Geography Reference
In-Depth Information
analysis of the implementation of the Civil Enforcement Directive an EC Staff
Working Document points out that only in a few Member States does the law
provides for a definition of this term.
15
In those states it observed that the
definition is often given by using the notion of 'commercial purpose' and
defining it as 'purposes aimed at direct or indirect economic or commercial gain'
or similar.
16
The interpretation of the expression 'commercial scale' within Art 61 of the
TRIPS Agreement was raised in
China - Measures Affecting the Protection and
Enforcement of Intellectual Property Rights
,
17
which arose on a complaint by the
US about the threshold number of infringements which were required before
the criminal sanctions concerning IP crimes under China's criminal law were
activated. The US submitted that the concept of 'commercial scale' extended
both to those who engage in commercial activities in order to make a 'financial
return' in the marketplace, and who are, by definition, therefore operating on a
commercial scale, as well as to those whose actions, regardless of motive or
purpose, are of a sufficient extent or magnitude to qualify as 'commercial scale'
in the relevant market.
18
It observed that whether a particular counterfeiting or
piracy activity is 'on a commercial scale' would depend on the facts and
circumstances surrounding that activity, such as the market for the infringed
goods, the object of the infringement, the value of the infringed goods, the
means of producing the infringed goods, and the impact of the infringement on
the right holder.
19
It conceded that some activity would be so trivial or of a
de
minimis
character so as
not
to be 'on a commercial scale' in some circumstances,
'such as occasional infringing acts of a purely personal nature carried out by
consumers, or the sale of trivial volumes for trivial amounts unless there are
circumstances indicating to the contrary'.
20
7.26
The Dispute Panel pointed out that the ordinary meaning of the word 'scale'
includes both the concept of quantity, in terms of magnitude or extent, as well as
the concept of relative size. For the purposes of Art 61 the relevant size was
indicated by the word 'commercial'. The Panel adopted the following dictionary
definition of 'commercial': 'Engaged in commerce; of, pertaining to, or bearing
on commerce' in the sense of buying and selling, especially on a large scale.
21
7.27
15
Eg Germany, Czech Republic, Romania, Slovenia.
16
EC, Commission Staff Working Document, Analysis of the application of Directive 2004/48/EC of the
European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights in the
Member States, SEC(2010) 1589 final, Brussels, 22.12.2010, at 9.
17
Report of the Panel
WT/DS362/R, 26 January 2009.
18
Ibid, at para 7.480.
19
Ibid.
20
Ibid.
21
Ibid, at para 7.535.
