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... Desiring
to reduce distortions and impediments to international trade, and
taking into account the need to promote effective and adequate
protection of intellectual property rights, and to ensure that
measures and procedures to enforce intellectual property rights do
not themselves become barriers to legitimate trade; ...
ARTICLE-8: Principles [go to this ARTICLE]
... 1. Members
may, in formulating or amending their laws and regulations, adopt
measures necessary to protect public health and nutrition, and to
promote the public interest in sectors of vital importance to their
socio-economic and technological development, provided that such
measures are consistent with the provisions of this Agreement.
...
... 1. Members
may, in formulating or amending their laws and regulations, adopt
measures necessary to protect public health and nutrition, and to
promote the public interest in sectors of vital importance to their
socio-economic and technological development, provided that such
measures are consistent with the provisions of this Agreement.
...
... 2. Appropriate
measures, provided that they are consistent with the provisions of
this Agreement, may be needed to prevent the abuse of intellectual
property rights by right holders or the resort to practices which
unreasonably restrain trade or adversely affect the international
transfer of technology.
...
ARTICLE-24: International Negotiations; Exceptions [go to this ARTICLE]
... 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. ...
... 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. ...
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. ...
... 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: ...
... 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.
...
... 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. ...
... 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. ...
... 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. ...
... 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. ...
... 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. ...
... 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.
...
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. ...
... 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-58: Ex Officio Action [go to this ARTICLE]
... (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. ...