Page 405 - Regional Comprehensive Economic Partnership (RCEP)

2. In civil judicial proceedings concerning the infringement of SUBSECTION 3
copyright or related rights, each Party shall provide that its judicial BORDER MEASURES
authorities have the authority to adopt provisional measures to
order the seizure, or other taking into custody, of suspected
infringing goods and at least one of the following: Article 11.65: Suspension of the Release of Suspected Pirated
Copyright Goods or Counterfeit Trademark Goods by Right
(a) materials and implements predominantly used in the act of Holder’s Application
alleged infringement; or
1. Each Party shall adopt or maintain procedures with respect to
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(b) documentary evidence relevant to the alleged import shipments under which a right holder, who has valid
infringement. grounds for suspecting that the importation of pirated copyright
goods or counterfeit trademark goods may take place, may lodge
3. Each Party shall provide that its judicial authorities have the an application with the Party’s competent authorities to suspend
authority to adopt provisional measures inaudita altera parte the release of the suspected pirated copyright goods or
where appropriate, in particular where any delay is likely to cause counterfeit trademark goods in accordance with Article 51 of the
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irreparable harm to the right holder or where there is a TRIPS Agreement.
demonstrable risk of evidence being destroyed.
2. For the purposes of this Subsection, “competent authorities” may
4. Each Party shall provide that its judicial authorities have the include the appropriate judicial, administrative, or law
authority to require an applicant, with respect to provisional enforcement authorities under a Party’s laws and regulations.
measures, to provide any reasonably available evidence in order
to satisfy the judicial authority with a sufficient degree of certainty
that the applicant is the right holder and that the applicant’s right Article 11.66: Applications for Suspension or Detention
is being infringed or that such infringement is imminent, and to
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order the applicant to provide a security or equivalent assurance Each Party shall endeavour to provide that an accepted application for
sufficient to protect the defendant and to prevent abuse, and so
as not to unreasonably deter recourse to procedures for such 56 The Parties understand that there shall be no obligation to apply such procedures to
provisional measures. imports of goods put on the market in another Party or non-Party by or with the consent
of the right holder, or to goods in transit.
5. For greater certainty, the Parties understand that provisional 57 For the purposes of Subsection 1 (General Obligations), Subsection 2 (Civil
measures shall be implemented in accordance with paragraphs 4 Remedies), Subsection 3 (Border Measures), and Subsection 4 (Criminal Remedies):
through 8 of Article 50 of the TRIPS Agreement.
(a) “counterfeit trademark goods” means any goods, including packaging,
bearing without authorisation a trademark that is identical to a
trademark validly registered in respect of such goods, or that cannot
be distinguished in its essential aspects from such a trademark, and
that thereby infringes the rights of the owner of the trademark in
question under the laws and regulations of the Party providing
procedures under those Subsections; and

(b) “pirated copyright goods” means any goods that are copies made
without the consent of the right holder or person duly authorised by the
right holder in the country of production and that are made directly or
indirectly from an article where the making of that copy would have
constituted an infringement of a copyright or a related right under the
law of the Party providing procedures under those Subsections.

58 For the purposes of this Subsection, a Party may treat “application” as meaning
“recordation”.

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