Who shall prove the infringement and how?

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Who shall prove the infringement and how?

There is a general rule that the plaintiff needs to prove all facts that support his claim, whereas the defendant will have to prove all those facts that serve to defend his position. Accordingly, the plaintiff must prove that it is the rightful owner (or licensee) of a valid trademark. If the trademark is registered, a certificate issued by the Armenian Intellectual Property Agency (AIPA) will be sufficient for this purpose. The plaintiff asserting infringement or dilution will also have to prove all facts establishing that the alleged infringing acts took place and that the defendant participated in such infringing acts.

A mark is infringed by the use of an identical sign for identical goods or services, or of an identical or similar sign for identical or similar goods or services provided that the risk of confusion may arise on the part of the public, which may also consist in a risk of association. A mark which enjoys good reputation in Armenia is also infringed by the use of an identical or similar sign which permits any unfair advantage to be taken of, or is detrimental to, the distinctive character or reputation of the registered mark, irrespective of any likelihood of confusion or association (art. 12 of the Armenian Law on Trademarks).

In criminal cases, an investigator will be appointed to conduct investigations in order to establish infringement.

Any type of evidence (invoices, samples of the infringing products, catalogs, brochures) that is deemed to be appropriate may be brought forward, and it is up to the court to decide how much weight should be attached to a piece of evidence.

Armenian procedural law does not provide for full discovery, but in pending trademark infringement actions courts may generally order evidence disclosure measures upon request of a party, such as disclosure of documents and inspection of objects. Such orders are directed against either an adverse party or a third party, including government entities. In proceedings on the merits the courts should interpret a refusal by a procedural party to provide evidence, documents or information against that respective party.

The parties are entitled to see documents that are referred to in the pleadings, witness statements, etc. Furthermore, an adverse party may be interrogated before court upon request of either party, and any person may be ordered by the court, upon request of a party, to give testimony. Parties do not have to produce privileged documents such as those including legal advice from the parties’ lawyers.

In addition, it is possible to obtain seizure of infringing goods as a provisional remedy. Such goods may serve as proof in subsequent proceedings.

Summary proceedings are available, also prior to the filing of an action, in which endangered evidence may be secured or facts may be established.

Orders can be made against parties outside Armenia. These will then have to be dealt with by letters rogatory addressed to the court of the relevant jurisdiction in order to obtain the documents in question. Armenia became party to the Hague Evidence Convention in 2012.

An alleged infringer’s activities outside Armenia, and possible on-going or closed actions against him in other countries, may be important as supportive evidence to establish infringement or dilution in Armenia.

In criminal cases investigating officers enjoy extensive powers for obtaining evidence.

 

 

 

2014-01-11T10:23:52+04:00 January 11th, 2014|
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