Geography Reference
In-Depth Information
goods'.
70
The Panel noted that the IPR infringements covered by the Chinese
Customs Regulations included not only counterfeit trade mark goods and
pirated copyright goods, but certain other infringements such as other trade
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.
2.175
The obligation in the first sentence of Art 59 of the TRIPS Agreement is 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.
71
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'.
72
The Panel recog-
nised 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,
which requires authority to order 'destruction or disposal'.
2.176
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 to order one remedy (eg destruction)
could be consistent with Art 59 as long as competent authorities still had the
authority to order the other remedy (in this example, disposal).
73
2.177
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 is uncontroversial. As for 'disposal', the Panel noted
that the English text of Art 59 did not qualify this word so that it could, in
accordance with its ordinary meaning, refer both to disposal outside the
channels of commerce as well as to release into the channels of commerce. This
ambiguity did not occur in the French and Spanish texts. The French text of
Art 59 refers to authority to order 'la mise hors circuit', which is a reference to
70
Ibid, para 7.221.
71
Ibid, para 7.236.
72
Ibid, para 7.238.
73
Ibid, para 7.246.
