Common use of Enforcement of Intellectual Property Rights Clause in Contracts

Enforcement of Intellectual Property Rights. General Obligations 1. Each Party understands that procedures and remedies required under this Article for enforcement of intellectual property rights are established in accordance with: (a) the principles of due process that each Party recognizes; and (b) the foundations of its own legal system. 2. This Article does not create any obligation: (a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general; or (b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general. The Parties understand that the decisions that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 3. Each Party shall provide that final judicial decisions or administrative rulings of general applicability pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based. Each Party shall provide that such decisions or rulings shall be published,16 or where such publication is not practicable, otherwise made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 4. Each Party shall publicize information that it may collect on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal system, including any statistical information. 5. In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide that: (a) the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner, shall, in the absence of proof to the contrary, be presumed to be the designated right holder in such work, performance, or phonogram; and (b) it shall be presumed, in the absence of proof to the contrary, that the copyright or related right subsists in such subject matter.

Enforcement of Intellectual Property Rights. General Obligations 1. Each Party understands that procedures and remedies required under this Article for enforcement of intellectual property rights are established in accordance with: (a) the principles of due process that each Party recognizes; and (b) the foundations of its own legal system. 2. This Article does not create any obligation: (a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general; or (b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general. The Parties understand that the decisions that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 3. Each Party shall provide that final judicial decisions or and administrative rulings of general applicability application pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis on which the decisions and or rulings are based. Each Party shall also provide that such decisions or rulings shall be published,16 or published12 or, where such publication is not practicable, otherwise made publicly availableavailable to the public, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 42. Each Party shall publicize information that it may collect on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal systemsystems, including any statistical informationinformation that the Party may collect for such purposes. 53. The Parties understand that a decision that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 4. In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide for a presumption that: (a) , in the absence of proof to the contrary, the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual mannermanner is the designated 12 A Party may satisfy the requirement for publication by making the decision or ruling available to the public on the Internet. right holder in such work, shallperformance, or phonogram. Each Party shall also provide for a presumption that, in the absence of proof to the contrary, be presumed to be the designated right holder in such work, performance, or phonogram; and (b) it shall be presumed, in the absence of proof to the contrary, that the copyright or related right subsists in such subject matter.

Enforcement of Intellectual Property Rights. General Obligations 1. Each Party understands that procedures and remedies required under this Article for enforcement of intellectual property rights are established in accordance with: (a) the principles of due process that each Party recognizes; and (b) the foundations of its own legal system. 2. This Article does not create any obligation: (a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general; or (b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general. The Parties understand that the decisions that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 3. Each Party shall provide that final judicial decisions or and administrative rulings of general applicability application pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis on which the decisions and or rulings are based. Each Party shall also provide that such decisions or rulings shall be published,16 or published (12) or, where such publication is not practicable, otherwise made publicly availableavailable to the public, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 42. Each Party shall publicize information that it may collect on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal systemsystems, including any statistical informationinformation that the Party may collect for such purposes. 53. The Parties understand that a decision that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 4. In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide for a presumption that: (a) , in the absence of proof to the contrary, the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner, shall, in the absence of proof to the contrary, be presumed to be manner is the designated right holder in such work, performance, or phonogram; and (b) it . Each Party shall be presumedalso provide for a presumption that, in the absence of proof to the contrary, that the copyright or related right subsists in such subject matter. Civil and Administrative Procedures and Remedies 5. Each Party shall make available to right holders (13) civil judicial procedures concerning the enforcement of any intellectual property right. 6. Each Party shall provide that: (a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder: (i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; and (ii) at least in the case of copyright or related rights infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement and that are not taken into account in computing the amount of the damages referred to in clause (i); and (b) in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed-on good or service, measured by the suggested retail price or other legitimate measure of value submitted by the right holder. 7. In civil judicial proceedings, each Party shall, at least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, establish or maintain pre- established damages, which shall be available on the election of the right holder. Pre-established damages shall be in an amount sufficient to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement. In civil judicial proceedings concerning patent infringement, each Party shall provide that its judicial authorities shall have the authority to increase damages to an amount that is up to three times the amount of the injury found or assessed. 8. Each Party shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or related rights infringement and trademark infringement, that the prevailing party shall be awarded payment of court costs or fees and reasonable attorney's fees by the losing party. Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment of reasonable attorney's fees by the losing party. 9. In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure of suspected infringing goods, any related materials and implements, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement. 10. Each Party shall provide that: (a) in civil judicial proceedings, at the right holder's request, goods that have been found to be pirated or counterfeit shall be destroyed, except in exceptional circumstances; (b) its judicial authorities shall have the authority to order that materials and implements that have been used in the manufacture or creation of the pirated or counterfeit goods be, without compensation of any sort, promptly destroyed or, in exceptional circumstances, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements; and (c) in regard to counterfeit trademarked goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce. 11. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide any information that the infringer possesses regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution, and to provide this information to the right holder. 12. Each Party shall provide that its judicial authorities shall have the authority to: (a) fine or imprison, in appropriate cases, a party to a litigation who fails to abide by valid orders issued by such authorities; and (b) impose sanctions on parties to a litigation, their counsel, experts, or other persons subject to the court's jurisdiction, for violation of judicial orders regarding the protection of confidential information produced or exchanged in a proceeding. 13. To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that such procedures conform to principles equivalent in substance to those set out in this Chapter. 14. In civil judicial proceedings concerning the acts described in paragraphs 7 and 8 of Article 15.4, each Party shall provide that its judicial authorities shall have the authority to order or award at least: (a) provisional measures, including seizure of devices and products suspected of being involved in the prohibited activity; (b) the opportunity for the right holder to elect between actual damages it suffered (plus any profits attributable to the prohibited activity not taken into account in computing those damages) or pre-established damages; (c) payment to the prevailing right holder at the conclusion of civil judicial proceedings of court costs and fees, and reasonable attorney's fees, by the party engaged in the prohibited conduct; and (d) destruction of devices and products found to be involved in the prohibited activity. Neither Party may make damages available against a nonprofit library, archive, educational institution, or public noncommercial broadcasting entity that sustains the burden of proving that it was not aware and had no reason to believe that its acts constituted a prohibited activity. 15. In civil judicial proceedings concerning the enforcement of intellectual property rights, each Party shall provide that its judicial authorities shall have the authority to order a party to desist from an infringement, in order, inter alia, to prevent, immediately after they clear customs, the entry into the channels of commerce in the jurisdiction of those authorities of imported goods that involve the infringement of an intellectual property right, or to prevent their exportation. 16. In the event that a Party's judicial or other authorities appoint technical or other experts in civil proceedings concerning the enforcement of intellectual property rights and require that the parties to the litigation bear the costs of such experts, the Party should seek to ensure that such costs are closely related, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings. Provisional Measures 17. Parties shall act on requests for relief inaudita altera parte expeditiously and shall, except in exceptional cases, generally execute such requests within ten days. 18. Each Party shall provide that its judicial authorities have the authority to require the plaintiff to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the plaintiff's right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures. 19. In proceedings concerning the grant of provisional measures in relation to enforcement of a patent, each Party shall provide for a rebuttable presumption that the patent is valid. Special Requirements Related to Border Measures 20. Each Party shall provide that any right holder initiating procedures for its competent authorities to suspend release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods, (15) into free circulation is 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 sufficient information that may reasonably be expected to be within the right holder's knowledge to make the suspected goods reasonably recognizable by its competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to these procedures. Each Party shall provide that the application to suspend the release of goods shall remain in force for a period of not less than one year from the date of application, or the period that the good is protected by copyright or the relevant trademark registration, whichever is shorter. 21. Each Party shall provide that its competent authorities shall have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. Each Party may provide that such security may be in the form of a bond conditioned to hold the importer or owner of the imported merchandise harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good. 22. Where its competent authorities have made a determination that goods are counterfeit or pirated, a Party shall grant its 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. 23. Each Party shall provide that its competent authorities may initiate border measures ex officio, with respect to imported, exported, or in-transit merchandise, (16) or merchandise in free trade zones, suspected of being counterfeit or confusingly similar trademark goods, or pirated copyright goods, without the need for a formal complaint from a private party or right holder. 24. Each Party shall provide that goods that have been determined to be pirated or counterfeit by its competent authorities shall be destroyed, except in exceptional circumstances. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of the goods into the channels of commerce. In no event shall the competent authorities be authorized, except in exceptional circumstances, to permit the exportation of counterfeit or pirated goods or to permit such goods to be subject to other customs procedures.

Enforcement of Intellectual Property Rights. General Obligations 1. Each Party understands that procedures and remedies required under this Article for enforcement of intellectual property rights are established in accordance with: (a) the principles of due process that each Party recognizes; and (b) the foundations of its own legal system. 2. This Article does not create any obligation: (a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general; or (b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general. The Parties understand that the decisions that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 3. Each Party shall provide that final judicial decisions or administrative rulings of general applicability pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based. Each Party shall provide that such decisions or rulings shall be published,16 published,17 or where such publication is not practicable, otherwise made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 17 A Party may satisfy the requirement for publication by making the document available to the public on the Internet. 4. Each Party shall publicize information that it may collect on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal system, including any statistical information. 5. In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide that: (a) the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner, shall, in the absence of proof to the contrary, be presumed to be the designated right holder in such work, performance, or phonogram; and (b) it shall be presumed, in the absence of proof to the contrary, that the copyright or related right subsists in such subject matter.

Enforcement of Intellectual Property Rights. General Obligations 1. Each Party understands that procedures and remedies required under this Article for enforcement of intellectual property rights are established in accordance with: (a) the principles of due process that each Party recognizes; and (b) the foundations of its own legal system. 2. This Article does not create any obligation: (a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general; or (b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general. The Parties understand that the decisions that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter. 3. Each Party shall provide that final judicial decisions or administrative rulings of general applicability pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based. Each Party shall provide that such decisions or rulings shall be published,16 published,19 or where such publication is not practicable, otherwise made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 4. Each Party shall publicize information that it may collect on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal system, including any statistical information. 5. In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide that: (a) the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner, shall, in the absence of proof to the contrary, be presumed to be the designated right holder in such work, performance, or phonogram; and 19 A Party may satisfy the requirement for publication by making the document available to the public on the Internet. (b) it shall be presumed, in the absence of proof to the contrary, that the copyright or related right subsists in such subject matter.