Geography Reference
In-Depth Information
2.102
In amplification of the latter qualifications, Art 41.2 requires that '[p]rocedures
concerning the enforcement of intellectual property rights shall be fair and
equitable'. More specifically, the paragraph requires that procedures 'shall not be
unnecessarily complicated or costly, or entail unreasonable time-limits or
unwarranted delays'. Article 41.3 requires that '[d]ecisions on the merits of a
case shall preferably be in writing and reasoned' and that they 'shall be made
available at least to the parties to the proceeding without undue delay'. Due
process is also required by the paragraph which insists that '[d]ecisions on the
merits of a case shall be based only on evidence in respect of which parties were
offered the opportunity to be heard'.
An opportunity for judicial review of final administrative decisions and 'the
legal aspects of initial judicial decisions on the merits of a case' is required by Art
41.4. However, para 4 provides that there is 'no obligation to provide an
opportunity for review of acquittals in criminal cases'.
2.103
(b) Civil procedures
In relation to the intellectual property rights covered by the TRIPS Agreement,
Art 42 requires Members to make available civil judicial procedures for the
enforcement of those rights to rights holders, including federations and associa-
tions having legal standing to assert such rights. This will be important for
those GIs which are held or supervised by consortia.
2.104
Article 42 requires that these procedures are fair and equitable in that defend-
ants are entitled to 'written notice which is timely and contains sufficient detail,
including the basis of the claims'.
2.105
Representation by independent legal counsel is also required by Art 42. All
parties to such procedures 'shall be duly entitled to substantiate their claim and
to present all relevant evidence', without the procedures imposing 'overly
burdensome requirements concerning mandatory personal appearances'.
2.106
Finally, Art 42 provides that the procedure 'shall provide a means to identify and
protect confidential information, unless this would be contrary to existing
constitutional requirements'.
2.107
(i) Discovery and interrogatories
As is conventional in civil proceedings in most jurisdictions, Art 43.1 provides
for procedures in the nature of discovery and the administration of interrogato-
ries, once a party has 'presented reasonably available evidence to support its
claims and has specified evidence relevant to substantiation of its claims which
lies in the control of the opposing party'. A concern which is particularly acute
2.108
 
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