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ARTICLE-31: Other Use Without Authorization of the Right Holder [go to this ARTICLE]
... (g) authorization for such use shall be liable, subject to adequate
protection of the legitimate interests of the persons so authorized,
to be terminated if and when the circumstances which led to it cease
to exist and are unlikely to recur. The competent authority shall
have the authority to review, upon motivated request, the continued
existence of these circumstances; ...
... (g) authorization for such use shall be liable, subject to adequate
protection of the legitimate interests of the persons so authorized,
to be terminated if and when the circumstances which led to it cease
to exist and are unlikely to recur. The competent authority shall
have the authority to review, upon motivated request, the continued
existence of these circumstances; ...
... (i) the legal validity of any decision relating to the authorization
of such use shall be subject to judicial review or other independent
review by a distinct higher authority in that Member; ...
... (j) any decision relating to the remuneration provided in respect of
such use shall be subject to judicial review or other independent
review by a distinct higher authority in that Member; ...
... (k) Members are not obliged to apply the conditions set forth in
subparagraphs (b) and (f) where such use is permitted to
remedy a practice determined after judicial or administrative process
to be anti-competitive. The need to correct anti-competitive
practices may be taken into account in determining the amount of
remuneration in such cases. Competent authorities shall have the
authority to refuse termination of authorization if and when the
conditions which led to such authorization are likely to recur; ...
... (k) Members are not obliged to apply the conditions set forth in
subparagraphs (b) and (f) where such use is permitted to
remedy a practice determined after judicial or administrative process
to be anti-competitive. The need to correct anti-competitive
practices may be taken into account in determining the amount of
remuneration in such cases. Competent authorities shall have the
authority to refuse termination of authorization if and when the
conditions which led to such authorization are likely to recur; ...
ARTICLE-34: Process Patents: Burden of Proof [go to this ARTICLE]
... 1. For the
purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28,
if the subject matter of a patent is a process for obtaining a
product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that
any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to
have been obtained by the patented process: ...
... 1. For the
purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28,
if the subject matter of a patent is a process for obtaining a
product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that
any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to
have been obtained by the patented process: ...
... 4. Parties
to a proceeding shall have an opportunity for review by a judicial
authority of final administrative decisions and, subject to
jurisdictional provisions in a Member's law concerning the importance
of a case, of at least the legal aspects of initial judicial
decisions on the merits of a case. However, there shall be no
obligation to provide an opportunity for review of acquittals in
criminal cases. ...
ARTICLE-43: Evidence [go to this ARTICLE]
... 1. The
judicial authorities shall have the authority, where a party has
presented reasonably available evidence sufficient to support its
claims and has specified evidence relevant to substantiation of its
claims which lies in the control of the opposing party, to order that
this evidence be produced by the opposing party, subject in
appropriate cases to conditions which ensure the protection of
confidential information.
...
... 1. The
judicial authorities shall have the authority, where a party has
presented reasonably available evidence sufficient to support its
claims and has specified evidence relevant to substantiation of its
claims which lies in the control of the opposing party, to order that
this evidence be produced by the opposing party, subject in
appropriate cases to conditions which ensure the protection of
confidential information.
...
... 2. In
cases in which a party to a proceeding voluntarily and without good
reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Member may accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the
information presented to them, including the complaint or the
allegation presented by the party adversely affected by the denial of
access to information, subject to providing the parties an
opportunity to be heard on the allegations or evidence. ...
... 2. In
cases in which a party to a proceeding voluntarily and without good
reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Member may accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the
information presented to them, including the complaint or the
allegation presented by the party adversely affected by the denial of
access to information, subject to providing the parties an
opportunity to be heard on the allegations or evidence. ...
ARTICLE-44: Injunctions [go to this ARTICLE]
... 1. The
judicial authorities shall have the authority to order a party to
desist from an infringement, inter alia to prevent the entry
into the channels of commerce in their jurisdiction of imported goods
that involve the infringement of an intellectual property right,
immediately after customs clearance of such goods. Members are not
obliged to accord such authority in respect of protected subject
matter acquired or ordered by a person prior to knowing or having
reasonable grounds to know that dealing in such subject matter would
entail the infringement of an intellectual property right.
...
... 1. The
judicial authorities shall have the authority to order a party to
desist from an infringement, inter alia to prevent the entry
into the channels of commerce in their jurisdiction of imported goods
that involve the infringement of an intellectual property right,
immediately after customs clearance of such goods. Members are not
obliged to accord such authority in respect of protected subject
matter acquired or ordered by a person prior to knowing or having
reasonable grounds to know that dealing in such subject matter would
entail the infringement of an intellectual property right.
...
... 1. The
judicial authorities shall have the authority to order a party to
desist from an infringement, inter alia to prevent the entry
into the channels of commerce in their jurisdiction of imported goods
that involve the infringement of an intellectual property right,
immediately after customs clearance of such goods. Members are not
obliged to accord such authority in respect of protected subject
matter acquired or ordered by a person prior to knowing or having
reasonable grounds to know that dealing in such subject matter would
entail the infringement of an intellectual property right.
...
ARTICLE-45: Damages [go to this ARTICLE]
... 1. The
judicial authorities shall have the authority to order the infringer
to pay the right holder damages adequate to compensate for the injury
the right holder has suffered because of an infringement of that
person's intellectual property right by an infringer who
knowingly, or with reasonable grounds to know, engaged in infringing
activity. ...
... 1. The
judicial authorities shall have the authority to order the infringer
to pay the right holder damages adequate to compensate for the injury
the right holder has suffered because of an infringement of that
person's intellectual property right by an infringer who
knowingly, or with reasonable grounds to know, engaged in infringing
activity. ...
... 2. The
judicial authorities shall also have the authority to order the
infringer to pay the right holder expenses, which may include
appropriate attorney's fees. In appropriate cases, Members may
authorize the judicial authorities to order recovery of profits
and/or payment of pre-established damages even where the infringer
did not knowingly, or with reasonable grounds to know, engage in
infringing activity. ...
... 2. The
judicial authorities shall also have the authority to order the
infringer to pay the right holder expenses, which may include
appropriate attorney's fees. In appropriate cases, Members may
authorize the judicial authorities to order recovery of profits
and/or payment of pre-established damages even where the infringer
did not knowingly, or with reasonable grounds to know, engage in
infringing activity. ...
... 2. The
judicial authorities shall also have the authority to order the
infringer to pay the right holder expenses, which may include
appropriate attorney's fees. In appropriate cases, Members may
authorize the judicial authorities to order recovery of profits
and/or payment of pre-established damages even where the infringer
did not knowingly, or with reasonable grounds to know, engage in
infringing activity. ...
ARTICLE-46: Other Remedies [go to this ARTICLE]
... In order
to create an effective deterrent to infringement, the judicial
authorities shall have the authority to order that goods that they
have found to be infringing be, without compensation of any sort,
disposed of outside the channels of commerce in such a manner as to
avoid any harm caused to the right holder, or, unless this would be
contrary to existing constitutional requirements, destroyed. The
judicial authorities shall also have the authority to order that
materials and implements the predominant use of which has been in the
creation of the infringing goods be, without compensation of any
sort, disposed of outside the channels of commerce in such a manner
as to minimize the risks of further infringements. In considering
such requests, the need for proportionality between the seriousness
of the infringement and the remedies ordered as well as the interests
of third parties shall be taken into account. In regard to
counterfeit trademark goods, the simple removal of the trademark
unlawfully affixed shall not be sufficient, other than in exceptional
cases, to permit release of the goods into the channels of commerce. ...
... In order
to create an effective deterrent to infringement, the judicial
authorities shall have the authority to order that goods that they
have found to be infringing be, without compensation of any sort,
disposed of outside the channels of commerce in such a manner as to
avoid any harm caused to the right holder, or, unless this would be
contrary to existing constitutional requirements, destroyed. The
judicial authorities shall also have the authority to order that
materials and implements the predominant use of which has been in the
creation of the infringing goods be, without compensation of any
sort, disposed of outside the channels of commerce in such a manner
as to minimize the risks of further infringements. In considering
such requests, the need for proportionality between the seriousness
of the infringement and the remedies ordered as well as the interests
of third parties shall be taken into account. In regard to
counterfeit trademark goods, the simple removal of the trademark
unlawfully affixed shall not be sufficient, other than in exceptional
cases, to permit release of the goods into the channels of commerce. ...
... In order
to create an effective deterrent to infringement, the judicial
authorities shall have the authority to order that goods that they
have found to be infringing be, without compensation of any sort,
disposed of outside the channels of commerce in such a manner as to
avoid any harm caused to the right holder, or, unless this would be
contrary to existing constitutional requirements, destroyed. The
judicial authorities shall also have the authority to order that
materials and implements the predominant use of which has been in the
creation of the infringing goods be, without compensation of any
sort, disposed of outside the channels of commerce in such a manner
as to minimize the risks of further infringements. In considering
such requests, the need for proportionality between the seriousness
of the infringement and the remedies ordered as well as the interests
of third parties shall be taken into account. In regard to
counterfeit trademark goods, the simple removal of the trademark
unlawfully affixed shall not be sufficient, other than in exceptional
cases, to permit release of the goods into the channels of commerce. ...
... In order
to create an effective deterrent to infringement, the judicial
authorities shall have the authority to order that goods that they
have found to be infringing be, without compensation of any sort,
disposed of outside the channels of commerce in such a manner as to
avoid any harm caused to the right holder, or, unless this would be
contrary to existing constitutional requirements, destroyed. The
judicial authorities shall also have the authority to order that
materials and implements the predominant use of which has been in the
creation of the infringing goods be, without compensation of any
sort, disposed of outside the channels of commerce in such a manner
as to minimize the risks of further infringements. In considering
such requests, the need for proportionality between the seriousness
of the infringement and the remedies ordered as well as the interests
of third parties shall be taken into account. In regard to
counterfeit trademark goods, the simple removal of the trademark
unlawfully affixed shall not be sufficient, other than in exceptional
cases, to permit release of the goods into the channels of commerce. ...
ARTICLE-47: Right of Information [go to this ARTICLE]
... Members
may provide that the judicial authorities shall have the authority,
unless this would be out of proportion to the seriousness of the
infringement, to order the infringer to inform the right holder of
the identity of third persons involved in the production and
distribution of the infringing goods or services and of their
channels of distribution.
...
... Members
may provide that the judicial authorities shall have the authority,
unless this would be out of proportion to the seriousness of the
infringement, to order the infringer to inform the right holder of
the identity of third persons involved in the production and
distribution of the infringing goods or services and of their
channels of distribution.
...
ARTICLE-48: Indemnification of the Defendant [go to this ARTICLE]
... 1. The
judicial authorities shall have the authority to order a party at
whose request measures were taken and who has abused enforcement
procedures to provide to a party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such abuse.
The judicial authorities shall also have the authority to order the
applicant to pay the defendant expenses, which may include
appropriate attorney's fees. ...
... 1. The
judicial authorities shall have the authority to order a party at
whose request measures were taken and who has abused enforcement
procedures to provide to a party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such abuse.
The judicial authorities shall also have the authority to order the
applicant to pay the defendant expenses, which may include
appropriate attorney's fees. ...
... 1. The
judicial authorities shall have the authority to order a party at
whose request measures were taken and who has abused enforcement
procedures to provide to a party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such abuse.
The judicial authorities shall also have the authority to order the
applicant to pay the defendant expenses, which may include
appropriate attorney's fees. ...
... 1. The
judicial authorities shall have the authority to order a party at
whose request measures were taken and who has abused enforcement
procedures to provide to a party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such abuse.
The judicial authorities shall also have the authority to order the
applicant to pay the defendant expenses, which may include
appropriate attorney's fees. ...
... 2. In
respect of the administration of any law pertaining to the protection
or enforcement of intellectual property rights, Members shall only
exempt both public authorities and officials from liability to
appropriate remedial measures where actions are taken or intended in
good faith in the course of the administration of that law. ...
... 1. The
judicial authorities shall have the authority to order prompt and
effective provisional measures: ...
... 1. The
judicial authorities shall have the authority to order prompt and
effective provisional measures: ...
... 2. The
judicial authorities shall have the authority to adopt provisional
measures inaudita altera parte where appropriate, in
particular where any delay is likely to cause irreparable harm to the
right holder, or where there is a demonstrable risk of evidence being
destroyed.
...
... 2. The
judicial authorities shall have the authority to adopt provisional
measures inaudita altera parte where appropriate, in
particular where any delay is likely to cause irreparable harm to the
right holder, or where there is a demonstrable risk of evidence being
destroyed.
...
... 3. The
judicial authorities shall have the authority to require the
applicant to provide any reasonably available evidence in order to
satisfy themselves with a sufficient degree of certainty that the
applicant is the right holder and that the applicant's right is
being infringed or that such infringement is imminent, and to order
the applicant to provide a security or equivalent assurance
sufficient to protect the defendant and to prevent abuse. ...
... 3. The
judicial authorities shall have the authority to require the
applicant to provide any reasonably available evidence in order to
satisfy themselves with a sufficient degree of certainty that the
applicant is the right holder and that the applicant's right is
being infringed or that such infringement is imminent, and to order
the applicant to provide a security or equivalent assurance
sufficient to protect the defendant and to prevent abuse. ...
... 5. The
applicant may be required to supply other information necessary for
the identification of the goods concerned by the authority that will
execute the provisional measures.
...
... 6. Without
prejudice to paragraph 4, provisional measures taken on the basis of
paragraphs 1 and 2 shall, upon request by the defendant, be
revoked or otherwise cease to have effect, if proceedings leading to
a decision on the merits of the case are not initiated within a
reasonable period, to be determined by the judicial authority
ordering the measures where a Member's law so permits or, in the
absence of such a determination, not to exceed 20 working days or 31
calendar days, whichever is the longer. ...
... 7. Where
the provisional measures are revoked or where they lapse due to any
act or omission by the applicant, or where it is subsequently found
that there has been no infringement or threat of infringement of an
intellectual property right, the judicial authorities shall have the
authority to order the applicant, upon request of the defendant, to
provide the defendant appropriate compensation for any injury caused
by these measures. ...
... 7. Where
the provisional measures are revoked or where they lapse due to any
act or omission by the applicant, or where it is subsequently found
that there has been no infringement or threat of infringement of an
intellectual property right, the judicial authorities shall have the
authority to order the applicant, upon request of the defendant, to
provide the defendant appropriate compensation for any injury caused
by these measures. ...
ARTICLE-51: Suspension of Release by Customs Authorities [go to this ARTICLE]
... Members
shall, in conformity with the provisions set out below, adopt
procedures(13)
to enable a right holder, who has valid grounds for suspecting that
the importation of counterfeit trademark or pirated copyright goods(14)
may take place, to lodge an application in writing with competent
authorities, administrative or judicial, for the suspension by the
customs authorities of the release into free circulation of such
goods. Members may enable such an application to be made in respect
of goods which involve other infringements of intellectual property
rights, provided that the requirements of this Section are met.
Members may also provide for corresponding procedures concerning the
suspension by the customs authorities of the release of infringing
goods destined for exportation from their territories. ...
... Members
shall, in conformity with the provisions set out below, adopt
procedures(13)
to enable a right holder, who has valid grounds for suspecting that
the importation of counterfeit trademark or pirated copyright goods(14)
may take place, to lodge an application in writing with competent
authorities, administrative or judicial, for the suspension by the
customs authorities of the release into free circulation of such
goods. Members may enable such an application to be made in respect
of goods which involve other infringements of intellectual property
rights, provided that the requirements of this Section are met.
Members may also provide for corresponding procedures concerning the
suspension by the customs authorities of the release of infringing
goods destined for exportation from their territories. ...
... Members
shall, in conformity with the provisions set out below, adopt
procedures(13)
to enable a right holder, who has valid grounds for suspecting that
the importation of counterfeit trademark or pirated copyright goods(14)
may take place, to lodge an application in writing with competent
authorities, administrative or judicial, for the suspension by the
customs authorities of the release into free circulation of such
goods. Members may enable such an application to be made in respect
of goods which involve other infringements of intellectual property
rights, provided that the requirements of this Section are met.
Members may also provide for corresponding procedures concerning the
suspension by the customs authorities of the release of infringing
goods destined for exportation from their territories. ...
... Any
right holder initiating the procedures under Article 51 shall be
required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there
is prima facie an infringement of the right holder's
intellectual property right and to supply a sufficiently detailed
description of the goods to make them readily recognizable by the
customs authorities. The competent authorities shall inform the
applicant within a reasonable period whether they have accepted the
application and, where determined by the competent authorities, the
period for which the customs authorities will take action. ...
... Any
right holder initiating the procedures under Article 51 shall be
required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there
is prima facie an infringement of the right holder's
intellectual property right and to supply a sufficiently detailed
description of the goods to make them readily recognizable by the
customs authorities. The competent authorities shall inform the
applicant within a reasonable period whether they have accepted the
application and, where determined by the competent authorities, the
period for which the customs authorities will take action. ...
... Any
right holder initiating the procedures under Article 51 shall be
required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there
is prima facie an infringement of the right holder's
intellectual property right and to supply a sufficiently detailed
description of the goods to make them readily recognizable by the
customs authorities. The competent authorities shall inform the
applicant within a reasonable period whether they have accepted the
application and, where determined by the competent authorities, the
period for which the customs authorities will take action. ...
... Any
right holder initiating the procedures under Article 51 shall be
required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there
is prima facie an infringement of the right holder's
intellectual property right and to supply a sufficiently detailed
description of the goods to make them readily recognizable by the
customs authorities. The competent authorities shall inform the
applicant within a reasonable period whether they have accepted the
application and, where determined by the competent authorities, the
period for which the customs authorities will take action. ...
... Any
right holder initiating the procedures under Article 51 shall be
required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there
is prima facie an infringement of the right holder's
intellectual property right and to supply a sufficiently detailed
description of the goods to make them readily recognizable by the
customs authorities. The competent authorities shall inform the
applicant within a reasonable period whether they have accepted the
application and, where determined by the competent authorities, the
period for which the customs authorities will take action. ...
... 1. The
competent authorities shall have the authority to require an
applicant to provide a security or equivalent assurance sufficient to
protect the defendant and the competent authorities and to prevent
abuse. Such security or equivalent assurance shall not unreasonably
deter recourse to these procedures. ...
... 1. The
competent authorities shall have the authority to require an
applicant to provide a security or equivalent assurance sufficient to
protect the defendant and the competent authorities and to prevent
abuse. Such security or equivalent assurance shall not unreasonably
deter recourse to these procedures. ...
... 1. The
competent authorities shall have the authority to require an
applicant to provide a security or equivalent assurance sufficient to
protect the defendant and the competent authorities and to prevent
abuse. Such security or equivalent assurance shall not unreasonably
deter recourse to these procedures. ...
... 2. Where
pursuant to an application under this Section the release of goods
involving industrial designs, patents, layout-designs or undisclosed
information into free circulation has been suspended by customs
authorities on the basis of a decision other than by a judicial or
other independent authority, and the period provided for in
Article 55 has expired without the granting of provisional
relief by the duly empowered authority, and provided that all other
conditions for importation have been complied with, the owner,
importer, or consignee of such goods shall be entitled to their
release on the posting of a security in an amount sufficient to
protect the right holder for any infringement. Payment of such
security shall not prejudice any other remedy available to the right
holder, it being understood that the security shall be released if
the right holder fails to pursue the right of action within a
reasonable period of time. ...
... 2. Where
pursuant to an application under this Section the release of goods
involving industrial designs, patents, layout-designs or undisclosed
information into free circulation has been suspended by customs
authorities on the basis of a decision other than by a judicial or
other independent authority, and the period provided for in
Article 55 has expired without the granting of provisional
relief by the duly empowered authority, and provided that all other
conditions for importation have been complied with, the owner,
importer, or consignee of such goods shall be entitled to their
release on the posting of a security in an amount sufficient to
protect the right holder for any infringement. Payment of such
security shall not prejudice any other remedy available to the right
holder, it being understood that the security shall be released if
the right holder fails to pursue the right of action within a
reasonable period of time. ...
... 2. Where
pursuant to an application under this Section the release of goods
involving industrial designs, patents, layout-designs or undisclosed
information into free circulation has been suspended by customs
authorities on the basis of a decision other than by a judicial or
other independent authority, and the period provided for in
Article 55 has expired without the granting of provisional
relief by the duly empowered authority, and provided that all other
conditions for importation have been complied with, the owner,
importer, or consignee of such goods shall be entitled to their
release on the posting of a security in an amount sufficient to
protect the right holder for any infringement. Payment of such
security shall not prejudice any other remedy available to the right
holder, it being understood that the security shall be released if
the right holder fails to pursue the right of action within a
reasonable period of time. ...
ARTICLE-55: Duration of Suspension [go to this ARTICLE]
... If,
within a period not exceeding 10 working days after the applicant has
been served notice of the suspension, the customs authorities have
not been informed that proceedings leading to a decision on the
merits of the case have been initiated by a party other than the
defendant, or that the duly empowered authority has taken provisional
measures prolonging the suspension of the release of the goods, the
goods shall be released, provided that all other conditions for
importation or exportation have been complied with; in appropriate
cases, this time-limit may be extended by another 10 working days.
If proceedings leading to a decision on the merits of the case have
been initiated, a review, including a right to be heard, shall take
place upon request of the defendant with a view to deciding, within a
reasonable period, whether these measures shall be modified, revoked
or confirmed. Notwithstanding the above, where the suspension of the
release of goods is carried out or continued in accordance with a
provisional judicial measure, the provisions of paragraph 6 of
Article 50 shall apply. ...
... If,
within a period not exceeding 10 working days after the applicant has
been served notice of the suspension, the customs authorities have
not been informed that proceedings leading to a decision on the
merits of the case have been initiated by a party other than the
defendant, or that the duly empowered authority has taken provisional
measures prolonging the suspension of the release of the goods, the
goods shall be released, provided that all other conditions for
importation or exportation have been complied with; in appropriate
cases, this time-limit may be extended by another 10 working days.
If proceedings leading to a decision on the merits of the case have
been initiated, a review, including a right to be heard, shall take
place upon request of the defendant with a view to deciding, within a
reasonable period, whether these measures shall be modified, revoked
or confirmed. Notwithstanding the above, where the suspension of the
release of goods is carried out or continued in accordance with a
provisional judicial measure, the provisions of paragraph 6 of
Article 50 shall apply. ...
... Relevant
authorities shall have the authority to order the applicant to pay
the importer, the consignee and the owner of the goods appropriate
compensation for any injury caused to them through the wrongful
detention of goods or through the detention of goods released
pursuant to Article 55. ...
... Relevant
authorities shall have the authority to order the applicant to pay
the importer, the consignee and the owner of the goods appropriate
compensation for any injury caused to them through the wrongful
detention of goods or through the detention of goods released
pursuant to Article 55. ...
... Without
prejudice to the protection of confidential information, Members
shall provide the competent authorities the authority to give the
right holder sufficient opportunity to have any goods detained by the
customs authorities inspected in order to substantiate the right
holder's claims. The competent authorities shall also have
authority to give the importer an equivalent