The aim of this master’s thesis is to present the institute of preservation of evidence in the infringement of industrial property rights, as stipulated in Article 124 of the Industrial Property Act. Its current content originates in the implementation of Article 7 of Directive 2004/48/ec on the enforcement of intellectual property rights, which stems from Article 50 of TRIPS agreement.
In this thesis I will separately research the conditions pertaining to individual source of law that are needed for the preservation of evidence order and I will point to the derogations in and discrepancies between the Slovenian legislation and European Community Law. I will take a critical position to the standard of proof of “reasonably available evidence” and will respond to the issue of how exact should the description of evidence proposed for preservation be.
On one hand, I will point out the requirements of the international, European and national laws that determine the relevance of urgent, immediate, effective and efficient proceeding, while on the other hand I will highlight the law voidness of the discussed provisions in the sense of undefined deadlines and general duration of the process of evidence preservation. I will also point out to the inequality among creditors in the context of the possibility of ex parte proceedings, as some cases are resolved immediately and thus the surprise effect is possible, while others take months.
I will delineate the measures for in the preservation of evidence from temporary orders and define it as an institute standing between the enforcement proceeding and legal procedure, while discussing whether the transfer of institutes and principles of two different proceedings, legal and enforcement, onto the procedure deciding on the preservation of evidence in infringement of the industrial property rights makes sense or not.
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