Page 403 - Regional Comprehensive Economic Partnership (RCEP)

2. In determining the amount of damages referred to in paragraph 1, 2. Each Party shall further provide that in civil judicial procedures its
a Party’s judicial authorities shall have the authority to consider, judicial authorities have the authority to order that materials and
among other things, any legitimate measure of value the right implements, the predominant use of which has been in the
50
holder submits. creation of such infringing goods, be, without compensation of
any sort, disposed of outside the channels of commerce in such
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3. In cases of infringement of copyright or related rights and a manner as to minimise the risks of further infringements.
trademark counterfeiting, the judicial authorities shall have the
authority to order the infringer who knowingly, or with reasonable 3. In regard to counterfeit trademark goods, the simple removal of
grounds to know, engaged in infringing activity to pay the right the trademark unlawfully affixed shall not be sufficient, other than
holder the infringer’s profits that are attributable to the in exceptional cases, to permit the release of goods into the
51
infringement. channels of commerce.

Article 11.61: Court Costs and Fees Article 11.63: Confidential Information in Civil Judicial Proceedings

Each Party shall provide that its judicial authorities, where appropriate, Each Party shall provide that in civil judicial proceedings concerning the
have the authority to order , at the conclusion of civil judicial enforcement of intellectual property rights, its judicial authorities have
52
proceedings concerning the infringement of at least copyright or related the authority to impose penalties on parties to the proceeding, their
rights and trademarks, that the prevailing party is awarded payment by counsel, experts, or other persons subject to the court’s jurisdiction, for
the losing party of court costs or fees and appropriate attorney’s fees, or violation of judicial orders regarding the protection of confidential
55
any other expenses as provided for under that Party’s law. information produced or exchanged in that proceeding.

Article 11.62: Destroying Infringing Goods and Materials and Article 11.64: Provisional Measures
Implements
1. In civil judicial proceedings concerning trademark counterfeiting,
1. Each Party shall provide that in civil judicial procedures its judicial each Party shall provide that its judicial authorities have the
authorities have the authority at least at the right holder’s request, authority to adopt provisional measures to order the seizure, or
to order that pirated copyright goods and counterfeit trademark other taking into custody, of suspected infringing goods and both
goods be destroyed, except in exceptional circumstances, without of the following:
compensation of any sort.
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(a) materials and implements predominantly used in the act of
alleged infringement; and
50 For greater certainty, a Party’s judicial authorities may have the authority to consider
the value of the infringed goods or services measured by their market price, in
determining the amount of damages, where appropriate. (b) documentary evidence relevant to the alleged
infringement.
51 A Party may comply with this paragraph through presuming those profits to be the
damages referred to in paragraph 1.

52 The judicial authorities of a Party may have the authority to make such orders through
separate proceedings after the conclusion of the civil judicial proceedings. 54 For greater certainty, the Parties understand that while judicial authorities have the
authority to order the disposal of the materials and implements, they may also have the
53 For greater certainty, the Parties understand that while judicial authorities have the authority to order, without compensation of any sort, the destruction of such materials
authority to order the destruction of the goods, they may also have the authority to and implements instead of disposal.
order, without compensation of any sort, the disposal of such goods outside the
channels of commerce in such a manner as to avoid any harm caused to right holders, 55 For greater certainty, for the purposes of this Article, the Parties understand that a
instead of destruction. Party’s law may use an alternative term to “judicial orders” such as “court orders”.

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