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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
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.
Article 49
Administrative Procedures
To the extent that any civil remedy can be ordered as a result
of administrative procedures on the merits of a case, such
procedures shall conform to principles equivalent in substance to
those set forth in this Section.
Section 3
PROVISIONAL MEASURES
Article 50
1. The judicial authorities shall have the authority to order
prompt and effective provisional measures:
(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;
(b) to preserve relevant evidence in regard to the alleged
infringement.
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.
4. Where provisional measures have been adopted inaudita
altera parte, the parties affected shall be given notice, without
delay after the execution of the measures at the latest. 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
after the notification of the measures, whether these measures
shall be modified, revoked or confirmed.
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.
8. To the extent that any provisional measure can be ordered
as a result of administrative procedures, such procedures shall
conform to principles equivalent in substance to those set forth
in this Section.
Section 4
SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES <1>
Article 51
Suspension of Release by Customs Authorities
Members shall, in conformity with the provisions set out
below, adopt procedures <2> to enable a right holder, who has
valid grounds for suspecting that the importation of counterfeit
trademark or pirated copyright goods <3> 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.
--------------------------------
<1> Where a Member has dismantled substantially all controls
over movement of goods across its border with another Member with
which it forms part of a customs union, it shall not be required
to apply the provisions of this Section at that border.
<2> It is understood that there shall be no obligation to
apply such procedures to imports of goods put on the market in
another country by or with the consent of the right holder, or to
goods in transit.
<3> For the purposes of this Agreement:
(a) "counterfeit trademark goods" shall mean any goods,
including packaging, bearing without authorization a trademark
which is identical to the trademark validly registered in respect
of such goods, or which cannot be distinguished in its essential
aspects from such a trademark, and which thereby infringes the
rights of the owner of the trademark in question under the law of
the country of importation;
(b) "pirated copyright goods" shall mean any goods which are
copies made without the consent of the right holder or person duly
authorized by the right holder in the country of production and
which are made directly or indirectly from an article where the
making of that copy would have constituted an infringement of a
copyright or a related right under the law of the country of
importation.
Article 52
Application
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.
Article 53
Security or Equivalent Assurance
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 assuranse 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.
Article 54
Notice of Suspension
The importer and the applicant shall be promptly notified of
the suspension of the release of goods according to Article 51.
Article 55
Duration of Suspension
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.
Article 56
Indemnification of the Importer
and of the Owner of the Goods
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.
Article 57
Right of Inspection and Information
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 opportunity to have any such goods inspected. Where a
positive determination has been made on the merits of a case,
Members may provide the competent authorities the authority to
inform the right holder of the names and addresses of the
consignor, the importer and the consignee and of the quantity of
the goods in question.
Article 58
Ex Officio Action
Where Members require competent authorities to act upon their
own initiative and to suspend the release of goods in respect of
which they have acquired prima facie evidence that an intellectual
property right is being infringed:
(a) the competent authorities may at any time seek from the
right holder any information that may assist them to exercise
these powers;
(b) the importer and the right holder shall be promptly
notified of the suspension. Where the importer has lodged an
appeal against the suspension with the competent authorities, the
suspension shall be subject to the conditions, mutatis mutandis,
set out at Article 55;
(c) Members shall only exempt both public authorities and
officials from liability to appropriate remedial measures where
actions are taken or intended in good faith.
Article 59
Remedies
Without prejudice to other rights of action open to the right
holder and subject to the right of the defendant to seek review by
a judicial authority, competent authorities shall have the
authority to order the destruction or disposal of infringing goods
in accordance with the principles set out in Article 46. In regard
to counterfeit trademark goods, the authorities shall not allow
the re-exportation of the infringing goods in an unaltered state
or subject them to a different customs procedure, other than in
exceptional circumstances.
Article 60
De Minimis Imports
Members may exclude from the application of the above
provisions small quantities of goods of a non-commercial nature
contained in travellers' personal luggage or sent in small
consignments.
Section 5
CRIMINAL PROCEDURES
Article 61
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.
PART IV. ACQUISITION AND MAINTENANCE OF INTELLECTUAL
PROPERTY RIGHTS AND RELATED INTER-PARTES PROCEDURES
Article 62
1. Members may require, as a condition of the acquisition or
maintenance of the intellectual property rights provided for under
Sections 2 through 6 of Part II, compliance with reasonable
procedures and formalities. Such procedures and formalities shall
be consistent with the provisions of this Agreement.
2. Where the acquisition of an intellectual property right is
subject to the right being granted or registered, Members shall
ensure that the procedures for grant or registration, subject to
compliance with the substantive conditions for acquisition of the
right, permit the granting or registration of the right within a
reasonable period of time so as to avoid unwarranted curtailment
of the period of protection.
3. Article 4 of the Paris Convention (1967) shall apply
mutatis mutandis to service marks.
4. Procedures concerning the acquisition or maintenance of
intellectual property rights and, where a Member's law provides
for such procedures, administrative revocation and inter partes
procedures such as opposition, revocation and cancellation, shall
be governed by the general principles set out in paragraphs 2 and
3 of Article 41.
5. Final administrative decisions in any of the procedures
referred to under paragraph 4 shall be subject to review by a
judicial or quasi-judicial authority. However, there shall be no
obligation to provide an opportunity for such review of decisions
in cases of unsuccessful opposition or administrative revocation,
provided that the grounds for such procedures can be the subject
of invalidation procedures.
PART V. DISPUTE PREVENTION AND SETTLEMENT
Article 63
Transparency
1. Laws and regulations, and final judicial decisions and
administrative rulings of general application, made effective by a
Member pertaining to the subject matter of this Agreement (the
availability, scope, acquisition, enforcement and prevention of
the abuse of intellectual property rights) shall be published, or
where such publication is not practicable made publicly available,
in a national language, in such a manner as to enable governments
and right holders to become acquainted with them. Agreements
concerning the subject matter of this Agreement which are in force
between the government or a governmental agency of a Member and
the government or a governmental agency of another Member shall
also be published.
2. Members shall notify the laws and regulations referred to
in paragraph 1 to the Council for TRIPS in order to assist that
Council in its review of the operation of this Agreement. The
Council shall attempt to minimize the burden on Members in
carrying out this obligation and may decide to waive the
obligation to notify such laws and regulations directly to the
Council if consultations with WIPO on the establishment of a
common register containing these laws and regulations are
successful. The Council shall also consider in this connection any
action required regarding notifications pursuant to the
obligations under this Agreement stemming from the provisions of
Article 6ter of the Paris Convention (1967).
3. Each Member shall be prepared to supply, in response to a
written request from another Member, information of the sort
referred to in paragraph 1. A Member, having reason to believe
that a specific judicial decision or administrative ruling or
bilateral agreement in the area of intellectual property rights
affects its rights under this Agreement, may also request in
writing to be given access to or be informed in sufficient detail
of such specific judicial decisions or administrative rulings or
bilateral agreements.
4. Nothing in paragraphs 1, 2 and 3 shall require Members to
disclose confidential information which would impede law
enforcement or otherwise be contrary to the public interest or
would prejudice the legitimate commercial interests of particular
enterprises, public or private.
Article 64
Dispute Settlement
1. The provisions of Articles XXII and XXIII of GATT 1994 as
elaborated and applied by the Dispute Settlement Understanding
shall apply to consultations and the settlement of disputes under
this Agreement except as otherwise specifically provided herein.
2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994
shall not apply to the settlement of disputes under this Agreement
for a period of five years from the date of entry into force of
the WTO Agreement.
3. During the time period referred to in paragraph 2, the
Council for TRIPS shall examine the scope and modalities for
complaints of the type provided for under subparagraphs 1(b) and
1(c) of Article XXIII of GATT 1994 made pursuant to this
Agreement, and submit its recommendations to the Ministerial
Conference for approval. Any decision of the Ministerial
Conference to approve such recommendations or to extend the period
in paragraph 2 shall be made only by consensus, and approved
recommendations shall be effective for all Members without further
formal acceptance process.
PART VI. TRANSITIONAL ARRANGEMENTS
Article 65
Transitional Arrangements
1. Subject to the provisions of paragraphs 2, 3 and 4, no
Member shall be obliged to apply the provisions of this Agreement
before the expiry of a general period of one year following the
date of entry into force of the WTO Agreement.
2. A developing country Member is entitled to delay for a
further period of four years the date of application, as defined
in paragraph 1, of the provisions of this Agreement other than
Articles 3, 4 and 5.
3. Any other Member which is in the process of transformation
from a centrally-planned into a market, free-enterprise economy
and which is undertaking structural reform of its intellectual
property system and facing special problems in the preparation and
implementation of intellectual property laws and regulations, may
also benefit from a period of delay as foreseen in paragraph 2.
4. To the extent that a developing country Member is obliged
by this Agreement to extend product patent protection to areas of
technology not so protectable in its territory on the general date
of application of this Agreement for that Member, as defined in
paragraph 2, it may delay the application of the provisions on
product patents of Section 5 of Part II to such areas of
technology for an additional period of five years.
5. A Member availing itself of a transitional period under
paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws,
regulations and practice made during that period do not result in
a lesser degree of consistency with the provisions of this
Agreement.
Article 66
Least-Developed Country Members
1. In view of the special needs and requirements of
least-developed country Members, their economic, financial and
administrative constraints, and their need for flexibility to
create a viable technological base, such Members shall not be
require apply the provisions of this Agreement, other than
Articles 3, 4 and 5, for a period of 10 years from the date of
application as defined under paragraph 1 of Article 65. The
Council for TRIPS shall, upon duly motivated request by a
least-developed country Member, accord extensions of this period.
2. Developed country Members shall provide incentives to
enterprises and institutions in their territories for the purpose
of promoting and encouraging technology transfer to
least-developed country Members in order to enable them to create
a sound viable technological base.
Article 67
Technical Cooperation
In order to facilitate the implementation of this Agreement,
developed country Members shall provide, on request and on
mutually agreed terms and conditions, technical and financial
cooperation in favour of developing and least-developed country
Members. Such cooperation shall include assistance in the
preparation of laws and regulations on the protection and
enforcement of intellectual property rights as well as on the
prevention of their abuse, and shall include support regarding the
establishment or reinforcement of domestic offices and agencies
relevant to these matters, including the training of personnel.
PART VII. INSTITUTIONAL ARRANGEMENTS: FINAL PROVISIONS
Article 68
Council for Trade-Related Aspects
of Intellectual Property Rights
The Council for TRIPS shall monitor the operation of this
Agreement and, in particular, Members' compliance with their
obligations hereunder, and shall afford Members the opportunity of
consulting on matters relating to the trade-related aspects of
intellectual property rights. It shall carry out such other
responsibilities as assigned to it by the Members, and it shall,
in particular, provide any assistance requested by them in the
context of dispute settlement procedures. In carrying out its
functions, the Council for TRIPS may consult with and seek
information from any source it deems appropriate. In consultation
with WIPO, the Council shall seek to establish, within one year of
its first meeting, appropriate arrangements for cooperation with
bodies of that Organization.
Article 69
International Cooperation
Members agree to cooperate with each other with a view to
eliminating international trade in goods infringing intellectual
property rights. For this purpose, they shall establish and notify
contact points in their administrations and be ready to exchange
information on trade in infringing goods. They shall, in
particular, promote the exchange of information and cooperation
between customs authorities with regard to trade in counterfeit
trademark goods and pirated copyright goods.
Article 70
Protection of Existing Subject Matter
1. This Agreement does not give rise to obligations in respect
of acts which occurred before the date of application of the
Agreement for the Member in question.
2. Except as otherwise provided for in this Agreement, this
Agreement gives rise to obligations in respect of all subject
matter existing at the date of application of this Agreement for
the Member in question, and which is protected in that Member on
the said date, or which meets or comes subsequently to meet the
criteria for protection under the terms of this Agreement. In
respect of this paragraph and paragraphs 3 and 4, copyright
obligations with respect to existing works shall be solely
determined under Article 18 of the Berne Convention (1971), and
obligations with respect to the rights of producers of phonograms
and performers in existing phonograms shall be determined solely
under Article 18 of the Berne Convention (1971) as made applicable
under paragraph 6 of Article 14 of this Agreement.
3. There shall be no obligation to restore protection to
subject matter which on the date of application of this Agreement
for the Member in question has fallen into the public domain.
4. In respect of any acts in respect of specific objects
embodying protected subject matter which become infringing under
the terms of legislation in conformity with this Agreement, and
which were commenced, or in respect of which a significant
investment was made, before the date of acceptance of the WTO
Agreement by that Member, any Member may provide for a limitation
of the remedies available to the right holder as to the continued
performance of such acts after the date of application of this
Agreement for that Member. In such cases the Member shall,
however, at least provide for the payment of equitable
remuneration.
5. A Member is not obliged to apply the provisions of
Article 11 and of paragraph 4 of Article 14 with respect to
originals or copies purchased prior to the date of application of
this Agreement for that Member.
6. Members shall not be required to apply Article 31, or the
requirement in paragraph 1 of Article 27 that patent rights shall
be enjoyable without discrimination as to the field of technology,
to use without the authorization of the right holder where
authorization for such use was granted by the government before
the date this Agreement became known.
7. In the case of intellectual property rights for which
protection is conditional upon registration, applications for
protection which are pending on the date of application of this
Agreement for the Member in question shall be permitted to be
amended to claim any enhanced protection provided under the
provisions of this Agreement. Such amendments shall not include
new matter.
8. Where a Member does not make available as of the date of
entry into force of the WTO Agreement patent protection for
pharmaceutical and agricultural chemical products commensurate
with its obligations under Article 27, that Member shall:
(a) notwithstanding the provisions of Part VI, provide as from
the date of entry into force of the WTO Agreement a means by which
applications for patents for such inventions can be filed;
(b) apply to these applications, as of the date of application
of this Agreement, the criteria for patentability as laid down in
this Agreement as if those criteria were being applied on the date
of filing in that Member or, where priority is available and
claimed, the priority date of the application; and
(c) provide patent protection in accordance with this
Agreement as from the grant of the patent and for the remainder of
the patent term, counted from the filing date in accordance with
Article 33 of this Agreement, for those of these applications that
meet the criteria for protection referred to in subparagraph (b).
9. Where a product is the subject of a patent application in a
Member in accordance with paragraph 8(a), exclusive marketing
rights shall be granted, notwithstanding the provisions of
Part VI, for a period of five years after obtaining marketing
approval in that Member or until a product patent is granted or
rejected in that Member, whichever period is shorter, provided
that, subsequent to the entry into force of the WTO Agreement, a
patent application has been filed and a patent granted for that
product in another Member and marketing approval obtained in such
other Member.
Article 71
Review and Amendment
1. The Council for TRIPS shall review the implementation of
this Agreement after the expiration of the transitional period
referred to in paragraph 2 of Article 65. The Council shall,
having regard to the experience gained in its implementation
review it two years after that date, and at identical intervals
thereafter. The Council may also undertake reviews in the light of
any relevant new developments which might warrant modification or
amendment of this Agreement.
2. Amendments merely serving the purpose of adjusting to
higher levels of protection of intellectual property rights
achieved, and in force, in other multilateral agreements and
accepted under those agreements by all Members of the WTO may be
referred to the Ministerial Conference for action in accordance
with paragraph 6 of Article X of the WTO Agreement on the basis of
a consensus proposal from the Council for TRIPS.
Article 72
Reservations
Reservations may not be entered in respect of any of the
provisions of this Agreement without the consent of the other
Members.
Article 73
Security Exceptions
Nothing in this Agreement shall be construed:
(a) to require a Member to furnish any information the
disclosure of which it considers contrary to its essential
security interests; or
(b) to prevent a Member from taking any action which it
considers necessary for the protection of its essential security
interests;
(i) relating to fissionable materials or the materials
from which they are derived;
(ii) relating to the traffic in arms, ammunition and
implements of war and to such traffic in other goods and
materials as is carried on directly or indirectly for the
purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in
international relations; or
(c) to prevent a Member from taking any action in pursuance of
its obligations under the United Nations Charter for the
maintenance of international peace and security.
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