Legislative Changes Affecting IP Rights Enforcement in Latvia
By Ingrida Karina-Berzina, Partner and Head of IP&IT Practice Group at COBALT
Posted: 31st October 2017 09:00
Over the past few years, IP litigants in Latvia have experienced a number of significant changes to how and where rights may be enforced. The overall trend is toward clarity in procedural matters and stronger courts and adjudicatory bodies, and an enhanced role for sworn attorneys in the courts. Latvia will soon join the Unified Patent Court Agreement, opening access to a new pan-European court for local right holders.
New court responsible for industrial property matters in Latvia
Following amendments to the Civil Procedure Law, since 1 January 2015 all industrial property matters must be initiated in the Riga City Vidzeme District Court. Previously, such matters were initiated in the Riga Regional Court, which in other types of matters served as an appellate court. As part of a broader court system restructuring, industrial property matters were reassigned.
The Riga City Vidzeme District Court is one of the busiest trial courts in the country, and three judges have been assigned as trial court judges in industrial property matters, where cases are decided by one judge. Copyright claims may be filed in any civil court according to the usual rules of jurisdiction. Since the new trial judges had no previous experience of industrial property matters, they have been undergoing training. Due to the low volume of industrial property related cases (approximately 30 cases instituted each year), we do not expect a dedicated IP court to be instituted in Latvia. The general trend in IP litigation, as in other types of civil litigation, is that nearly all decisions are appealed, and four-five years from filing a claim to receiving a cassation decision is not unusual.
Non-attorneys no longer permitted to represent at Supreme Court
In Latvia, non-attorneys (trademark, design and patent attorneys, or other persons with or without legal training) have broad rights to represent clients in court. The Civil Procedure Law has recently been changed to limit representation at the Supreme Court exclusively to sworn attorneys, and also to limit recovery of legal costs to those incurred by sworn attorneys. The change was initiated by the Ministry of Justice in an effort to speed up proceedings by mandating the use of sworn attorneys, all of whom have specialised training in civil procedure. In many cases, there is no obstacle for sworn attorneys to also become licensed IP attorneys or vice versa, and a number of practitioners hold dual qualification.
Deliberations at the Supreme Court are usually in written form only, therefore, provided that no additional explanations from the parties have been requested by the Supreme Court and that the relevant case does not have a special significance in interpreting the law, parties may still use non-attorneys to prepare filings that they sign themselves. There are proposals to extend of this limitation to the appellate or even the trial level, where proceedings are oral. Should these proposals come into effect, litigants would have the option of representing themselves or of instructing sworn attorneys.
Latvia to ratify the Unified Patent Court Agreement
In November 2016, the Act of Ratification was submitted to the Latvian Parliament, as a result of which the ratification of the Unified Patent Court Agreement (UPCA) is expected in early 2017. The UPCA will come into force once 13 European Union member states have ratified it, including the three countries with the largest numbers of patents. Of the latter, France has ratified and Germany has stated its intention to ratify. The third of these key countries, the United Kingdom, surprised onlookers in late November 2016 by announcing its intention to ratify the UPCA. This move puts the long-awaited “unitary patent” on track to come into effect by late 2017, offering patent holders the option of protecting their rights automatically in all the member states that belong to the Agreement. Latvia, together with Estonia and Lithuania, will join Sweden to create a Nordic-Baltic Regional Division of the Unified Patent Court, with jurisdiction over disputes concerning both unitary patents and “classical” European patents. Latvian sworn attorneys may automatically represent clients before the Unified Patent Court; patent attorneys who are not sworn attorneys must obtain special certification to do so.
New Industrial Property Procedures and Institutions Law
Following nearly a decade of deliberations, an all-new Industrial Property Procedures and Institutions Law (IPPIL) entered into force over the course of 2016. Three key changes affect right holders and their representatives:
New Board of Appeals. In July 2016, the first fully independent five-member Patent Office Board of Appeals (BoA) began operation in Latvia. The BoA examines oppositions and appeals against the decisions of the Latvian Patent Office. The new BoA provides the option of fast written proceedings wherein decisions are adopted within three months of receipt of the parties’ pleadings, representing a significant improvement over the old system of oral hearings on a 12-24 month time frame. The decisions of the BoA may be now appealed with the Riga City Vidzeme District Court, rather than to the Administrative Court system as before. This effectively ends the previous practice of bifurcation, as both validity and infringement matters are now handled by the civil court in matters that would typically be joined.
Formalisation of procedural rules.Since 1992, the Patent Office Board of Appeals has operated without a fully elucidated set of written procedural rules, but rather by reference to the rules of civil and administrative procedure. The new law details the procedural rules applicable for such matters as submission of evidence and effect of deadlines, leading to greater certainty for parties.
New patent attorney formalities.All licensed trademark, design and patent attorneys had to re-register with the Latvian Patent Office under the new law. Most importantly for their clients, such IP attorneys must now hold civil liability insurance (previously, this was optional for IP attorneys, though sworn attorneys always have had such a requirement). The law requires these attorneys to adhere to a code of ethics but does not, as initially planned, make membership in a professional body mandatory. Therefore, IP attorneys remain a self-supervising profession in Latvia.
INGRIDA KARINA-BERZINA / partner
Contact: +371 6720 1963 / email@example.com
Ingrida Karina-Berzina is Partner and Head of the IP & IT practice group of COBALT Latvia.
Ingrida is a licensed Latvian and European Trademark and Design Attorney, a Sworn Attorney (Latvia) and an Attorney at Law (Pennsylvania and New Jersey). She advises on trademarks, design rights, copyright, patents, telecoms, start-up issues, and IP strategy and commercialisation, with a focus on disputes and IP prosecution, and teaches law at the Riga Graduate School of Law and Stockholm School of Economics in Riga.
COBALT Latvia contacts:
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Tel. +371 6720 1800
Fax +371 6720 1801