Answers of the Egyptian National Group:

1.

Is there international exhaustion of ( i ) Patents ( ii ) Trade Marks; and ( iii ) other Industrial Property rights? That is, can an Industrial Property right owner use Industrial Property rights against parallel imports from another country, when the imported products have been put on the market in that country by the Industrial Property right owner or with his consent?

The present Egyptian Patent, Trade Mark and Industrial Design Laws in force do not include exhaustion of rights. Based on the patented products or goods bearing registered Trade Marks, the Industrial Property right owner can use Industrial Property rights against parallel imports from another country when the imported products have been put on the market in that country by the Industrial Property right owner or with his consent.

2(a)

Can contractual restrictions imposed by an Industrial Property right owner be used to limit the effect of international exhaustion? (b) what is the effect of breach of contractual restriction by a purchaser-does exhaustion occur?

It is naturally expected that contractual restrictions imposed by an Industrial Property right owner can be used to limit the effect of International and territorial exhaustion as well.

(Two) As indicated under (1) above current Egyptian legislations do not include IPR exhaustion. Consequently, the breach of contractual restriction by a purchaser may result in the termination of the contract. Reference is made to Article No.75 (G) of the Commercial Law No.17 of 1999 which stipulates: "sale of the production, whether directly or through an agent, shall be restricted to the supplier or those appointed by him".

3(a)

If contractual restrictions can be used to limit importation, does it matter whether they are express or implied?

(b)

If contractual limitations are express, are there any particular marking requirements?

If protected products are marked to indicate some marketing restriction, what are the consequences of removal or loss of any marking?

In order to limit importation by use of contractual restrictions, it is deemed mandatory that they must be express and not implied.

Associated with the express contractual limitations there should be particular marking requirements, such as the indication on the product, the container or the label thereof that it is made under license. Such indication should appear in the mother language which is Arabic, in our case.

Removal or loss of any marking indicating source marketing restriction in protected products renders infringer liable to prosecution and penalty.

4

Does international exhaustion of industrial property rights apply where a product has been put on the market under a compulsory license ( if applicable)?

Compulsory licensing applies only for Patents which have not been used for 3 years after grant.

5

Is "consent" which gives rise to exhaustion limited to specific arrangements ( for example a relationship with a subsidiary or affiliated company, or an agreement with a licensee), or a question of fact in each case?

Although we do not have cases or grounds to rely on in this regard, it is the opinion of the Egyptian Group of AIPPI that the "consent" which gives rise to exhaustion limited to specific arrangements should be a question of fact in each case, though specific arrangements such as a relationship with a subsidiary company or an agreement with a licensee may be mandatory.

6

Can an IPR owner object to parallel importation where (a ) goods or (b) their packaging have been modified?

An IPR owner can object to parallel importation where goods or their packaging have been modified, as such would result in the damage of the rights conferred by the respective laws. Applicable in this instant is the Egyptian Trade Mark Act No.57 of 1939, section 5, Para ( J) which stipulates :" marks likely to deceive the public or containing a false indication as to the origin or quality of the goods on which the mark is being used, or marks which contain the name of a fictitious firm, or which are imitated of counterfeit, may not be registered as Trade Marks or component parts of such marks"

As well as stating the laws in their respective countries, the groups are also invited to (a) make any proposals for changes: and (b) offer any observations of interest on the topics raised above.

The project of the new Egyptian IPR law is envisaged to include provisions relating to the exhaustion of Industrial Property Rights.

The Egyptian national group of AIPPI believes that the Commercial Law No.17 of 1999 should be revised to free the Licensor from unnecessary restricting conditions, and to forbid the licensee to annul any of the License contract terms before the termination of the License or before obtaining the approval of the Licensor.

Although the Egyptian national group of AIPPI expressed its reservation with regard to the inclusion in the new IPR law of any clauses relating to the international exhaustion of IPR rights, its opinion has been overruled by the drafting committee of the Law.