Geography Reference
In-Depth Information
mark-infringing goods, other copyright-infringing goods, and patent-
infringing goods. Thus China's border measures provided a level of protection
higher than the minimum standard required by the TRIPS Agreement.
The obligation in the first sentence of Art 59 of TRIPS was that competent
authorities 'shall have the authority' to order certain types of remedies with
respect to infringing goods. The Panel noted that the word 'authority' can be
defined as 'power or right to enforce obedience; moral or legal supremacy; right
to command or give a final decision'. The obligation is to 'have' authority not an
obligation to 'exercise' authority.
98
The Panel concluded that the obligation that
competent authorities 'shall have the authority' to make certain orders 'is not an
obligation that competent authorities shall exercise that authority in a particular
way, unless otherwise specified'.
99
The Panel recognised that the obligation that
competent authorities 'shall have the authority' to order certain types of
remedies left Members free to provide that competent authorities may have
authority to order other remedies not required by Art 59 to be within their
authority under the Article. The terms of Art 59 did not indicate that the
authority to order the specified types of remedies must be exclusive.
7.188
Article 59 requires authority to order 'destruction or disposal'. The Panel
observed that it was not disputed that where competent authorities have
authority in any given situation within the scope of Art 59 to order either
destruction or disposal (in accordance with applicable principles), this was
sufficient to implement the obligation in the first sentence of Art 59. Therefore,
a condition that precluded the authority from ordering one remedy (eg destruc-
tion) could be consistent with Art 59 as long as competent authorities still had
the authority to order the other remedy (in this example, disposal).
100
7.189
The 'authority' required by Art 59 concerns two types of remedies, namely
'destruction or disposal'. The meaning of 'destruction' did not require definition
by the Panel as its meaning was considered uncontroversial.
7.190
1. Destruction of goods and initiation of proceedings
(a) Destruction of goods suspected of infringing an IPR
Article 23(1) provides that goods suspected of infringing an IPR may be
destroyed under customs control, without there being any need to determine
7.191
98
Ibid, at para 7.236.
99
Ibid, at para 7.238.
100
Ibid, at para 7.246.
