Geography Reference
In-Depth Information
reasonably found to have suffered, are available at the right holder's discretion at
least as an alternative to any lost profits that can be proved'.
59
(v) Knowledge
Article 45.1 provides for compensation orders against infringers 'who know-
ingly, or with reasonable grounds to know, engaged in infringing activity'. A
general standard of reasonableness is usually applied to the question of guilty
knowledge. The courts have taken the view, for example, that a person who
copies a new product ought to have inquired whether it was patented.
60
Conventionally, the existence of relevant knowledge is sought to be established
by the delivery of a cease and desist letter to an infringer. A continuation of
infringing activity after receipt of such a letter is evidence of guilty knowledge.
2.132
2.133
Article 45.2 permits Members to authorise the judicial authorities 'to order the
recovery of profits and/or payment of pre-established damages even where the
infringer did not knowingly, or with reasonable grounds to know, engage in
infringing activity'. This sort of remedy is usually ordered in cases of unfair
competition or passing off.
(vi) Costs
Article 45.2 permits judicial authorities 'to order the infringer to pay the rights
holder expenses, which may include appropriate attorney's fees'.
2.134
(vii) Other remedies
Article 46, under the justification of creating an effective deterrent to infringe-
ment, allows Members to empower the judicial authorities 'to order that the
goods which they have found to be infringing be, without compensation of any
sort, disposed of outside the channels of commerce in such a manner as to avoid
any harm caused to the rights holder'. Alternatively, where existing constitu-
tional requirements so permit, the infringing goods may be destroyed. A
constitutional obstacle which exists in some jurisdictions is the obligation to
provide 'just terms' for any goods which are compulsorily acquired.
2.135
2.136
A supplementary power which is conferred upon the judicial authorities is the
power 'to order that materials and implements, the predominant use of which
has been in the creation of the infringing goods' be similarly disposed of outside
the channels of commerce in such a manner as 'to minimise the risks of further
infringements'.
59
Ibid, at 5.
60
Lancer Boss Ltd v Henley Fork lift Co Ltd
[1975] RPC 301.
