prompt and effective provisional measures:
(a) against a party or, where appropriate, a third party over whom the
relevant judicial authority exercises jurisdiction, to prevent an
infringement of any intellectual property right from occurring, and in
particular, to prevent goods that involve the infringement of an
intellectual property right from entering into the channels of commerce;
(b) to preserve relevant evidence in regard to the alleged infringement.
2. Each Party shall provide that its judicial authorities have the authority to adopt
provisional measures inaudita altera parte where appropriate, in particular where any
delay is likely to cause irreparable harm to the right holder, or where there is a
demonstrable risk of evidence being destroyed. In proceedings conducted inaudita
altera parte, each Party shall provide its judicial authorities with the authority to act
expeditiously on requests for provisional measures and to make a decision without
undue delay.
3. At least in cases of copyright or related rights infringement and trademark
counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial
authorities have the authority to order the seizure or other taking into custody of suspect
goods, and of materials and implements relevant to the act of infringement, and, at least
for trademark counterfeiting, documentary evidence, either originals or copies thereof,
relevant to the infringement.
4. Each Party shall provide that its authorities have the authority to require the
applicant, with respect to provisional measures, to provide any reasonably available
evidence in order to satisfy themselves with a sufficient degree of certainty that the
applicant’s right is being infringed or that such infringement is imminent, and to order
the applicant to provide a security or equivalent assurance sufficient to protect the
defendant and to prevent abuse. Such security or equivalent assurance shall not
unreasonably deter recourse to procedures for such provisional measures.
5. Where the provisional measures are revoked or where they lapse due to any act
or omission by the applicant, or where it is subsequently found that there has been no
infringement of an intellectual property right, the judicial authorities shall have the
authority to order the applicant, upon request of the defendant, to provide the defendant
appropriate compensation for any injury caused by these measures.
Section 3: Border Measures4’ 5
4 Where a Party has dismantled substantially all controls over movement of goods across its border with
another Party with which it forms part of a customs union, it shall not be required to apply the provisions
of this Section at that border.
5 It is understood that there shall be no obligation to apply the procedures set forth in this Section to
goods put on the market in another country by or with the consent of the right holder.
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