Source: EURLEX
Language: en
Format: md

[Keywords](#IX)
  
[Summary](#SM)

## Keywords

1. International agreements - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) - Application to proceedings pending at the time of entry into force of the Agreement in the State concerned - Conditions

(TRIPS Agreement, Art. 50)

2. International agreements - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) - Article 50(6) - Direct effect - Absence - Obligations of national courts in the areas covered by Community law

(TRIPS Agreement, Art. 50(6))

3. International agreements - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) - Provisional measures - Lapse on the ground that no substantive action has been brought within the period prescribed - Need for a request by the defendant - Determination of the period within which substantive proceedings are to be instituted and power of the judicial authorities to determine that period of their own motion - Questions falling within the competence of each Member State

(TRIPS Agreement, Art.50(6))

## Summary

1. Where the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), as set out in Annex 1 C to the Agreement establishing the World Trade Organisation, approved on behalf of the Community, as regards matters within its competence, by Decision 94/800, became applicable in the Member State concerned at a time when the court of first instance has heard the case but not yet delivered its decision, Article 50 of the TRIPs Agreement is applicable to the extent that the infringement of intellectual property rights continues beyond the date on which the TRIPs Agreement became applicable with regard to the Community and the Member States.

( see para. 50 and operative part 1 )

2. The procedural requirements of Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as set out in Annex 1 C to the Agreement establishing the World Trade Organisation, and in particular Article 50(6), are not such as to create rights upon which individuals may rely directly before the Community courts and the courts of the Member States. Nevertheless, where the judicial authorities are called upon to apply national rules with a view to ordering provisional measures for the protection of intellectual property rights falling within a field to which the TRIPs Agreement applies and in respect of which the Community has already legislated, they are required to do so as far as possible in the light of the wording and purpose of Article 50(6) of the TRIPs Agreement, taking account, more particularly, of all the circumstances of the case before them, so as to ensure that a balance is struck between the competing rights and obligations of the intellectual property right holder and of the defendant.

( see para. 55 and operative part 2 )

3. Article 50(6) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as set out in Annex 1 C to the Agreement establishing the World Trade Organisation, is to be interpreted as meaning that a request by the defendant is necessary in order for the provisional measures ordered by way of interim relief to lapse on the ground that no substantive action has been brought either within the period prescribed in the provisional measures or, where no period is prescribed, within 20 working days or 31 calendar days, whichever is the longer period.

In the absence of any provision in the TRIPs Agreement concerning the point in time at which the period of 20 working days or 31 calendar days prescribed by Article 50(6) of that agreement is to start, it is for each contracting party to determine when that period is to start, provided always that it is reasonable having regard to the circumstances of each case and taking into account the balance to be struck between the competing rights and obligations of the intellectual property right holder and of the defendant.

Moreover, in the absence of any Community rule on the point and in accordance with Article 1(1) of the TRIPs Agreement, it is for each Member State to determine the limits of the powers of the judicial authorities in ordering provisional measures. Article 50(6) of the TRIPs Agreement neither requires nor forbids the legal order of a Member State to provide, where appropriate, that its judicial authorities are to determine of their own motion the period within which substantive proceedings are to be instituted at the same time as ordering provisional measures, without any request by the defendant being necessary for that purpose.

Lastly, Article 50(6) of the TRIPs Agreement neither requires nor forbids the Member States to provide, where appropriate, that its judicial authorities are to determine of their own motion the period within which substantive proceedings are to be instituted. Since the provision in question is silent on that point, the scope of the powers conferred on appellate courts in that regard falls within the competence of each Member State.

( see paras 61, 66, 70, 73 and operative part 3-6 )

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