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1、 Anti-Counterfeiting Trade Agreement 3 December 2010 1 The Parties to this Agreement,Noting that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally;Noting further that the proliferation of counterfeit and pirated goods,a
2、s well as of services that distribute infringing material,undermines legitimate trade and sustainable development of the world economy,causes significant financial losses for right holders and for legitimate businesses,and,in some cases,provides a source of revenue for organized crime and otherwise
3、poses risks to the public;Desiring to combat such proliferation through enhanced international cooperation and more effective international enforcement;Intending to provide effective and appropriate means,complementing the TRIPS Agreement,for the enforcement of intellectual property rights,taking in
4、to account differences in their respective legal systems and practices;Desiring to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;Desiring to address the problem of infringement of intellectual property rights,includi
5、ng infringement taking place in the digital environment,in particular with respect to copyright or related rights,in a manner that balances the rights and interests of the relevant right holders,service providers,and users;Desiring to promote cooperation between service providers and right holders t
6、o address relevant infringements in the digital environment;Desiring that this Agreement operates in a manner mutually supportive of international enforcement work and cooperation conducted within relevant international organizations;Recognizing the principles set forth in the Doha Declaration on th
7、e TRIPS Agreement and Public Health,adopted on 14 November 2001,at the Fourth WTO Ministerial Conference;Hereby agree as follows:2 CHAPTER I INITIAL PROVISIONS AND GENERAL DEFINITIONS Section 1:Initial Provisions ARTICLE 1:RELATION TO OTHER AGREEMENTS Nothing in this Agreement shall derogate from an
8、y obligation of a Party with respect to any other Party under existing agreements,including the TRIPS Agreement.ARTICLE 2:NATURE AND SCOPE OF OBLIGATIONS 1.Each Party shall give effect to the provisions of this Agreement.A Party may implement in its law more extensive enforcement of intellectual pro
9、perty rights than is required by this Agreement,provided that such enforcement does not contravene the provisions of this Agreement.Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.2.Nothing in this
10、 Agreement creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and enforcement of law in general.3.The objectives and principles set forth in Part I of the TRIPS Agreement,in particular in Articles 7 and 8,shall apply,mutatis mu
11、tandis,to this Agreement.ARTICLE 3:RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS 1.This Agreement shall be without prejudice to provisions in a Partys law governing the availability,acquisition,scope,and maintenance of intellectual property rights.2.This
12、 Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under its laws and regulations.ARTICLE 4:PRIVACY AND DISCLOSURE OF INFORMATION 1.Nothing in this Agreement shall require a Party to disclose:(a)information,the disclosure of
13、 which would be contrary to its law,including laws protecting privacy rights,or international agreements to 3 which it is party;(b)confidential information,the disclosure of which would impede law enforcement or otherwise be contrary to the public interest;or (c)confidential information,the disclosu
14、re of which would prejudice the legitimate commercial interests of particular enterprises,public or private.2.When a Party provides written information pursuant to the provisions of this Agreement,the Party receiving the information shall,subject to its law and practice,refrain from disclosing or us
15、ing the information for a purpose other than that for which the information was provided,except with the prior consent of the Party providing the information.Section 2:General Definitions ARTICLE 5:GENERAL DEFINITIONS For the purposes of this Agreement,unless otherwise specified:(a)ACTA means the An
16、ti-Counterfeiting Trade Agreement;(b)Committee means the ACTA Committee established under Chapter V(Institutional Arrangements);(c)competent authorities includes the appropriate judicial,administrative,or law enforcement authorities under a Partys law;(d)counterfeit trademark goods means any goods,i
17、ncluding packaging,bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods,or which cannot be distinguished in its essential aspects from such a trademark,and which thereby infringes the rights of the owner of the trademark in questio
18、n under the law of the country in which the procedures set forth in Chapter II(Legal Framework for Enforcement of Intellectual Property Rights)are invoked;(e)country is to be understood to have the same meaning as that set forth in the Explanatory Notes to the WTO Agreement;(f)customs transit means
19、the customs procedure under which goods are transported under customs control from one customs office to another;4 (g)days means calendar days;(h)intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement;(i)
20、in-transit goods means goods under customs transit or transhipment;(j)person means a natural person or a legal person;(k)pirated copyright goods means any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production an
21、d which 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 country in which the procedures set forth in Chapter II(Legal Framework for Enforcement of Intellectual Property Rights)
22、are invoked;(l)right holder includes a federation or an association having the legal standing to assert rights in intellectual property;(m)territory,for the purposes of Section 3(Border Measures)of Chapter II(Legal Framework for Enforcement of Intellectual Property Rights),means the customs territor
23、y and all free zones1 of a Party;(n)transhipment means the customs procedure under which goods are transferred under customs control from the importing means of transport to the exporting means of transport within the area of one customs office which is the office of both importation and exportation
24、;(o)TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights,contained in Annex 1C to the WTO Agreement;(p)WTO means the World Trade Organization;and (q)WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization,done on 15 April 1994.1 F
25、or greater certainty,the Parties acknowledge that free zone means a part of the territory of a Party where any goods introduced are generally regarded,insofar as import duties and taxes are concerned,as being outside the customs territory.5 CHAPTER II LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL
26、PROPERTY RIGHTS Section 1:General Obligations ARTICLE 6:GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT 1.Each Party shall ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this A
27、greement,including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.2.Procedur
28、es adopted,maintained,or applied to implement the provisions of this Chapter shall be fair and equitable,and shall provide for the rights of all participants subject to such procedures to be appropriately protected.These procedures shall not be unnecessarily complicated or costly,or entail unreasona
29、ble time-limits or unwarranted delays.3.In implementing the provisions of this Chapter,each Party shall take into account the need for proportionality between the seriousness of the infringement,the interests of third parties,and the applicable measures,remedies and penalties.4.No provision of this
30、Chapter shall be construed to require a Party to make its officials subject to liability for acts undertaken in the performance of their official duties.Section 2:Civil Enforcement2 ARTICLE 7:AVAILABILITY OF CIVIL PROCEDURES 1.Each Party shall make available to right holders civil judicial procedure
31、s concerning the enforcement of any intellectual property right as specified in this Section.2.To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case,each Party shall provide that such procedures shall conform to principles equivalent in s
32、ubstance to those set forth in this Section.2 A Party may exclude patents and protection of undisclosed information from the scope of this Section.6 ARTICLE 8:INJUNCTIONS 1.Each Party shall provide that,in civil judicial proceedings concerning the enforcement of intellectual property rights,its judi
33、cial authorities have the authority to issue an order against a party to desist from an infringement,and inter alia,an order to that party or,where appropriate,to a third party over whom the relevant judicial authority exercises jurisdiction,to prevent goods that involve the infringement of an intel
34、lectual property right from entering into the channels of commerce.2.Notwithstanding the other provisions of this Section,a Party may limit the remedies available against use by governments,or by third parties authorized by a government,without the authorization of the right holder,to the payment of
35、 remuneration,provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use.In other cases,the remedies under this Section shall apply or,where these remedies are inconsistent with a Partys law,declaratory judgments and adequate compensation
36、shall be available.ARTICLE 9:DAMAGES 1.Each Party shall provide that,in civil judicial proceedings concerning the enforcement of intellectual property rights,its judicial authorities have the authority to order the infringer who,knowingly or with reasonable grounds to know,engaged in infringing acti
37、vity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.In determining the amount of damages for infringement of intellectual property rights,a Partys judicial authorities shall have the authority to consider,inter alia
38、,any legitimate measure of value the right holder submits,which may include lost profits,the value of the infringed goods or services measured by the market price,or the suggested retail price.2.At least in cases of copyright or related rights infringement and trademark counterfeiting,each Party sha
39、ll provide that,in civil judicial proceedings,its judicial authorities have the authority to order the infringer to pay the right holder the infringers profits that are attributable to the infringement.A Party may presume those profits to be the amount of damages referred to in paragraph 1.3.At leas
40、t with respect to infringement of copyright or related rights protecting works,phonograms,and performances,and in cases of trademark counterfeiting,each Party shall also establish or maintain a system that provides for one or more of the following:(a)pre-established damages;or 7 (b)presumptions3 for
41、 determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement;or (c)at least for copyright,additional damages.4.Where a Party provides the remedy referred to in subparagraph 3(a)or the presumptions referred to in subparagraph 3(b),it shall ensur
42、e that either its judicial authorities or the right holder has the right to choose such a remedy or presumptions as an alternative to the remedies referred to in paragraphs 1 and 2.5.Each Party shall provide that its judicial authorities,where appropriate,have the authority to order,at the conclusio
43、n of civil judicial proceedings concerning infringement of at least copyright or related rights,or trademarks,that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorneys fees,or any other expenses as provided for under that Partys law.ARTICLE 10:
44、OTHER REMEDIES 1.At least with respect to pirated copyright goods and counterfeit trademark goods,each Party shall provide that,in civil judicial proceedings,at the right holders request,its judicial authorities have the authority to order that such infringing goods be destroyed,except in exceptiona
45、l circumstances,without compensation of any sort.2.Each Party shall further provide that its judicial authorities have the authority to order that materials and implements,the predominant use of which has been in the manufacture or creation of such infringing goods,be,without undue delay and without
46、 compensation of any sort,destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.3.A Party may provide for the remedies described in this Article to be carried out at the infringers expense.ARTICLE 11:INFORMATION RELATED TO INFRIN
47、GEMENT Without prejudice to its law governing privilege,the protection of confidentiality of information sources,or the processing of personal data,each Party shall provide that,in civil judicial proceedings concerning the enforcement of 3 The presumptions referred to in subparagraph 3(b)may include
48、 a presumption that the amount of damages is:(i)the quantity of the goods infringing the right holders intellectual property right in question and actually assigned to third persons,multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not b
49、een the act of infringement;or(ii)a reasonable royalty;or(iii)a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property right in question.8 intellectual property rights,
50、its judicial authorities have the authority,upon a justified request of the right holder,to order the infringer or,in the alternative,the alleged infringer,to provide to the right holder or to the judicial authorities,at least for the purpose of collecting evidence,relevant information as provided f