Article 1715: Specific Procedural and Remedial Aspects of Civil
and Administrative Procedures
1. Each Party shall make available to right holders civil judicial
procedures for the enforcement of any intellectual property right
provided in this Chapter. Each Party shall provide that:
(a) defendants have the right to written notice that is timely
and contains sufficient detail, including the basis of the claims;
(b) parties in a proceeding are allowed to be represented by independent
legal counsel;
(c) the procedures do not include imposition of overly burdensome
requirements concerning mandatory personal appearances;
(d) all parties in a proceeding are duly entitled to substantiate
their claims and to present relevant evidence; and
(e) the procedures include a means to identify and protect confidential
information.
2. Each Party shall provide that its judicial authorities shall
have the authority:
(a) where a party in a proceeding has presented reasonably available
evidence sufficient to support its claims and has specified evidence
relevant to the substantiation of its claims that is within the
control of the opposing party, to order the opposing party to
produce such evidence, subject in appropriate cases to conditions
that ensure the protection of confidential information;
(b) where a party in a proceeding voluntarily and without good
reason refuses access to, or otherwise does not provide relevant
evidence under that party's control within a reasonable period,
or significantly impedes a proceeding relating to an enforcement
action, to make preliminary and final determinations, affirmative
or negative, on the basis of the evidence presented, including
the complaint or the allegation presented by the party adversely
affected by the denial of access to evidence, subject to providing
the parties an opportunity to be heard on the allegations or evidence;
(c) to order a party in a proceeding to desist from an infringement,
including to prevent the entry into the channels of commerce in
their jurisdiction of imported goods that involve the infringement
of an intellectual property right, which order shall be enforceable
at least immediately after customs clearance of such goods;
(d) to order the infringer of an intellectual property right to
pay the right holder damages adequate to compensate for the injury
the right holder has suffered because of the infringement where
the infringer knew or had reasonable grounds to know that it was
engaged in an infringing activity;
(e) to order an infringer of an intellectual property right to
pay the right holder's expenses, which may include appropriate
attorney's fees; and
(f) to order a party in a proceeding at whose request measures
were taken and who has abused enforcement procedures to provide
adequate compensation to any party wrongfully enjoined or restrained
in the proceeding for the injury suffered because of such abuse
and to pay that party's expenses, which may include appropriate
attorney's fees.
3. With respect to the authority referred to in subparagraph 2(c),
no Party shall be obliged to provide such authority in respect
of protected subject matter that is acquired or ordered by a person
before that person knew or had reasonable grounds to know that
dealing in that subject matter would entail the infringement of
an intellectual property right.
4. With respect to the authority referred to in subparagraph 2(d),
a Party may, at least with respect to copyrighted works and sound
recordings, authorize the judicial authorities to order recovery
of profits or payment of pre-established damages, or both, even
where the infringer did not know or had no reasonable grounds
to know that it was engaged in an infringing activity.
5. Each Party shall provide that, in order to create an effective
deterrent to infringement, its judicial authorities shall have
the authority to order that:
(a) 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 injury caused to the right holder or,
unless this would be contrary to existing constitutional requirements,
destroyed; and
(b) 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 whether to issue such an order, judicial authorities
shall take into account the need for proportionality between the
seriousness of the infringement and the remedies ordered as well
as the interests of other persons. In regard to counterfeit 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.
6. In respect of the administration of any law pertaining to the
protection or enforcement of intellectual property rights, each
Party 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 such laws.
7. Notwithstanding the other provisions of Articles 1714 through
1718, where a Party is sued with respect to an infringement of
an intellectual property right as a result of its use of that
right or use on its behalf, that Party may limit the remedies
available against it to the payment to the right holder of adequate
remuneration in the circumstances of each case, taking into account
the economic value of the use.
8. Each Party shall provide that, where a 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 out in this Article.
Continue on to Chapter Seventeen, Article 1716: Provisional Measures