Geography Reference
In-Depth Information
2. Measures, procedures and remedies
(a) General obligation
Article 3(1) provides that Member States shall provide for the measures,
procedures and remedies necessary to ensure the enforcement of the IPRs
covered by this Directive. Those measures, procedures and remedies shall be fair
and equitable and shall not be unnecessarily complicated or costly, or entail
unreasonable time limits or unwarranted delays.
7.18
This provision replicates the terms of TRIPS Art 41.2, which provides that
'[p]rocedures 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.'
7.19
The high cost of IPR enforcement was considered by the fifth session of
WIPO's Advisory Committee on Enforcement (ACE), held in Geneva from 2
to 4 November 2009, taking into consideration Recommendation 45 of the
WIPO Development Agenda. Recommendation 45 is that IPR enforcement
should be approached with the objectives of the TRIPS Agreement in mind, ie
that
7.20
the protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological knowledge
and in a manner conducive to social and economic welfare, and to a balance of rights
and obligations,
in the context of broader societal interests and especially development-oriented
concerns. Concern was expressed by participants about the often costly eviden-
tial burden in IPR cases, high attorneys' fees and the possibility of meeting
some of these expenses through the greater use of presumptions or litigation on
a contingency basis.
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Article 3(2) requires that those measures, procedures and remedies shall also be
effective, proportionate and dissuasive and 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.
7.21
14
See 'IP Litigation Costs Special Edition'
WIPO Magazine
, February 2010, http://www.wipo.int/wipo_
magazine/en/pdf/2010/wipo_pub_121_2010_01.pdf.
