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
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 Party’s law,
declaratory judgments and adequate compensation 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 activity 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 Party’s judicial
authorities shall have the authority to consider, inter alia, 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 shall provide that, in civil judicial proceedings, its judicial
authorities have the authority to order the infringer to pay the right holder the infringer’ s
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 least 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
(b) presumptions 3 for 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
3 The presumptions referred to in subparagraph 3(b) may include a presumption that the amount of
damages is: (i) the quantity of the goods infringing the right holder’s 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 been 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.
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