- Elgar Commentaries series
Section 2 CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
Members are required to ensure that enforcement procedures specified in Part III are available under their law so as to permit effective action against any act of infringement of IP rights covered by TRIPS. According to Blacks Law Dictionary the term ‘enforcement’ means: ‘The act or process of compelling compliance with a law, mandate, command, decree, or agreement’. According to the Oxford Dictionary the term ‘procedure’ in the legal context means: ‘Legal action or proceeding; the formal steps to be taken in a legal action; the mode of conducting judicial proceedings’. The term ‘enforcement procedures’ in Article 41 is sufficiently wide to encompass procedural requirements, such as notices of suspension (Articles 54 and 55) and rights of inspection and information (Article 57), as well as the provision of remedies. The Part III provisions dealing with remedies include injunctions (44), damages (Article 45) and other remedies (Articles 44, 45, 46 and 50). ‘[E]nforcement procedures’ encompasses both judicial and administrative procedures. A common feature of sections 2, 3 and 4 of Part III is that the initiation of the procedures is generally the responsibility of the rights holder. On that basis, at least in the case of enforcement of private rights, it arguably would not involve a substantial amount of state resources. However, to the extent that court facilities and resources are required to enforce those private rights, state resources may be required. Comments by the representative of Malaysia at a meeting of the Council for TRIPS in September 2005 may represent the circumstances of many of developing countries:
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