RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/TON/6
12 February 2003
(03-0909)
Working Party on the
Accession of TongaOriginal:  English
ACCESSION OF TONGA
Information on the Kingdom of Tonga's Implementation of the WTO Agreement
on Trade-related Aspects of Intellectual Property Rights (TRIPS)
The Ministry of Labour, Commerce and Industry of the Kingdom of Tonga has submitted the
following information on the Kingdom of Tonga's implementation of the WTO Agreement on Trade-
related Aspects of Intellectual Property Rights (TRIPS).
_______________
TRIPS Agreement TONGA
General Obligations IP Agreement s to which the country adheres
Compliance with Articles 1 through 12 and Article 19 of
the Paris Convention for the Protection of IndustrialProperty in respect of Parts II, III, and IV of the TRIPSAgreement. TRIPS Article 2.
Under Paris, Article 1(2), industrial property has as itsobject patents, utility models, industrial designs,
trademarks, service marks, trade names, indications of
source or appellations of origin, and the repression ofunfair competition.Industrial Property Act 1994
Protection of Geographical Indications Act 2001
In Paris.  Article 1(3), industrial property applies not onlyto industry and commerce proper, but to agricultural andextractive industries and to all manufactured or naturalproducts, e.g., wines, grain, tobacco leaf, fruit, cattle,
minerals, mineral waters, beer, flowers, and flour.Not included in current Tongan legislation
Under Paris, Article 2, nationals of Members are to enjoy
in other Members the advantages that their respective lawsgrant to nationals, and shall have the same protection andthe same legal remedy against any infringement of theirrights if they conform to the conditions and formalitiesimposed upon the Member's nationals.Not included in current Tongan legislation
Paris.  Article 3, requires that nationals of non-Member
countries domiciles or that have "real and effective"
industrial or commercial establishments in a Membercountry be treated as nationals of a Member country.Not included in current Tongan legislationWT/ACC/TON/6
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TRIPS Agreement TONGA
Under Paris, Article 4.a right of priority is to be given an
applicant for a patent, for registration of a utility model, anindustrial design, or of a trademark who has filed theequivalent of a regular national filing under the domesticlegislation of a Member country.  The periods of priorityare to be 12 months for patents and utility models, and 6
months for industrial designs and trademarks.  The Article
discusses the technical details of granting priority indepth.Industrial Property Act 1994, Part II, Section 9
Article 4bis states that patents obtained for the same
invention in various members of the Paris Union areindependent of each other.Not included in current Tongan legislation
Article 4ter requires that inventors have the right to be
named as such in the patent.Industrial Property Act 1994, Part II, Section 6
Under Article 4quater restrictions or limitations on the
sale of a patented product or a product produced by a
patented process cannot be the grounds for refusing a
patent or invalidating one already issued.  Under Article5(A)(1), importation of a patented product manufacturedin a Paris Union country cannot be the basis of forfeitureof the patent.  Article 5(A)(2) and (3) authorize countriesto use compulsory licensing as a means to prevent abuses,
such as the failure to work, but they may not forfeit a
patent unless the grant of a compulsory license would notbe sufficient to prevent th e abuse.  Proceedings for
forfeiture or revocation cannot be institute until two yearsafter the grant of the first compulsory license.Not included in current Tongan legislation
Article 5(A)(4) prohibits application for a compulsory
license for failure to work until four years have passed
since tile application was filed or three years from date of
grant and no compulsory license is to be granted if thepatentee justifies the failure to work.  Licenses are to benon-exclusive, and may not be transferred except with theenterprise or goodwill that exploits the license.  Article5(B) prohibits forfeiture of industrial designs for failure to
work or for importing articles corresponding to those that
are protected.Industrial Property Act 1994, Part II, Section 15
Article 5(C) prohibits cancellation of a mark for
unjustified non-use before a reasonable period of time haspassed and permits the proprietor to use differing elementsthat do not diminish the distinctive character of a markwithout invalidating the registration or diminishing the
protection granted the mark.  Concurrent use of the mark
by co-proprietors is permitted so long as the public is notmislead.Industrial Property Act 1994, Part V, Section 30
Under Article 5(D), protection of patents, registered
trademarks, and industrial designs cannot be conditionedupon indication or mention of such patent, trademarkregistration, or industrial design protection.Industrial Property Act 1994
Article 5bis requires that a grace period of at least six
months be provided for the payment of maintenance fees
for industrial property, but a surcharge is permissible.Countries are authorized to restore patents that lapsed fornon-payment of fees.Industrial Property Act 1994,
Part II, Section 14 (2)
Part IV, Section 24 (5)Part V, Section 29 (4)WT/ACC/TON/6
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TRIPS Agreement TONGA
Article 5ter prohibits a Paris Member from making use of
patented devices aboard a vessel, aircraft, of land vehicletemporarily or accidentally in the territory or the Member.Not included in current Tongan legislation
Article 5quater requires that process patent owners have
all the rights against an imported product produced by thepatent process that they would have with respect toproducts manufactured at home.Not included in current Tongan legislation
Article 5quinquies requires that Paris Members protect
industrial designs.Industrial Property Act 1994, Part IV
Article 6 makes the conditions for filing and registration
of trademarks subject to domestic legislation but also
makes filing and registration independent of those in othercountries, including the country of origin.Industrial Property Act 1994, Part II, Section 27
Article 6bis requires parties, ex officio if legally possible
or at the request of an interested party, to refuse to registeror, for a period of at least 5 years, to cancel theregistration of a trademark confusingly similar to a well-
known mark.  No time limit is placed on a mark used in
bad faith.Industrial Property Act 1994, Part V, Section 26
(2) (e) and Section 28 (4)
Article 6ter requires Members to refuse to register or toinvalidate the registration that includes, withoutauthorization, armorial bearings, flags, state emblems,official signs and hallmarks, etc.  An exception isprovided for owners of rights acquired in good faithbefore the Convention entered into force for that country.Industrial Property Act 1994, Part V, Section 26
(2) (d)
Article 6quater makes the assignment of a mark valid if
the portion of the business or goodwill of the business
together with the exclusive right to manufacture and sellthe goods bearing the mark are also transferred.Industrial Property Act 1994, Part VII, Section 36
Article 6quinquies requires that trademarks duly registered
in a Member be accepted for filing in other Members, withcertain reservations, and establishes the conditions underwhich a trademark may be denied registration or may be
invalidated.Industrial Property Act 1994, Part V, Section 27
Article 6sexties states that Paris Members undertake" to
protect service marks without being required to provide
for their registration.Not included in current Tongan legislation
Article 6septies requires that trademark owners be able to
oppose or request cancellation of a registration of theirtrademarks applied for by their agent or representativewithout their authorization "unless the agent orrepresentative justifies his action.Not included in current Tongan legislation
Article 7 states that the nature of the goods to which a
trademark is applied may in no case be an obstacle to the
registration of the trademark. (Duplicate language is inTRIPS Article 15.4.)Not included in current Tongan legislation
Article 7bis requires that Members permit registration of
collective marks belonging to associations the existence ofwhich is not contrary to the law of the country of origin,even where the association is not established in the
country where protection is being sought.Industrial Property Act 1994, Part V, Section 31
Article 8 requires that trade names be protected by
Members without the necessity of registration, whether or
not the names are part of a trademark.Industrial Property Act 1994, Part V, Section 33WT/ACC/TON/6
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TRIPS Agreement TONGA
Article 9 requires seizure on importation or exclusion or
goods bearing a trademark or trade name withoutauthorization, unless a country's laws provide for neitherremedy, in which case domestic actions and remediesmust be available.Not included in current Tongan legislation
Article 10 applies the obligation of Article 9 to the direct
or indirect use of false indications of source of goods, or
false indication of the producer, manufacturer, or
merchant of such goods.Protection of Geographical Indications Act 2001
Article 10bis requires Members to provide protection
against unfair competition, including against acts thatcreate confusion of various kinds about the goods oractivities of a competitor, that consist of false allegationsabout a competitor, or that are apt to mislead the publicregarding a competitor's goods.Industrial Property Act 1994, Part VI, Section 34
Protection Against Unfair Competition Act 2002
Article 10ter requires that Members undertake to assure to
foreign nationals effective legal remedies to repress
actions referred to in Articles 9, 10 and 10bis, and to allowfederations and associations representing foreignbusinesses, on the basis of reciprocity, to take action incourt and before administrative authorities to repress suchacts.Common Law remedies
Article 11 requires that temporary protection. consistent
with domestic legislation, be afforded to patentable
inventions, utility models, industrial designs andtrademarks in respect of goods exhibited at official orofficially recognized international exhibitions held in theirterritory.Not included in current Tongan legislation
Article 12 requires Members to establish industrial
property offices for patents. utility models, industrial
designs and trademarks for the communication to the
public through publication of a periodic journal of thenames of patent owners with a brief designation of theirinventions, and the reproduction of trademarks.Industrial Property Act 1994, Part VII, Sections 38
& 39
Article 19 authorizes Members to enter into separate andspecial industrial property agreements among themselves,so long as those agreements do not contravene the
provisions of Paris.Noted
National treatment, with exceptions allowed in the Paris,
Berne and Rome Conventions.  Article 3.Not included in current Tongan legislation
Most favoured nation treatment, with enumerated
exceptions.  Article 4.Not included in current Tongan legislation
Copyright and Neighbouring RightsCitation to copyright and related laws
COPYRIGHT ACT 2002
Compliance with Articles I through 21 of the BerneConvention with the exception of Article 6bis, Article 9.1.Part IV, Section 33
Article 2 defines "literary and artistic works" as "every
production in the literary, scientific and artistic domainwhatever may be the mode or form of its expression,"giving examples. Limitations related to speeches are
provided in Article 2bis.Part 1, Section 3
Article 3 requires that protection be provided to the works
of authors who are nationals of Berne Union members and
to works of nationals of non-Union countries if thoseworks are published in a Union member simultaneouslywith publication in the non-Union country.Part IV, Section 31 (1) (a) and (b)WT/ACC/TON/6
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TRIPS Agreement TONGA
Article 4 requires that protection be provided
cinematographic works not falling under Article 3 if themaker has a headquarters or habitual residence in a Unionmember and to works of architecture or artistic worksincorporated into a buildi ng or structure in a Union
member.Part IV, Section 31 (1) (c) and (d)
Article 5 requires that authors enjoy the rights required by
Berne and any other rights a country provides works on a
national treatment basis without being subject to anyformalities.Part IV, Section 31 (2)
Article 7 requires that the term of protection for copyright
be 50 years following the death of the author.  Specialterms are authorized for cinematographic works,anonymous or pseudonymous works, photographic worksand works of applied art.  Article 8 gives authors of
protected works the exclusive right to make or authorize
the making of translations of the work.Part I, Section 18
Article 9 requires that authors be given the exclusive right
to authorize reproduction of the work in any manner orform with only limited exceptions that do not conflict withthe normal exploitation of the work and do notunreasonably prejudice the legitimate interests of the
author.Part I, Section 6, Section 8-17
Articles 10 and 10bis define certain authorized "free uses
of works".Part I, Section 6, Section 8-17
Articles 11, 11bis, and 11ter require that authors of
dramatic, dramatico-musical and musical works and anytranslation thereof and authors of literary and artisticworks, the exclusive right to authorize the publicperformance of their works, including by broadcast, public
recitation and any communication to the public.Part I, Section 6 (1) (h) – (j)
Article 12 requires that authors of literary or artistic works
have the exclusive right to authorize adaptations,
arrangements and other alterations of their works.Part I, Section 6 (1) (c)
Article 13 authorizes countries to impose reservations and
conditions on the exclusive right granted authors ofmusical works or written works that are recorded.Not included in current Tongan legislation
Articles 14 requires that authors of literary and artistic
works have the exclusive right to authorize thecinematographic adaptation and reproduction of their
works and the distribution, public performance and
communication to the public of the adaptation orreproduction, without the limitations authorized underArticle 13(1).Part I, Section 6 (1) (a) and (c)
Article 14bis specifies that a cinematographic work is to
be protected as an original work without prejudice to anywork that is adapted or reproduced and the author of the
cinematographic work is to enjoy the same rights as the
author of any other work.Part I, Section 6
Article 14ter requires "droit de suite" in connection with
subsequent sales works of art and manuscripts.Not included in current Tongan legislation
Article 15 requires that ownership of a work, for purposes
of litigation, be presumed to be that which appears on thework in the usual manner.Part I, Section 20 (1)WT/ACC/TON/6
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TRIPS Agreement TONGA
Article 16 requires that infringing copies of a work be
subject to seizure whether domestically produced orimported.Part III, Section 28  (2)
Article 18 requires that copyright protection be applied to
all works which, at the moment Berne becomes effective,have not fallen into the public domain in the country oforigin through the expiry of the term of protection.Part IV, Section 35 (2)
Article 19 authorizes Union members to provide greater
protection than that required by the Convention.Noted
Article 20 authorizes Union members to enter into special
agreements among themselves to provide more extensive
rights than those provided by Berne.Noted
Protect computer programs, whether in source or object
code, as literary works under the Berne Convention.Protect compilations of data, whether in machine readable
or other form are to be protect ed as intellectual creations if
they constitute such.
Article 10.Part 1, Section 3 (1) (a) and (2)
Part I, Section 4 (1)
Provide rental rights at least for computer programs and
cinematographic works with certain exceptions.  Article
11.Part I, Section 6 (1) (e) and (2)
Provide a term of protection of fifty years from the death
of tile author (Berne Article 7.1 and TRIPS Article 9.1) or,for works the term of which is not measured by the life ofthe author, a term of 50 years from the end of the calendaryear of authorized publication, or, if not published within
fifty years from making, fifty years from the end of the
calendar year of making.Article 12.Part I, Section 18
Confine limitations and exceptions to exclusive rights to
certain special cases which do not conflict with a normalexploitation of the work and do not unreasonablyprejudice the right holder's legitimate interests.
Article 13.Part II, Section 26
Provide performers with the right for 50 years from the
date of a performance to prevent unauthorized fixation of
their unfixed performances and of reproductions of suchfixations and to prevent the unauthorized broadcast bywireless means and communication to the public of theirlive performances.
Article 14.1 and 5.Part II, Section 22
Provide phonogram producers with the right for 50 years
from the date of first authorized fixation to prohibit
unauthorized reproduction of their phonograms, directlyor indirectly, and to prohibit rental of copies of theirphonograms once sold or otherwise distributed.Article 14.2, .4, and .5.Part II, Section 23
Providing broadcasting organizations with the exclusive
rights for 20 years of fixation, reproduction of fixations,
and rebroadcasting by wireless means of their  broadcasts
and the communication to the public of broadcasts of theirbroadcasts or provide to the owners of the copyright in thematerial broadcast the possibility of exercising such rights.Article 14.3 and 5.Part II, Section 25WT/ACC/TON/6
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TRIPS Agreement TONGA
TrademarksCitation to appropriate law
Industrial Property Act 1994
Provide trademark or service mark protection for any sign,or combination of signs capable of distinguishing thegoods or services of one undertaking from those of otherundertakings.  Article 15.1Part V
Not deny registration for a mark based solely on the nature
of the goods or services to which a trademark is to beapplied.  Article 15.4.Not included in current Tongan legislation
Trademarks must be published before or shortly after
registration to permit opposition or opportunity to apply
for cancellation.  Article 15.5.Part V, Section 28
Provide trademark owners the exclusive right to prevent
unauthorized use identical or similar marks for similargoods or services of other parties if confusion is likely toresult.  Article 16.1Part V, Section 28 (1)
Part V, Section 29 (1) and (2)
Presume confusion where an identical mark is usedwithout authorization on identical goods or services.Article 16.1.Part V, Section 26 (2) (f)
Provide protection for well know trademarks and service
marks in accordance with Article 6bis, of the Paris
Convention, even where use is on goods or services whichare not similar to those in respect of which a trademark isregistered if the latter use would imply a connection withthe right holder or would be likely to damage the rightholder's interests.  Article 16.2 and .3.Part V, Section 26 (2) (e)
Allow only limited exceptions to the rights conferred by a
trademark such as fair use of descriptive terms.  Article
17.Not included in current Tongan legislation
Provide a period of protection for registration of at least
seven years, renewable indefinitely.  Article 18.Part V, Section 29 (4)
Allow cancellation for non-use only after a period of three
years of uninterrupted non-use unless valid reasons existfor the non-use, including government interference withuse.  Article 19.1.Part V, Section 30 (4)
No encumbering of the use of a trademark by special
requirements.  Article 20.Not included in current Tongan legislation
May establish conditions for licensing but compulsory
licensing not permitted and owner of registered mark must
be able to assign it with or without transfer of business.
Article 21.Part VII, Section 36
Geographical IndicationsCitation to appropriate law or laws
Protection of Geographical Indications
Act 2001
Provide means to prevent deceptive use of Geographicalindications identifying location where a given quality,reputation or other characteristic of a good is attributable
to its location.  Article 22.1 and 2.
Refuse to register or invalidate registrations of trademarkscontaining geographical indications except in instances inwhich such marks have been used continuously for at leastI 0 years or in good faith before 15 April 1994.Article 22.3Part II, Section 4:
Protect against use of geogra phical indications even when
literally true but which falsely represent that the goods
originate in another territory.  Article 22.4Part II, Section 5WT/ACC/TON/6
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TRIPS Agreement TONGA
Protect, with certain exceptions, appellations or origin for
wines and spirits even against use accompanied byexpressions such as 'kind," type," "style," etc.Article 23.1 and 24.Part II, Section 6
Refuse or invalidate, with certain exceptions trademark
registrations containing geographical indications for winesand spirits if they do not originate in the place named.
Article 23.2 and 24.Part II, Section 6
Industrial DesignsCitation to appropriate law
Industrial Property Act 1994
Provide, with certain exceptions, protection for new or
original, independently created industrial designs.Article 25.1.Part IV, Section 20
Ensure that requirements for securing protection for textile
designs are not prohibitive of such protection.Article 25.2.Noted
Protection should last at least 10 years. Part IV, Section 24 (5)
PatentsCitation to appropriate law
Industrial Property Act 1994
Provide patents for any inventions, whether products orprocesses, in all fields of technology if they are new,involve an inventive step and are industrially applicable.
Exceptions are permitted for plants and animals, except
for microorganisms and non-biological andmicrobiological processes.  Exemptions are also permittedfor reasons of ordre public and morality.  Article 27.Part II, Section 5 (1), (7) and (8)
Provide patent owners with the right to prevent others
from making, using, offering for sale, selling or importinga patented product or from using a patent process or using,
offering for sale, selling or importing a product produced
directly using such process.  Article 28.1.Part II, Section 13 (1) and (2)
Give patent owners the right to assign the rights in the
patent, or transfer the rights by succession, or licensethem.  Article 28.2Part VII, Section 36
Require applicants to disclose the invention so that one
skilled in the art can carry it out and may requireindication of the best mode and information on
corresponding foreign applications.  Article 29.Part II, Section 7 (4)
Ensure that any exceptions to exclusive patent rights do
not unreasonably conflict with normal exploitation of the
patent and do not unreasonably prejudice the legitimateinterests of the patent owner, taking third party interestsinto account.  Article 30.Noted
Compulsory licenses can be issued only when enumerated
conditions are met, including such things as notice,remuneration, limitations on use and transfer of the
license, etc.  Article 3 1.Part II, Section 15
Provide an opportunity for judicial review of decisions to
revoke or forfeit a patent.  Article 32.Part II, Section 16
Provide a patent term of at least 20 years from the filing
date.  Article 33.Part II, Section 14WT/ACC/TON/6
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TRIPS Agreement TONGA
Shift the burden of proof in process patent infringement
actions to the defendant in instances in which tile productproduced by the process is new or where it is substantiallylikely that the identical product was made using theprocess and the patent owner has been unable throughreasonable efforts to determine the process used.
Article 34.Common Law jurisdiction
Integrated-Circuit Layout DesignsCitation to appropriate law
Protection of Layout-Designs (Topographies) of
Integrated Circuit Act 2001
Provide protection for original layout designs of integratedcircuits that are registered or have been commerciallyexploited anywhere in the world.  Articles 3, 4, 5, and 7 ofthe Washington Treaty as incorporated into TRIPS byArticle 35.Section 4 and 5
Make unlawful, except in certain circumstances, the
reproduction, importation, sale or other distribution of a
protected layout design or an integrated circuit embodyingsuch design or an article containing such a microcircuit.Article 6 of Washington and Article 36 of TRIPS.Section 7
Provide such protection for a term of I 0 years from the
films, of an application for registration or from firstcommercial exploitation.  Article 38.Section 8
Undisclosed Information Citation to appropriate law or laws
Provide protection for undisclosed information that is
secret (not generally known or readily ascertainable); has
commercial value because of its secrecy., and has been
subject to reasonable steps to keep it secret.  Article 39.2.Not included in current Tongan legislation
Protect data submitted to obtain marketing approval for
pharmaceutical or agricultural chemicals utilizing a newchemical entity.  Article 39.3.Not included in current Tongan legislation
Enforcement Citation to appropriate law or laws
- General Provisions
Provide for effective action against infringement of
intellectual property rights without creating barriers tolegitimate trade or opportunities for abuse.  Article 41.1Industrial Property Act 1994, Part VII, Section 43
Provide enforcement procedures that are fair and equitable
and are not unnecessarily complicated or costly and do notentail unreasonable time-limits or unwarranted delays.
Article 41.2Industrial Property Act 1994, Part VII
Provide decisions on the merits based upon the evidence
presented in the case to the parties, preferably in writingwith the reasons explained.  Article 41.3.Industrial Property Act 1994, Part VII, Section 41
Provide for appeals to judicial bodies of final
administrative decisions and of at least the legal aspects ofinitial judicial decisions on the merits of a case.  Article41.4.Industrial Property Act 1994, Part VII, Section 42
- Civil and Administrative Procedures and
Remedies
Provide a procedure that allows plaintiffs to bring an
action for infringement; requires that defendants be
notified; permits both side to present evidence in supportof their position; and protects confidential information.Article 42Industrial Property Act 1994, Part VII, Sections 42
and 43WT/ACC/TON/6
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TRIPS Agreement TONGA
Authorize judges to order production of evidence
necessary to substantiate a party's claims where that partyhas been unable to obtain such evidence from theopposing party.  Article 43. 1.Common Law Remedy
Authorize judges to enjoin a defendant, except the
government, from infringing intellectual property rights.Article 44. 1.Industrial Property Act 1994, Part VII, Section 43
Authorize judges to order the payment of monetary
damages adequate to compensate for the injury done by
the infringement.  Article 45.1Industrial Property Act 1994, Part VII, Section 43
Authorize judges to order infringer to pay right holders
enforcement costs and recovery of profits and/or statutorydamages.  Article 45.2.Industrial Property Act 1994, Part VII, Section 43
Authorize additional remedies including seizure of
infringing goods, and the materials and implements thepredominant use of which is infringement.  Article 46.Industrial Property Act 1994, Part VII, Section 43
Authorize indemnification of defendant, including
attorneys' fees in the event of abuse by plaintiffs.Article 48.1.Industrial Property Act 1994, Part VII, Section 43
Exempt public authorities and officials from liability in
connection with the administration of intellectual property
laws only where the actions are taken or intended in goodfaith within the scope of tile relevant authority.Article 48.2.Not included in current Tongan legislation
Ensure that administrative remedies conform to the
principles in the preceding Articles.  Article 49.Not included in current Tongan legislation
- Provisional Measures
Authorize judges to grant temporary restraining orders and
provisional relief to prevent infringement and to preserveevidence.  Article 50.1.Not included in current Tongan legislation
Authorize judges to require the complaining party to
indemnify the defending party against harm if the decision
on the merits finds the provisional relief unjustified.
Article 50.3.Not included in current Tongan legislation
Provide for notice, for formal action by the plaintiff after
temporary restraining orders, etc.  Article 50.4+.Not included in current Tongan legislation
- Border Measures
Provide for suspension of release by customs authorities
of goods suspected of bearing a counterfeit trademark orof being a piratical copyrighte d work, either at the request
of a right holder.  Members are authorized to extend suchprotection to holders of other forms of intellectual
property, Article 51Not included in current Tongan legislation
Require right holders initiating border measures to provide
evidence of a prima facie infringement and a descriptionof tile goods sufficient for customs authorities torecognize them.  The right holder must be notified withina reasonable time is action will be taken on his behalf.Article 52Not included in current Tongan legislation
Authorize authorities to require the right holder requesting
border measures to post a bond sufficient to protect the
defendant and to prevent abuse.  Article 53Not included in current Tongan legislation
Requires prompt notification of the right holder and the
importer when action under Article 51 is taken.  Article 54Not included in current Tongan legislationWT/ACC/TON/6
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TRIPS Agreement TONGA
Requires that customs authorities be notified within a
maximum of 20 days of the receipt of notice thatproceedings on the merits have begun or the suspension isto be revoked.  Article 55Not included in current Tongan legislation
Authorities must be authorized to require the right holder
to compensate the importer or owner of the goods subjectto border measures if goods were wrongfully detained or
if proceedings leading to a d ecision on the merits are not
begun within tile allotted time.  Article 56.Not included in current Tongan legislation
Right holders must be allowed to inspect the detained
goods in order to substantiate the right holder's claims.Importers must be given similar authority.  Members maygive the right holder the names and addresses of thoseinvolved in the importation when infringement is found toexist.  Article 57.Not included in current Tongan legislation
Establishes the conditions that must be in place if customs
authorities are authorized to act ex officio, including the
ability to ask the right holder for information at any time;the requirement to notify the importer promptly of thesuspension; and the requirement that public officials beliable if they act in bad faith.  Article 58Not included in current Tongan legislation
Competent authorities must be able to order destruction or
disposal other than by re-export of infringing goods where
appropriate.  Article 59Not included in current Tongan legislation
Members are authorized to except from border measures
small quantities of infringing goods of a non-commercial
nature carried in personal luggage or shipped in smallconsignments.  Article 60Not included in current Tongan legislation
- Criminal Procedures
Provide criminal procedures and penalties, sufficient to act
as a deterrent, for wilful trademark counterfeiting orcopyright piracy on a commercial scale.  Authorizesextension of criminal actions to other forms of intellectual
property where infringements are wilful and on a
commercial scale.  Article 61.Industrial Property Act 1994, Section 43
Copyright Act 2002, Section 29
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