 |
Law-ref.org | Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) |
Site search
Sister sites
infringement [Global Index]
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. Members
shall ensure that enforcement procedures as specified in this Part
are available under their law so as to permit effective action
against any act of infringement of intellectual property rights
covered by this Agreement, including expeditious remedies to prevent
infringements and remedies which constitute a deterrent to further
infringements. These procedures shall be applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide
for safeguards against their abuse. ...
... 1. Members
shall ensure that enforcement procedures as specified in this Part
are available under their law so as to permit effective action
against any act of infringement of intellectual property rights
covered by this Agreement, including expeditious remedies to prevent
infringements and remedies which constitute a deterrent to further
infringements. These procedures shall be applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide
for safeguards against their abuse. ...
... 1. Members
shall ensure that enforcement procedures as specified in this Part
are available under their law so as to permit effective action
against any act of infringement of intellectual property rights
covered by this Agreement, including expeditious remedies to prevent
infringements and remedies which constitute a deterrent to further
infringements. These procedures shall be applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide
for safeguards against their abuse. ...
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. ...
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. ...
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.
...
... (a) to prevent an infringement of any intellectual property right
from occurring, and in particular to prevent the entry into the
channels of commerce in their jurisdiction of goods, including
imported goods immediately after customs clearance; ...
... 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. ...
... 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. ...
... 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. ...
... 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. ...
... Members
shall provide for criminal procedures and penalties to be applied at
least in cases of wilful trademark counterfeiting or copyright piracy
on a commercial scale. Remedies available shall include imprisonment
and/or monetary fines sufficient to provide a deterrent, consistently
with the level of penalties applied for crimes of a corresponding
gravity. In appropriate cases, remedies available shall also include
the seizure, forfeiture and destruction of the infringing goods and
of any materials and implements the predominant use of which has been
in the commission of the offence. Members may provide for criminal
procedures and penalties to be applied in other cases of infringement
of intellectual property rights, in particular where they are
committed wilfully and on a commercial scale. ...