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Стр. 4
Initial registration, and each renewal of registration, of a
trademark shall be for a term of no less than seven years. The
registration of a trademark shall be renewable indefinitely.
Article 19
Requirement of Use
1. If use is required to maintain a registration, the
registration may be cancelled only after an uninterrupted period
of at least three years of non-use, unless valid reasons based on
the existence of obstacles to such use are shown by the trademark
owner. Circumstances arising independently of the will of the
owner of the trademark which constitute an obstacle to the use of
the trademark, such as import restrictions on or other government
requirements for goods or services protected by the trademark,
shall be recognized as valid reasons for non-use.
2. When subject to the control of its owner, use of a
trademark by another person shall be recognized as use of the
trademark for the purpose of maintaining the registration.
Article 20
Other Requirements
The use of a trademark in the course of trade shall not be
unjustifiably encumbered by special requirements, such as use with
another trademark, use in a special form or use in a manner
detrimental to its capability to distinguish the goods or services
of one undertaking from those of other undertakings. This will not
preclude a requirement prescribing the use of the trademark
identifying the undertaking producing the goods or services along
with, but without linking it to, the trademark distinguishing the
specific goods or services in question of that undertaking.
Article 21
Licensing and Assignment
Members may determine conditions on the licensing and
assignment of trademarks, it being understood that the compulsory
licensing of trademarks shall not be permitted and that the owner
of a registered trademark shall have the right to assign the
trademark with or without the transfer of the business to which
the trademark belongs.
Section 3
GEOGRAPHICAL INDICATIONS
Article 22
Protection of Geographical Indications
1. Geographical indications are, for the purposes of this
Agreement, indications which identify a good as originating in the
territory of a Member, or a region or locality in that territory,
where a given quality, reputation or other characteristic of the
good is essentially attributable to its geographical origin.
2. In respect of geographical indications, Members shall
provide the legal means for interested parties to prevent:
(a) the use of any means in the designation or presentation of
a good that indicates or suggests that the good in question
originates in a geographical area other than the true place of
origin in a manner which misleads the public as to the
geographical origin of the good;
(b) any use which constitutes an act of unfair competition
within the meaning of Article 10 bis of the Paris Convention
(1967).
3. A Member shall, ex officio if its legislation so permits or
at the request of an interested party, refuse or invalidate the
registration of a trademark which contains or consists of a
geographical indication with respect to goods not originating in
the territory indicated, if use of the indication in the trademark
for such goods in that Member is of such a nature as to mislead
the public as to the true place of origin.
4. The protection under paragraphs 1, 2 and 3 shall be
applicable against a geographical indication which, although
literally true as to the territory, region or locality in which
the goods originate, falsely represents to the public that the
goods originate in another territory.
Article 23
Additional Protection for Geographical Indications
for Wines and Spirits
1. Each Member shall provide the legal means for interested
parties to prevent use of a geographical indication identifying
wines for wines not originating in the place indicated by the
geographical indication in question or identifying spirits for
spirits not originating in the place indicated by the geographical
indication in question, even where the true origin of the goods is
indicated or the geographical indication is used in translation or
accompanied by expressions such as "kind", "type", "style",
"imitation" or the like. <*>
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<*> Notwithstanding the first sentence of Article 42, Members
may, with respect to these obligations, instead provide for
enforcement by administrative action.
2. The registration of a trademark for wines which contains or
consists of a geographical indication identifying wines or for
spirits which contains or consists of a geographical indication
identifying spirits shall be refused or invalidated, ex officio if
a Member's legislation so permits or at the request of an
interested party, with respect to such wines or spirits not having
this origin.
3. In the case of homonymous geographical indications for
wines, protection shall be accorded to each indication, subject to
the provisions of paragraph 4 of Article 22. Each Member shall
determine the practical conditions under which the homonymous
indications in question will be differentiated from each other,
taking into account the need to ensure equitable treatment of the
producers concerned and that consumers are not misled.
4. In order to facilitate the protection of geographical
indications for wines, negotiations shall be undertaken in the
Council for TRIPS concerning the establishment of a multilateral
system of notification and registration of geographical
indications for wines eligible for protection in those Members
participating in the system.
Article 24
International Negotiations: Exceptions
1. Members agree to enter into negotiations aimed at
increasing the protection of individual geographical indications
under Article 23. The provisions of paragraphs 4 through 8 below
shall not be used by a Member to refuse to conduct negotiations or
to conclude bilateral or multilateral agreements. In the context
of such negotiations, Members shall be willing to consider the
continued applicability of these provisions to individual
geographical indications whose use was the subject of such
negotiations.
2. The Council for TRIPS shall keep under review the
application of the provisions of this Section; the first such
review shall take place within two years of the entry into force
of the WTO Agreement. Any matter affecting the compliance with the
obligations under these provisions may be drawn to the attention
of the Council, which, at the request of a Member, shall consult
with any Member or Members in respect of such matter in respect of
which it has not been possible to find a satisfactory solution
through bilateral or plurilateral consultations between the
Members concerned. The Council shall take such action as may be
agreed to facilitate the operation and further the objectives of
this Section.
3. In implementing this Section, a Member shall not diminish
the protection of geographical indications that existed in that
Member immediately prior to the date of entry into force of the
WTO Agreement.
4. Nothing in this Section shall require a Member to prevent
continued and similar use of a particular geographical indication
of another Member identifying wines or spirits in connection with
goods or services by any of its nationals or domiciliaries who
have used that geographical indication in a continuous manner with
regard to the same or related goods or services in the territory
of that Member either (a) for at least 10 years preceding 15 April
1994 or (b) in good faith preceding that date.
5. Where a trademark has been applied for or registered in
good faith, or where rights to a trademark have been acquired
through use in good faith either:
(a) before the date of application of these provisions in that
Member as defined in Part VI; or
(b) before the geographical indication is protected in its
country of origin;
measures adopted to implement this Section shall not prejudice
eligibility for or the validity of the registration of a
trademark, or the right to use a trademark, on the basis that such
a trademark is identical with, or similar to, a geographical
indication.
6. Nothing in this Section shall require a Member to apply its
provisions in respect of a geographical indication of any other
Member with respect to goods or services for which the relevant
indication is identical with the term customary in common language
as the common name for such goods or services in the territory of
that Member. Nothing in this Section shall require a Member to
apply its provisions in respect of a geographical indication of
any other Member with respect to products of the vine for which
the relevant indication is identical with the customary name of a
grape variety existing in the territory of that Member as of the
date of entry into force of the WTO Agreement.
7. A Member may provide that any request made under this
Section in connection with the use or registration of a trademark
must be presented within five years after the adverse use of the
protected indication has become generally known in that Member or
after the date of registration of the trademark in that Member
provided that the trademark has been published by that date, if
such date is earlier than the date on which the adverse use became
generally known in that Member, provided that the geographical
indication is not used or registered in bad faith.
8. The provisions of this Section shall in no way prejudice
the right of any person to use, in the course of trade, that
person's name or the name of that person's predecessor in
business, except where such name is used in such a manner as to
mislead the public.
9. There shall be no obligation under this Agreement to
protect geographical indications which are not or cease to be
protected in their country of origin, or which have fallen into
disuse in that country.
Section 4
INDUSTRIAL DESIGNS
Article 25
Requirements for Protection
1. Members shall provide for the protection of independently
created industrial designs that are new or original. Members may
provide that designs are not new or original if they do not
significantly differ from known designs or combinations of known
design features. Members may provide that such protection shall
not extend to designs dictated essentially by technical or
functional considerations.
2. Each Member shall ensure that requirements for securing
protection for textile designs, in particular in regard to any
cost, examination or publication, do not unreasonably impair the
opportunity to seek and obtain such protection. Members shall be
free to meet this obligation through industrial design law or
through copyright law.
Article 26
Protection
1. The owner of a protected industrial design shall have the
right to prevent third parties not having the owner's consent from
making, selling or importing articles bearing or embodying a
design which is a copy, or substantially a copy, of the protected
design, when such acts are undertaken for commercial purposes.
2. Members may provide limited exceptions to the protection of
industrial designs, provided that such exceptions do not
unreasonably conflict with the normal exploitation of protected
industrial designs and do not unreasonably prejudice the
legitimate interests of the owner of the protected design, taking
account of the legitimate interests of third parties.
3. The duration of protection available shall amount to at
least 10 years.
Section 5
PATENTS
Article 27
Patentable Subject Matter
1. Subject to the provisions of paragraphs 2 and 3, patents
shall be available for any inventions, whether products or
processes, in all fields of technology, provided that they are
new, involve an inventive step and are capable of industrial
application <*>. Subject to paragraph 4 of Article 65, paragraph 8
of Article 70 and paragraph 3 of this Article, patents shall be
available and patent rights enjoyable without discrimination as to
the place of invention, the field of technology and whether
products are imported or locally produced.
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<*> For the purposes of this Article, the terms "inventive
step" and "capable of industrial application" may be deemed by a
Member to be synonymous with the terms "non-obvious" and "useful"
respectively.
2. Members may exclude from patentability inventions, the
prevention within their territory of the commercial exploitation
of which is necessary to protect ordre public or morality,
including to protect human, animal or plant life or health or to
avoid serious prejudice to the environment, provided that such
exclusion is not made merely because the exploitation is
prohibited by their law.
3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the
treatment of humans or animals;
(b) plants and animals other than micro-organisms, and
essentially biological processes for the production of plants or
animals other than non-biological and microbiological processes.
However, Members shall provide for the protection of plant
varieties either by patents or by an effective sui generis system
or by any combination thereof. The provisions of this subparagraph
shall be reviewed four years after the date of entry into force of
the WTO Agreement.
Article 28
Rights Conferred
1. A patent shall confer on its owner the following exclusive
rights:
(a) where the subject matter of a patent is a product, to
prevent third parties not having the owner's consent from the acts
of: making, using, offering for sale, selling, or importing <*>
for these purposes that product;
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<*> This right, like all other rights conferred under this
Agreement in respect of the use, sale, importation or other
distribution of goods, is subject to the provisions of Article 6.
(b) where the subject matter of a patent is a process, to
prevent third parties not having the owner's consent from the act
of using the process, and from the acts of: using, offering for
sale, selling, or importing for these purposes at least the
product obtained directly by that process.
2. Patent owners shall also have the right to assign, or
transfer by succession, the patent and to conclude licensing
contracts.
Article 29
Conditions on Patent Applicants
1. Members shall require that an applicant for a patent shall
disclose the invention in a manner sufficiently clear and complete
for the invention to be carried out by a person skilled in the art
and may require the applicant to indicate the best mode for
carrying out the invention known to the inventor at the filing
date or, where priority is claimed, at the priority date of the
application.
2. Members may require an applicant for a patent to provide
information concerning the applicant's corresponding foreign
applications and grants.
Article 30
Exceptions to Rights Conferred
Members may provide limited exceptions to the exclusive rights
conferred by a patent, provided that such exceptions do not
unreasonably conflict with a normal exploitation of the patent and
do not unreasonably prejudice the legitimate interests of the
patent owner, taking account of the legitimate interests of third
parties.
Article 31
Other Use Without Authorization of the Right Holder
Where the law of a Member allows for other use <*> of the
subject matter of a patent without the authorization of the right
holder, including use by the government or third parties
authorized by the government, the following provisions shall be
respected:
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<*> "Other use" refers to use other than that allowed under
Article 30.
(a) authorization of such use shall be considered on its
individual merits;
(b) such use may only be permitted if, prior to such use, the
proposed user has made efforts to obtain authorization from the
right holder on reasonable commercial terms and conditions and
that such efforts have not been successful within a reasonable
period of time. This requirement may be waived by a Member in the
case of a national emergency or other circumstances of extreme
urgency or in cases of public non-commercial use. In situations of
national emergency or other circumstances of extreme urgency, the
right holder shall, nevertheless, be notified as soon as
reasonably practicable. In the case of public non-commercial use,
where the government or contractor, without making a patent
search, knows or has demonstrable grounds to know that a valid
patent is or will be used by or for the government, the right
holder shall be informed promptly;
(c) the scope and duration of such use shall be limited to the
purpose for which it was authorized, and in the case of
semi-conductor technology shall only be for public non-commercial
use or to remedy a practice determined after judicial or
administrative process to be anti-competitive;
(d) such use shall be non-exclusive;
(e) such use shall be non-assignable, except with that part of
the enterprise or goodwill which enjoys such use;
(f) any such use shall be authorized predominantly for the
supply of the domestic market of the Member authorizing such use;
(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;
(h) the right holder shall be paid adequate remuneration in
the circumstances of each case, taking into account the economic
value of the authorization;
(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;
(l) where such use is authorized to permit the exploitation of
a patent ("the second patent") which cannot be exploited without
infringing another patent ("the first patent"), the following
additional conditions shall apply:
(i) the invention claimed in the second patent shall
involve an important technical advance of considerable
economic significance in relation to the invention claimed in
the first patent;
(ii) the owner of the first patent shall be entitled to a
cross-licence on reasonable terms to use the invention claimed
in the second patent; and
(iii) the use authorized in respect of the first patent
shall be non-assignable except with the assignment of the
second patent.
Article 32
Revocation / Forfeiture
An opportunity for judicial review of any decision to revoke
or forfeit a patent shall be available.
Article 33
Term of Protection
The term of protection available shall not end before the
expiration of a period of twenty years counted from the filing
date. <*>
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<*> It is understood that those Members which do not have a
system of original grant may provide that the term of protection
shall be computed from the filing date in the system of original
grant.
Article 34
Process Patents: Burden of Proof
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:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical
product was made by the process and the owner of the patent has
been unable through reasonable efforts to determine the process
actually used.
2. Any Member shall be free to provide that the burden of
proof indicated in paragraph 1 shall be on the alleged infringer
only if the condition referred to in subparagraph (a) is fulfilled
or only if the condition referred to in subparagraph (b) is
fulfilled.
3. In the adduction of proof to the contrary, the legitimate
interests of defendants in protecting their manufacturing and
business secrets shall be taken into account.
Section 6
LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS
Article 35
Relation to the IPIC Treaty
Members agree to provide protection to the layout-designs
(topographies) of integrated circuits (referred to in this
Agreement as "layout-designs") in accordance with Articles 2
through 7 (other than paragraph 3 of Article 6), Article 12 and
paragraph 3 of Article 16 of the Treaty on Intellectual Property
in Respect of Integrated Circuits and, in addition, to comply with
the following provisions.
Article 36
Scope of the Protection
Subject to the provisions of paragraph 1 of Article 37,
Members shall consider unlawful the following acts if performed
without the authorization of the right holder <*>: importing,
selling, or otherwise distributing for commercial purposes a
protected layout-design, an integrated circuit in which a
protected layout-design is incorporated, or an article
incorporating such an integrated circuit only in so far as it
continues to contain an unlawfully reproduced layout-design.
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<*> The term "right holder" in this Section shall be
understood as having the same meaning as the term "holder of the
right" in the IPIC Treaty.
Article 37
Acts Not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36, no Member shall consider
unlawful the performance of any of the acts referred to in that
Article in respect of an integrated circuit incorporating an
unlawfully reproduced layout-design or any article incorporating
such an integrated circuit where the person performing or ordering
such acts did not know and had no reasonable ground to know, when
acquiring the integrated circuit or article incorporating such an
integrated circuit, that it incorporated an unlawfully reproduced
layout-design. Members shall provide that, after the time that
such person has received sufficient notice that the layout-design
was unlawfully reproduced, that person may perform any of the acts
with respect to the stock on hand or ordered before such time, but
shall be liable to pay to the right holder a sum equivalent to a
reasonable royalty such as would be payable under a freely
negotiated licence in respect of such a layout-design.
2. The conditions set out in subparagraphs (a) through (k) of
Article 31 shall apply mutatis mutandis in the event of any
non-voluntary licensing of a layout-design or of its use by or for
the government without the authorization of the right holder.
Article 38
Term of Protection
1. In Members requiring registration as a condition of
protection, the term of protection of layout-designs shall not end
before the expiration of a period of 10 years counted from the
date of filing an application for registration or from the first
commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for
protection, layout-designs shall be protected for a term of no
less than 10 years from the date of the first commercial
exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide
that protection shall lapse 15 years after the creation of the
layout-design.
Section 7
PROTECTION OF UNDISCLOSED INFORMATION
Article 39
1. In the course of ensuring effective protection against
unfair competition as provided in Article 10 bis of the Paris
Convention (1967), Members shall protect undisclosed information
in accordance with paragraph 2 and data submitted to governments
or governmental agencies in accordance with paragraph 3.
2. Natural and legal persons shall have the possibility of
preventing information lawfully within their control from being
disclosed to, acquired by, or used by others without their consent
in a manner contrary to honest commercial practices <*> so long as
such information:
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<*> For the purpose of this provision, "a manner contrary to
honest commercial practices" shall mean at least practices such as
breach of contract, breach of confidence and inducement to breach,
and includes the acquisition of undisclosed information by third
parties who knew, or were grossly negligent in failing to know,
that such practices were involved in the acquisition.
(a) is secret in the sense that it is not, as a body or in the
precise configuration and assembly of its components, generally
known among or readily accessible to persons within the circles
that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the
circumstances, by the person lawfully in control of the
information, to keep it secret.
3. Members, when requiring, as a condition of approving the
marketing of pharmaceutical or of agricultural chemical products
which utilize new chemical entities, the submission of undisclosed
test or other data, the origination of which involves considerable
effort, shall protect such data against unfair commercial use. In
addition, Members shall protect such data against disclosure,
except where necessary to protect the public, or unless steps are
taken to ensure that the data are protected against unfair
commercial use.
Section 8
CONTROL OF ANTI-COMPETITIVE PRACTICES
IN CONTRACTUAL LICENCES
Article 40
1. Members agree that some licensing practices or conditions
pertaining to intellectual property rights which restrain
competition may have adverse effects on trade and may impede the
transfer and dissemination of technology.
2. Nothing in this Agreement shall prevent Members from
specifying in their legislation licensing practices or conditions
that may in particular cases constitute an abuse of intellectual
property rights having an adverse effect on competition in the
relevant market. As provided above, a Member may adopt,
consistently with the other provisions of this Agreement,
appropriate measures to prevent or control such practices, which
may include for example exclusive grantback conditions, conditions
preventing challenges to validity and coercive package licensing,
in the light of the relevant laws and regulations of that Member.
3. Each Member shall enter, upon request, into consultations
with any other Member which has cause to believe that an
intellectual property right owner that is a national or
domiciliary of the Member to which the request for consultations
has been addressed is undertaking practices in violation of the
requesting Member's laws and regulations on the subject matter of
this Section, and which wishes to secure compliance with such
legislation, without prejudice to any action under the law and to
the full freedom of an ultimate decision of either Member. The
Member addressed shall accord full and sympathetic consideration
to, and shall afford adequate opportunity for, consultations with
the requesting Member, and shall cooperate through supply of
publicly available non-confidential information of relevance to
the matter in question and of other information available to the
Member, subject to domestic law and to the conclusion of mutually
satisfactory agreements concerning the safeguarding of its
confidentiality by the requesting Member.
4. A Member whose nationals or domiciliaries are subject to
proceedings in another Member concerning alleged violation of that
other Member's laws and regulations on the subject matter of this
Section shall, upon request, be granted an opportunit for
consultations by the other Member under the same conditions as
those foreseen in paragraph 3.
PART III. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Section 1
GENERAL OBLIGATIONS
Article 41
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.
2. Procedures concerning the enforcement of intellectual
property rights shall be fair and equitable. They shall not be
unnecessarily complicated or costly, or entail unreasonable
time-limits or unwarranted delays.
3. Decisions on the merits of a case shall preferably be in
writing and reasoned. They shall be made available at least to the
parties to the proceeding without undue delay. Decisions on the
merits of a case shall be based only on evidence in respect of
which parties were offered the opportunity to be heard.
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.
5. It is understood that this Part does not create any
obligation to put in place a judicial system for the enforcement
of intellectual property rights distinct from that for the
enforcement of law in general, nor does it affect the capacity of
Members to enforce their law in general. Nothing in this Part
creates any obligation with respect to the distribution of
resources as between enforcement of intellectual property rights
and the enforcement of law in general.
Section 2
CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
Article 42
Fair and Equitable Procedures
Members shall make available to right holders <*> civil
judicial procedures concerning the enforcement of any intellectual
property right covered by this Agreement. Defendants shall have
the right to written notice which is timely and contains
sufficient detail, including the basis of the claims. Parties
shall be allowed to be represented by independent legal counsel,
and procedures shall not impose overly burdensome requirements
concerning mandatory personal appearances. All parties to such
procedures shall be duly entitled to substantiate their claims and
to present all relevant evidence. The procedure shall provide a
means to identify and protect confidential information, unless
this would be contrary to existing constitutional requirements.
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<*> For the purpose of this Part, the term "right holder"
includes federations and associations having legal standing to
assert such rights.
Article 43
Evidence
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.
Article 44
Injunctions
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.
2. Notwithstanding the other provisions of this Part and
provided that the provisions of Part II specifically addressing
use by governments, or by third parties authorized by a
government, without the authorization of the right holder are
complied with, Members may limit the remedies available against
such use to payment of remuneration in accordance with
subparagraph (h) of Article 31. In other cases, the remedies under
this Part shall apply or, where these remedies are inconsistent
with a Member's law, declaratory judgments and adequate
compensation shall be available.
Article 45
Damages
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.
Article 46
Other Remedies
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
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