protection for all categories of intellectual creations, regardless of the scope of copyright or industrial property. Initially, novelty was identified as a general condition of legal protection of intellectual creations, based on the approximation of the concepts of originality of works, novelty of utility creations and availability of distinctive signs, emphasizing that one may protect intellectual creations that are unique and objectively different from the current state of knowledge and culture. [ABSTRACT FROM AUTHOR]

Copyright of Romanian Review of Private Law / Revista Română de Drept Privat is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

According to the New Code of Civil Procedure, the first appeal represents the general common procedure for attacking a first instance judgment. The second appeal represent an extraordinary procedure for attacking a first appeal judgment but also, in some particular cases a first instance judgment. Considering the fact that according to the New Code of Civil Procedure the first appeal is an appeal on points of fact and law and the second appeal represents in all the cases an appeal on points of law only the present study represents an exhaustive enumeration of all the judgments that can be attacked by a first appeal, more precisely by an appeal on points of facts and law. Identifying these judgments represents the opportunity for an exhaustive enumeration of the first instance judgments that can be attacked only by a second appeal, meaning an appeal on points of law only. This last category is at the present only exemplified by the literature, but needs to be exhaustively revealed considering that in these cases the procedure before the first instance represents the unique opportunity to invoke at the same time factual and legal arguments. More precisely in this study the object of the first appealed, meaning the judgments that can be attacked by an appeal on points of fact and law, will be revealed considering the judgments that can be attacked by this procedure according to the New Code of Civil Procedure, the administrative rulings that can be attacked by a first appeal according to the special statutes, the judgments that cannot be attacked by a first appeal according to the New Code of Civil Procedure, the judgments that cannot be attacked by a first appeal according to the special statutes. [ABSTRACT FROM AUTHOR]

In civil law, the requirements of a fair trial guarantee exclusive access to justice, and not a double degree of jurisdiction as in criminal law. These guarantees, which form a widely accepted standard in the field of civil judicial proceedings, also confirmed by the European Court of Human Rights, are reinforced by the recent jurisprudence of the Constitutional Court of Romania which states the compulsoriness of the double degree of jurisdiction existence in this area as well, relative to the provisions of Romanian Constitution. These decisions were pronounced when considering the compliance with the legal provisions removing the means of appeal in civil litigations considered less important by the legislator. Qualifying these legislative changes as unconstitutional, the Constitutional Court of Romania changes its previous jurisprudence and interprets constitutional provisions as imposing a higher standard than international provisions in terms of fair trial guarantees in civil law, especially if considering the arguments justifying its decision. [ABSTRACT FROM AUTHOR]