Geography Reference
In-Depth Information
(viii) Indemnification of the importer and of the owner of goods
Where the importer, consignee and the owner of goods suffer injury through
the wrongful detention of goods, or through the detention of goods released
under Art 55, Art 56 empowers the relevant authorities to order the applicant to
pay those persons 'appropriate compensation'.
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(ix) Right of inspection and information
A particularly useful innovation effected by the border control provisions of the
TRIPS Agreement is the authority conferred by Art 57 empowering Members
to provide the competent authorities, where a positive determination has been
made on the merits of a case, with the authority to inform the right holder 'of
the names and addresses of the consignor, the importer and the consignee and
of the quantity of the goods in question'. This will obviously assist a right holder
in its further investigation of other persons involved in the counterfeiting or
piracy of goods.
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The right holder is inevitably in the best position to assist in the identification
of infringing goods. Article 57 permits Members to provide the competent
authorities with the authority to provide the right holder with 'sufficient
opportunity to have any goods detained by the customs authorities inspected in
order to substantiate the right holder's claims'. Similarly, the competent author-
ities are also to be provided with the authority to give the importer an equivalent
opportunity to have the goods inspected.
(x)
Ex officio
action
Article 58 envisages that Members may permit the competent authorities to act
upon their own initiative in suspending the release of goods where they have
prima facie evidence that an intellectual property right is being infringed. In
these circumstances the Article permits the competent authorities to 'seek from
the right holder any information that may assist them to exercise these powers'.
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Article 58(b) requires that both the importer and right holder shall be promptly
notified of the suspension and that where the importer has lodged an appeal
against the suspension with the competent authorities, the suspension shall be
subject to the conditions, mutatis mutandis, set out in Art 55.
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An exemption is provided by Art 58(c) to both public authorities and officials
'from liability to appropriate remedial measures where actions are taken or
intended in good faith'.
