• Shirin Syed
• Dr. Sajeda Sultana Jayafuddin Shaikh.

It was argued/complained by developed countries that earlier agreements like Paris and Berne conventions that it lacked effective enforcement and remedial measures for intellectual property rights , particularly in developing countries. The establishment of detailed rules on enforcement of IPRs was advocated in GATT negotiations by the USA and EC, they, in their independent submissions, reflecting the views of the business community advocated for stricter enforcement and liberal remedies to the IP owner in case of infringement.Adequate standards of IPR protection, they argued, were of little value if the conferred rights could not be effectively enforced. As a result of this, TRIPS deals not with the availability of rights, but also with stricter enforcement and (expedite?) remedies. While most IP experts have focused on TRIPS flexibilities in Parts I and II and VI, the provisions in Part III on enforcement are quite important.Exceptions and limitations can be implemented as limitations on remedies to rights, including in particular limits on damages or injunctions. The enforcement and maintenance provisions incorporated in the final version of TRIPS are influenced or to say identical to those in the Brussels Draft. This incorporation of interests of the developed nations has far reaching implications for the developing countries due to significant differences in the enforcement rules and remedies existed in the socio economic and legal systems(national laws) as they lacked the infrastructure and resources to apply these ‘higher standards’ for the enforcement of remedies. Due to the wide differences that existed in national laws with regard to enforcement rules, Part III of TRIPS does not attempt to harmonise such rules but to establish general standards to be implemented according to the method deter- mined by each Member, in line with the general principle set forth in Article 1.1 Article 41.1 introduces the need for balancing the interest of title-holders, alleged infringers and the public interest.It also requires Members to take action to avoid abuses of enforcement procedures. Such abuses may equally create barriers to legitimate trade or impose other burdens on the public or competitors. For instance, there is evidence of “strategic litigation” by large companies (often based on weak or invalid titles) targeted at small and medium companies which cannot bear the high costs and lengthy procedures involved in IPR litigation. Article 41.2 prescribes a rather general but important obligation: procedures concerning the enforcement of IPRs must be “fair and equitable”. It then indicates, although vaguely, undesirable elements that could presumably make a procedure unfair or inequitable, based on complexity, costs, time-limits and duration. Article 44 deals with injunctions to be adopted when an infringement has been established. It also follows the “judicial authorities shall have the authority” formulation, in this case to order a party to desist from an infringement. It provides an important exception where infringing matter is innocently acquired, Members are free to refuse an injunction and allow the bona fide acquirer to use or further dispose of the infringing subject matter. Article 44.2 explicitly excludes the granting of injunctions for cases of government use and compulsory licenses and Members have considerable leeway to determine “adequate” compensation. Article 45.1, dealing withe damages, requires the judicial authorities to have the power to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered. However, an infringer who did not know, or had no reasonable grounds to know, that he engaged in infringing activity is not required to pay damages, whatever the nature of his offence.Article 45.2 indicates that damages apply even where the infringer did not knowingly, or had no reasonable grounds to know s/he did, engage in infringing activity. But this extensive remedies need not necessarily be fulfilled by the Member state.Hence, a Member may provide for the recovery of profits or pre-established damages but limit these measures to culpable and negligent infringers only. An analysis of the aboveTRIPS provisions indicates that while many provisions were weakened and some measures were left at the discretion of the Members, the USA and the EC largely imposed their own conception of the subject. The extent to which the legitimate interests for using the flexibilities by developing countries receives due attention in the course of implementing ip remedies is a matter of debate. It is to be looked upon how far the developing nations can utilise the flexibilities under TRIPS in order to move away from stricter implementation of IP remedies (and enforcement).

Intellectual Property, TRIPS Flexibilities, Enforcement, Injunctions, Patents.

"Intellectual Property(IP) Remedies and TRIPS Flexibilities with Special Reference to Damages and Injunctions.", International Journal of Emerging Technologies and Innovative Research (www.jetir.org), ISSN:2349-5162, Vol.6, Issue 6, page no.210-216, June 2019, Available :http://www.jetir.org/papers/JETIR1907K32.pdf

"Intellectual Property(IP) Remedies and TRIPS Flexibilities with Special Reference to Damages and Injunctions.", International Journal of Emerging Technologies and Innovative Research (www.jetir.org | UGC and issn Approved), ISSN:2349-5162, Vol.6, Issue 6, page no. pp210-216, June 2019, Available at : http://www.jetir.org/papers/JETIR1907K32.pdf