The Intellectual Property Review: Greece
Forms of intellectual property protection
In Greece, intellectual property legislation comprises (i) copyright and related rights, and (ii) industrial property.
Copyright and related rights are protected under Law 2121/1993 'On Copyright, Related Rights and Cultural Matters' (the Greek Copyright Law). The Greek Copyright Law is to a large extent influenced by the French legal doctrine of droit d'auteur and protects both the moral and economic rights of the author as two independent bundles of rights.
Moral rights relate to the personal connection of the author with his or her work and are the rights of divulgation, paternity, integrity, access and withdrawal.
Economic rights are generally associated with the commercial exploitation of a certain work of authorship and are the rights of recordal, reproduction, translation, adaptation, distribution, rental and public lending, public performance, broadcasting, presentation of the work to the public and import of copies.
Under the Greek Copyright Law, authors are generally entitled to assign (in effect transfer) or license their economic rights with respect to a certain work of authorship. Moral rights cannot, in principle, be waived or transferred, but they can be inherited.
Basic examples of protected works are music compositions, theatrical plays, artworks, architectural works, photographs, works of applied arts, illustrations and audio-visual works, as well as computer programs and databases.
Related rights are those deriving from or associated with performers, producers of phonograms and audio-visual works, broadcasting organisations and publishers of printed matter. The protection regime of the related rights is based on the concept of authorisation, which is the exclusive and absolute right of rights holders to allow or prohibit certain acts specified in the law in a restrictive manner. However, in certain circumstances, related rights may only constitute a legal obligation for payment of an equitable remuneration to the rights holder, in the sense that no authorisation needs to be sought.
The recently enacted Law 4481/2017, which transposed EU Directive 2014/26 'On the collective management of copyright and related rights and multi‐territorial licensing in musical works for online use in the internal market', sets out the principles of collective management of copyright and related rights in Greece.
Industrial property matters in Greece are primarily governed by Laws 4679/2020, 1733/1987, 259/1997 and 146/1914, which set out the legal prerequisites and protection eligibility criteria for the following registrable and non-registrable items:
- patents and utility models;
- industrial designs; and
- distinguishing elements such as company name, distinctive title, trade name and the external appearance or look and feel of a product, including its marks or other indicia (the 'product get-up'), which are mainly protected under unfair competition law.
Greece has ratified the major international intellectual property conventions, including the Berne Convention, the Rome Convention, the TRIPS Agreement, the WIPO Copyright Treaty, the WIPO Performances & Phonograms Treaty and the World IP Geneva Convention.
i Copyright and related rights
In Greece, a work of authorship is protected by copyright upon its creation, without the need for a filing or other registration formality. Despite the lack of registration or filing requirements, the Hellenic Copyright Organisation (HCO) introduced a 'timestamp' digital service (available at www.timestamp.gr) in 2019, which enables authors to certify the date of creation of their work. The copyrighted work is recorded in an online platform operated by the HCO against payment of a symbolic monetary amount, which depends on the size of the file uploaded.
The recently enacted Law 4761/2020 amended Law 4481/2017 'On collective management of copyright and related rights, multi-territorial licensing in musical works for online use in the internal market' and introduced provisions for the enhanced protection of copyright and related rights over the internet. By this amendment, the scope of Law 4481/2017 is extended, and provisions relating to copyright collection societies and independent copyright management entities established abroad and interested in operating in Greece are introduced. Article 66E of the Greek Copyright Law was also amended to expand the right to initiate an administrative 'notice-and-takedown' procedure also for unlicensed online transmission of events that are covered by national or international TV broadcasting, if the online transmission takes place simultaneously with the event.
Following the revocation in May 2018 of the operating permit of AEPI, the major collecting management organisation for musical works in Greece, an ongoing dispute has opened between existing and newly established organisations. Currently, AFTODIAHIRISI and EDEM are the major players in this industry. A decision of the plenary session of the Council of the State is currently expected to judge on the legality of the operating permit of EDEM.
Law 4679/2020 was recently enacted and transposed EU Directive 2015/24362 in Greek law. It repealed the previously applicable Law 4072/2012 on trademark protection and introduced various changes, including:
- the limitation of the scope of certain trademark rights for the purpose of safeguarding and enhancing competition;
- new competences of civil courts, which are now also competent to assess the validity of a trademark (previously awarded to administrative courts);
- the acquiescence limitation (now possible also in trademark invalidity actions); and
- amendments in official fees.
iii Hellenic Industrial Property Academy
The recently enacted Law 4512/2018 and the Presidential Decree 31/2019 introduced the establishment of the Hellenic Industrial Property Academy, which aims at developing a national system of education, training and accreditation for individuals wishing to earn the title of certified patent attorney.
iv Trade secrets
Law 4605/2019 transposed in Greek law EU Directive 2016/943 'On the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure'.
i Protection of copyright
The Greek Copyright Law protects works of authorship associated with any original literary and artistic or scientific intellectual creation, expressed in any form. There is no specific definition for originality in the Greek Copyright Law. However, legal literature supports that the originality of each work is understood as deriving from the personal contribution of the author, and as a result possesses a certain degree of individuality that distinguishes it from works of intellect of everyday life.
In the case of multiple authors, the Greek Copyright Law distinguishes between works of joint authorship, collective and composite works. The term 'work of joint authorship' designates any work that is the result of the direct collaboration of two or more authors. The term 'collective work' designates any work created through the independent contribution of several authors acting under the intellectual direction and coordination of one person, and the term 'composite work' refers to a work that is composed of parts created separately.
On the duration of copyright, the general rule is that protection lasts for the life of the author and continues thereafter for 70 more years. Specific duration rules may apply for certain types of works, such as works of joint authorship, music compositions, anonymous or pseudonymous works and audio-visual works.
As regards copyright exploitation arrangements, the Greek Copyright Law requires an agreement in writing and generally prohibits an assignment or licensing for the totality of the author's future works, or undertakings (to the benefit of the assignee or licensee) that intend to capture exploitation means that did not exist, or were unknown, at the time the agreement was made.3
The Greek Copyright Law recognises a resale right (also known as droit de suite), by which an author may claim royalties on his or her works resold by art market professionals.
The general rule for works of authorship created by employees is that the initial copyright holder is the employee. Unless an agreement to the contrary exists, the author's economic rights, which are necessary for fulfilling the purpose of the employment contract, are automatically (ipso jure) transferred to the employer.
Special types of copyright works (software and databases)
The Greek Copyright Law provides ad hoc protection to software, as this is considered a literary work.4 The ideas and principles on which the elements of a certain piece of software are based are not protected. Software is considered an original work of authorship if it constitutes a personal creation of its author. In cases where the software is created by an employee in the course of execution of an employment contract or following the instructions of their employer, economic rights in the software are automatically transferred to the employer, unless otherwise agreed in writing.
Databases, which owing to the selection and arrangement of their contents constitute an author's intellectual creation, are also protected under the Greek Copyright Law and are considered as sui generis rights.
ii Protection of industrial property
In Greece, trademarks are protected by Law 4679/2020 (the Greek Trademark Law). The Greek Trademark Law recognises national, European or international trademarks as valid in the Greek territory.
A national trademark registered with the Greek Trademark Registry may consist of a sign, particularly words that may include a person's name; designs, letters, numbers, colours, shape or packaging of the product; or sounds, provided that the sign can distinguish the products or services of an undertaking against the products or services of another undertaking, and can be represented in the Trademark Registry in a manner that enables competent authorities and the public to clearly and precisely identify the type of protection afforded to its proprietor.
The right to a trademark is acquired by registration, following an application filed with the Trademark Registry, which is part of the Ministry of Development and Investments, and the payment of filing fees of €100 for one class applied for in the electronic application5 and €20 for each additional class.
The examination and approval of a trademark application normally takes between two and four months, following which a period of three months is allowed by law for the filing of opposition by third parties.
Provided that no oppositions are filed, the trademark is registered with the Trademark Registry. Trademark registration grants to its proprietor the right to use it, to affix it to the respective goods and their packaging, to characterise the provided services, to affix it to postal paper, invoices, price lists and advertisements and to use it in electronic, audio-visual or social media. Greece follows the Nice Agreement (as amended and in force) on classification for goods and services, which groups products into 45 classes (classes 1–34 include goods and classes 35–45 include services).6 Collective and certification marks are explicitly protected under the Greek Trademark Law.
An important change implemented by the recently enacted Greek Trademark Law, which aims at simplifying and expediting the trademark filing process, is that from 14 January 2019 onwards, the Trademark Registry is no longer entitled to reject trademark applications (ex officio rejection) in cases of the prior existence of resembling trademarks. Instead, the trademark examiner notifies the owners of prior, potentially affected trademarks about the application under examination, so that they may file an opposition. The trademark examiner may, however, reject a trademark application on absolute grounds, such as for lack of distinctive character, descriptiveness, public order and other grounds relating to fundamental rules set out in the Greek Trademark Law.
Inventions are protected by Greek Law No. 1733/1987 'On technology transfer, inventions and technological innovation' (the Greek Patent Law). A patent is granted by means of an administrative procedure, which is carried out before the Hellenic Industrial Property Organisation (OBI). The OBI grants an absolute (unrestricted and unrestrained) and exclusive right for holding and exploiting a certain patent to the inventor.
The legal prerequisites for granting patent protection are:
- inventive step; and
- susceptibility to industrial application.
An invention can relate to a product or a production method, in the sense that it must provide a solution to a technical problem. This solution must relate either to the production or improvement of a product, or to the procedure for its production. An invention may also relate to an industrial application.
Surgical and therapeutical methods for the human or animal body, plant varieties, animal species and their biological production methods (except for microbiological methods and products derived by use of these methods) are not patentable in Greece.
The process for filing a patent starts with the filing of an application with the OBI including:
- the name (or trade name if a legal entity), nationality, residence or seat, and address of the applicant;
- a description of the invention and identification of one or more matters for which patent protection is sought (claims); and
- a request for the granting of a patent.
Following the filing of a patent application, the OBI conducts an assessment on the fulfilment of formalities and only examines if any substantial omissions exist, without conducting a prior-art search, meaning a search of the existing body of knowledge in the respective technical field.
The applicant must submit any missing drawings or other supporting documentation and must correct any errors in the documents within four months of the filing date. Normally, unless the application is rejected, the OBI grants a patent certificate in 12 to 15 months from a filing.
The duration of a patent is 20 years following the date of the filing of the respective application. Third parties with a legal interest are entitled to challenge the validity of a patent before the court.
Patent applications consist of a filing fee of €50, a patent granting fee of €150 and an annual fee of €20 payable after the third year onwards. The annual fee increases to €600 per year for the 15th year of protection onwards and to €1,100 for the 20th year, which is the year of expiry of the patent.
Applicants eligible for a patent can be the inventor or the legal beneficiary of the invention, such as the employer in case of inventions devised by employees.
The Greek Patent Law distinguishes between 'service inventions' and 'dependent inventions' created by employees. A service invention normally derives from the execution and in the context of a contract for development of inventive activity entered into between the employer and employee. A dependent invention is a non-service invention that is created by an employee during his or her employment, by using the employer's equipment, technical or other means, or information.
As a general rule, an employee's invention becomes the property of the employee, unless it qualifies as a service invention and becomes the property of the employer, or a dependent invention, in which case it becomes the joint property of the employee by 60 per cent and of the employer by 40 per cent. In the case of service inventions, an employee is entitled to claim equitable remuneration (in addition to the salary earned) if the invention is significantly beneficial for the employer.
Utility model certificate
A utility certificate is granted by the OBI, with a view to protecting a utility model. This particular certificate awards an intermediate stage of protection between a patent and a design. A utility certificate is issued for any three-dimensional objects with a defined shape and form, such as a tool, an instrument, a device, utensil or accessory, qualifying as new, industrially applicable and capable of providing a solution to a technical problem.
According to settled case law, utility models should be new creations (i.e., beyond state of the art) of the human mind, included in a tangible movable object, being capable of giving a solution to a technical problem and proposed as novel and industrially applicable, in the same manner as inventions. In a utility model, the inventive step is not required to be of the same level as in the case of an invention, for which a patent is granted. In this respect, inventions with a minimum or no inventive step that do not qualify as patents may qualify for a utility certificate.
The validity period of a utility certificate is seven years from filing. If the application for a utility model meets minimum requirements, the OBI issues a utility certificate within six months of the date of the application. The OBI does not examine the fulfilment of the legal requirements of novelty and industrial implementation, which are the responsibility of the applicant. The application fee is €50, and a fee of €100 is payable for the award of the certificate.
Presidential Decree 259/19977 applies to design applications, whether national or international, claiming protection in Greece (the Greek Industrial Design Law).
The legal prerequisites for national protection of industrial designs are that a design should be 'new' and must have an 'individual character'. In this respect, a design qualifies as new if, by the time of the filing, no identical design has been made available to the public. Identical designs are considered those that, if compared, have only insignificant diverse characteristics. A design qualifies as having an individual character if the global impression it gives to an informed user differs from the impression given to this user by another design made available to the public before the date of the filing.
Protection of industrial designs relates to the outer appearance of a product. Features of the appearance of a product that solely relate to its technical function are not design-protected.
The filing for an industrial design is made before the OBI. The application must contain full contact details of the applicant (as in a patent), a description of the object or objects to which the design is intended to be incorporated, a graphic or photographic representation of the design and an appointment of a service process agent accompanied by a declaration of submission to the jurisdiction of the Greek courts if the applicant does not reside in Greece. This is also necessary for patents and utility models.
A registered design is valid for five years from filing, renewable for consecutive five-year terms, up to a maximum of 25 years. According to the Greek Design Law, a registered design can additionally qualify for protection under the Greek Copyright Law if the legal prerequisites of this law are also fulfilled.
Within four to six months of the application, the OBI issues a design registration certificate without examining the substantial elements of the application. The applicant is entitled to file for the registration of up to 50 designs of the same category. The application fee is €130 for the first design, increasing by €20 for each additional design applied for.
EU designs qualify for protection in Greece either as unregistered or registered designs, provided that they are made available to the public under the respective conditions set out in EU Regulation No 6/2002.
All industrial property applications can be submitted to the OBI by electronic means.
Other registered rights
Enforcement of rights
The holder of an intellectual property right is entitled to launch civil, criminal or administrative measures against an infringer. This section focuses on protection sought in the context of civil proceedings, as more widely used in market practice. EU Directive 2004/4810 on the enforcement of intellectual property rights has been implemented in Greece through various legislative acts.
The Greek Copyright Law sets out various provisional and ordinary enforcement measures and sanctions, available in cases of copyright and related rights infringement.
Injunctive measures are available in cases of urgency or to prevent an imminent risk.11 Where there is a probable infringement, a rights holder is entitled to file a petition for injunctive measures before the competent single-member first-instance court, requesting a cease-and-desist order against the infringing actions.
Part of this process would normally be a provisional court order for cessation of the infringement and abstention in the future, a seizure of the allegedly infringing goods and, under certain circumstances, a seizure of the assets of the infringer. An important aspect of these proceedings is that injunctive measures can be taken in the absence of the infringing party (ex parte proceedings) if the plaintiff can invoke and substantiate irreparable harm.
Interim measures' proceedings do not result in a ruling on the merits of the dispute, and a deadline not exceeding 30 days is set to the plaintiff to file a lawsuit in the context of ordinary proceedings. If this is not filed, any provisional measures granted will cease to apply.
Ordinary proceedings – process
A beneficiary may seek judicial protection by means of ordinary civil proceedings. Following the filing of a lawsuit, the parties must submit their pleadings and counterarguments (rebuttals) within approximately three to four months (specific deadlines apply) and a hearing is scheduled after 45 days, which can be extended owing to court workload. Normally, litigants or their attorneys are not obliged to physically attend the hearing, since all arguments are submitted to the court in writing. A first-instance judgment is normally expected to be issued within eight to 12 months of the hearing.
Ordinary proceedings – claims
By a lawsuit filed in the context of ordinary proceedings, the plaintiff normally requests the recognition of his or her rights, the cessation of the infringement and abstention in the future. A claim would normally include the removal of the infringing goods from the market or their destruction. The plaintiff is entitled to indemnification for monetary and moral damages, the award of which generally requires the occurrence of an unlawful act, culpable behaviour by the infringer, damage and a causal link between the damage and infringing act.
For an act to qualify as unlawful, it must have interfered with the inherent moral or economic powers of the author or rights holder and must have taken place without the author's permission. A violation of the Greek Copyright Law qualifies per se as an unlawful act. Culpability (the responsibility for wrongdoing) is required only if the aggrieved party intends to file and support a claim for damages.12
In view of the difficulty in quantifying the damages associated with these disputes, the Greek Copyright Law provides13 that the indemnification amount cannot be less than twice the renumeration normally or lawfully payable in the context of the commercial exploitation of the infringed right.
Alternatively to the above indemnification, the plaintiff may claim the amount by which the defendant became richer, or the profit made by the defendant, as a result of his or her infringing behaviour.
Infringements of copyright and related rights may also entail criminal charges or the imposition of administrative sanctions and fines.
The enforcement of rights in cases of trademark infringement are similar to copyright enforcement, as both are governed by the respective provisions of EU Directive 2004/48 (transposed in Greek law by the Greek Trademark Law).
A trademark owner is entitled to request the cease-and-desist of the infringing action by means of a provisional court order. The court may order the provisional (precautionary) seizure of the infringing goods and, where appropriate, of the materials used for the production or distribution of these goods.
Injunctive measures can be taken in the absence of the infringing party (ex parte proceedings) if the plaintiff can invoke and substantiate irreparable harm. In this case, however, the defendant must be notified of the injunctive order within three working days of its execution, otherwise any enforcement of the respective court order will be null and void.
A trademark owner may also request a court order for cease-and-desist of the infringing behaviour without having to demonstrate damage or the culpability of the defendant. If the infringing behaviour is culpable (negligence or wilful misconduct), the plaintiff may also claim compensation for pecuniary and moral damages.
Disputes for trademark infringement are heard before the single-member court of first instance regardless of the amount subject to dispute, unless concurrent with other claims, such as unfair competition practice, in which case the multi-member court is competent to hear the dispute.
Proceedings may be suspended if an application for revocation or invalidity of the allegedly infringed trademark has been filed with the National Trademark Office, provided that the application precedes the service of the lawsuit.
The recently enacted Law 4679/2020 has introduced innovative defences that can be raised by a defendant in the case of a trademark infringement, such as an objection on non-usage of the trademark by the plaintiff if the infringed trademark remained unused for five years before the filing of the lawsuit, and a counterclaim by the defendant seeking the revocation or invalidity of the allegedly infringed trademark.
iii Patents and designs
A patent holder enjoys similar protection to the owner of intellectual property rights; i.e., the entitlement to injunctive measures and ordinary proceedings requesting a cease-and-desist order, restitution of the damage suffered by the plaintiff or the restitution of the benefits unlawfully obtained by the patent infringer. The same rights are awarded to any exclusive licensee of the patent, as well as a patent applicant where the patent is still pending. In the latter case, the court may suspend the hearing until the patent is granted.
Instead of the destruction of the infringing goods, a court may, following a request by the plaintiff, order that the goods are handed over to the plaintiff for compensatory purposes.
The same rights and defences are awarded for the enforcement of design rights.14 A defendant in a design infringement dispute may counterclaim invalidity of the design owing to lack of novelty or lack of individual character if an existing design that is identical or does not cause a different overall impression to the one allegedly infringed has been previously disclosed to the public.
iv Competent courts' specialisation and appeals
Intellectual property disputes (ordinary proceedings) are heard before specialised sections of the first-instance courts of Athens, Piraeus and Thessaloniki.
Judgments on intellectual property disputes are subject to an appeal, which must be filed within 30 days of the date of service to the litigants of the first-instance court judgment. This does not apply for litigants residing outside Greece, for which the deadline is extended to 60 days.
Trends and outlook
In the field of copyright protection, on 17 April 2019 the European Parliament and the Council issued Directive (EU) 2019/790 (Directive on Copyright in the Digital Single Market). While this Directive is not yet transposed in the Greek legal order, in September 2019 the Greek Minister of Culture established a Legislative Drafting Committee tasked with updating Greek legislation along the lines of EU Directive 2019/790. Directive 2019/790 has introduced several new provisions, including mandatory exceptions to copyright protection principally relating to text- and data-mining technology, teaching activities and preservation of cultural heritage, and sets out new rules on collective management, video-on-demand platforms and agreements with authors and performers.
On trademark protection, Greek courts now implement the provisions of the recently enacted Law 4679/2020. It remains to be seen how trademark protection will evolve in the local market and if trademark disputes will be resolved in a more efficient and expedient manner.
1 Lambros Belessis is a partner and Aristeidis Papathanasiou is an associate at Bernitsas Law Firm. The authors would like to thank Sofia Kamperou for her contribution to this chapter.
2 Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trademarks.
3 Greek Copyright Law Articles 13(5) and 14.
4 Greek Copyright Law Article 2(3), which implemented EU Directive 91/250/EEC (currently codified by Directive 2009/24/EC).
5 Hard-copy applications are also acceptable and subject to a slightly higher fee, currently €120.
7 Presidential Decree 259/1997 with title 'Provisions for implementing the Hague Agreement on the International Registration of Industrial Designs adopted by Law 2417/1996 and Provisions on National Protection Right'.
8 Law No. 1564/85 on plant propagating material, as amended by Law No. 2325/95.
9 Presidential Decree 45/1991 on legal protection of topographies of semiconductor products in compliance with Council Directive 87/54/EEC of 16 December 1986 as supplemented by Decisions 87/532/EEC and 88/311/EEC
10 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.
11 Greek Civil Procedure Code Article 682 ff.
12 As per Judgment 484/2020 of the Supreme Court (Areios Pagos).
13 Article 65(2) of Greek Law 2121/1993 on Copyright, Related Rights and Cultural Matters.
14 Article 28 of Presidential Decree 259/1997.