Geography Reference
In-Depth Information
body.
66
Finally, the disposal in Art 46 is qualified by the principle that the
disposal shall be 'so as to' avoid any harm to the right holder. This is phrased in
terms of purpose, not result.
(viii) Right of information
A particularly useful innovation is the authority which is conferred by Art 47 'to
order the infringer to inform the right holder of the identity of third persons
involved in the production and distribution of the infringing goods or services
and of their channels of distribution'. Article 47 counsels the exercise of this
power where it is not 'out of all proportion to the seriousness of the infringe-
ment'. No guidance is provided as to how seriousness is to be evaluated nor
whether the touchstone of seriousness is damage to the party seeking the
information, or whether from the perspective of the public interest in suppress-
ing wrongful acts. For example, the large-scale counterfeiting of low-quality
trade marked goods may be of minimal concern to a trader producing high-
quality products which are not likely to be confused with the counterfeiter's
products. However, there may be a public interest in the protection of con-
sumers from the poorer-quality goods. There may also be a more fundamental
public interest in inculcating an ethos of commercial morality.
2.141
2.142
A limiting condition in Art 47 is that information will not be provided if it is
out of proportion to the seriousness of the infringement, although no guidance
is provided as to the test of proportionality.
2.143
TRIPS Art 47 provide that the information which may be provided to a right
holder is 'the identity of third persons involved in the production and distribu-
tion of the infringing goods or services and of their channels of distribution'.
Article 8(1) of the EU's Enforcement Directive is even more broadly drawn.
Although it commences with the qualification of justification and proportion-
ality, it provides that the competent judicial authorities may order that infor-
mation on the origin and distribution networks of the goods or services which
infringe an intellectual property right be provided not only by the infringer, but
also by any other person who:
(a)
was found in possession of the infringing goods on a commercial scale,
(b)
was found to be using the infringing services on a commercial scale,
(c)
was found to be providing on a commercial scale services used in infring-
ing activities, or
(d)
was indicated by the person referred to in point (a), (b) or (c) as being
66
Ibid, para 7.280.
