The Courts which would have jurisdiction would be the High Court and the Magistrates Courts. The value of the goods forming the subject-matter of any action before such Court would generally determine which Court would have jurisdiction to hear the matter.

Where Court action is not taken within the prescribed 3 or 10-day period, counterfeit goods which have been seized by an inspector must be released. Where infringement proceedings have been instituted by an applicant, and the applicants claim has been dismissed by the Court, the Court, on the application of the erstwhile respondent or any other interested person claiming to be entitled to the goods, may order that such goods be released, respectively, to the erstwhile respondent or such interested person who has proved his or her entitlement thereto. The normal process of the Courts may be utilized to review or modify an order. Section 4 of the Counterfeit Goods Act, 1997 refers in this regard.

Section 17(1) of the Counterfeit Goods Act provides: "Any person suffering damage or loss caused by the wrongful seizure, removal or detention of goods alleged to be counterfeit goods, or by any action contemplated in section 7(1)(a), (b) or (c) or (2) wrongfully taken by an inspector with reliance on that section read with section 4(a), or caused during or pursuant to the seizure, removal or detention of such goods in terms of this Act, will be entitled to claim compensation for that damage or loss which claim, subject to subsection (2), will be against the complainant and not against the State, the inspector or the person in charge of the counterfeit goods depot where those goods are or were detained."

Section 8 of the Counterfeit Goods Act provides: "(1) Goods that have been seized in terms of Section 4(1) must be stored and kept in safe custody at a counterfeit goods depot until the person in charge of the depot: (a) is ordered by a competent Court in terms of this Act to return, release, destroy or otherwise dispose of those goods as specified in the order; or (b) is directed by the inspector concerned, in the circumstances provided for in subsections (1)(b) or (2)(a),(b) or (c) of Section 9, to release those goods to the suspect. "(2) Goods seized in terms of Section 4(1) will be available for inspection by the complainant, or as the case may be prospective complainant (if any) the suspect and any other interested person at the counterfeit goods depot on any working day during normal office hours. "(3) The person in charge of the counterfeit goods depot, on the request of the complainant or prospective complainant (as the case may be) or the suspect, must make the relevant seized goods available for testing or analysis by or on behalf of any such complainant or the suspect if the person so in charge, having taken into account the nature of such seized goods, the nature of the tests or analyses to be conducted, and the competence and suitability of the person by whom the tests or analyses are to be conducted, is satisfied that a request in that regard is reasonable. "(4) The person in charge of a counterfeit goods depot who is not willing to allow seized goods under his or her custody to be made available to the suspect for testing or analysis by any person or by a particular person, must forthwith refer the matter to the complainant or prospective complainant (as the case may be) who must either confirm or reverse that decision within 48 hours. "(5)(a) Where any such complainant has confirmed the decision not to allow the seized goods to be made available to the suspect for testing or analysis, that decision must be conveyed in writing to the suspect who may apply to the Court for an order rescinding the decision and allowing those goods to be made so available (b) The Court will grant the application if it finds the decision to be unreasonable in the circumstances." Seized goods to be released if criminal investigation or criminal or civil proceedings not contemplated against suspect.

Section 10(1)(d) of the Counterfeit Goods Act provides: "… that the accused or the defendant or respondent (as the case may be) discloses the source from which those goods, if found to be counterfeit goods, have been obtained, as well as the identity of the persons involved or ostensibly involved in the importation, exportation, manufacture, production or making and distribution of the counterfeit goods and in the channels of distribution of those goods."

Section 3(4) of the Counterfeit Goods Act provides: "The preceding provisions of this section do not preclude an inspector from taking any appropriate steps in terms of Section 4(1) on his or her own initiative in relation to any act or conduct believed or suspected to be an act of dealing in counterfeit goods, provided the requirements of that section are met." The affected areas of intellectual property are trademarks and copyright.

Section 20(1) of the Counterfeit Goods Act provides: "Subject to Section 10, the Court having convicted a person of an offence contemplated in Section 2(2) may declare the counterfeit goods in question to be forfeited to the State or order that those goods and their packaging, and where applicable any tools that were used by or on behalf of the convicted person for the manufacturing, production or making of those or any other counterfeit goods or for the unlawful application to goods of the subject matter of any intellectual property right, be destroyed."

(a) Section 20(1) of the Counterfeit Goods Act provides for the Court to order the destruction or disposal of the goods outside the stream of commerce. (b) The destruction or disposal of the goods is usually left to the discretion of the successful applicant.

The South African courts do recognize the de minimis principle. The legislature has left it to the Courts to determine what constitutes a small quantity which is negligible.

The lower/Magistrate Courts and the High Court have jurisdiction in respect of criminal acts involving infringement of intellectual property rights. Criminal procedures and penalties are available in the case of copyright infringement. Section 27 of the Copyright Act reads as follows: "27(1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright: (a) makes for sale or hire; (b) sells or lets for hire or by way of trade offers or exposes for sale or hire; (c) by way of trade exhibits in public; (d) imports into the Republic otherwise than for his private or domestic use; (e) distributes for purposes of trade; or (f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringed copies of the work, shall be guilty of an offence. "(2) Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence. "(3) Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright, shall be guilty of an offence. "(4) Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such broadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence. "(5) Any person who causes programme-carrying signals to be distributed by a distributor for whom they were not intended knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright, shall be guilty of an offence. "(6) A person convicted of an offence under this section shall be liable: (a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates; (b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates." Any inspector, i.e. any person so appointed in terms of the Counterfeit Goods Act; a police official; Commissioner of Customs and Excise may initiate criminal proceedings. Any of these officers may act on their own initiative as well as in response to a complaint from a person entitled to lay such a complaint. However, where an officer has acted of his own initiative, he must procure a complainant otherwise the goods must be released. In terms of the Counterfeit Goods Act, private persons do have standing to initiate criminal proceedings. The Act grants such right to any person having an interest in the protected goods, either as an owner/licensee of the intellectual property rights; importer; exporter/distributor and any authorized agent or attorney of such person. Conviction on a charge of criminal copyright infringement can lead to the imposition of both imprisonment and monetary fines. In the case of a first offence, the Copyright Act imposes a maximum prison sentence of three years or a penalty of R 5,000.00, or both for each infringing article; in the case of a subsequent conviction these maxima are increased to five years imprisonment and R 10,000.00 per infringing article.

Please see the reply to question 55 above.

Please see the reply to question 55 above.

Please see the reply to question 55 above.

Statistical data on the aspects requested is not available in collated format.

Statistical data on the aspects requested is not available in collated format.

Section 15c of the Medicines and Related Substances Control Amendment Act empowers the Minister of Health to authorize the parallel importation of patented medicines under certain circumstances. This is an enabling provision and it must be noted that a holder's right to enforce its rights against unauthorized imports of a patented product will only be affected in those instances where this provision is invoked.

It is not clear to what "publicly available data" the European Communities refer in asserting that enforcement actions in Federal courts "typically" require several years to reach a final judgment and that costs, including attorneys' fees, "often" reach US$1 million or more. By not providing citations to or copies of the "publicly available data" referred to, the European Communities preclude the United States Government from considering the source and the material and responding. With regard to information on average costs and duration of legal actions, it should be noted that, under the United States judicial system, US district courts have original jurisdiction over enforcement actions regarding copyrights, patents, plant variety protection, trademarks and integrated circuit layout designs. Jurisdiction over enforcement actions involving geographical indications and trade secrets is shared between the Federal district courts and the state courts depending on a variety of factors. The Administrative Office of the United States Courts (the Administrative Office), which compiles statistics on activities of Federal courts, provides statistical information only on the number of cases filed annually involving patents, copyrights and trademarks (see table 1 below) and the number of cases terminated in a given year involving those same topics (see table 2 below), indicating at what stage of the process the case was terminated. The figures in table 1 below indicate, however, that right holders make frequent use of temporary restraining orders, preliminary injunctions, ex parte seizures and other provisional remedies in cases enforcing intellectual property rights, so that only a small percentage of cases filed proceeds to final judgment. Tracking individual intellectual property cases from filing to termination in order to determine the average time required to reach final judgment would be very costly. In addition, the duration of cases is affected significantly by the parties themselves and there would be no means for determining what periods were attributable to the courts and what periods were the fault of the parties. The Administrative Office does not keep a record of the cost of litigation. Parties do not provide information on attorneys' fees, cost of experts, etc. to the Administrative Office, and would not likely do so if asked, because such information is generally regarded as confidential, except when costs are being claimed. Fees charged by attorneys are not set by government nor does the government place any arbitrary limits on the number of practising attorneys. Fees vary from location to location, firm to firm, attorney to attorney, and task to task and are often subject to negotiation. Under these circumstances, even estimates of the costs of litigation would be unreliable. For all of these reasons, it is not possible to provide data on the average duration or cost of proceedings concerned with the enforcement of intellectual property rights in the United States. The data regarding termination of cases for the year ending 30 June 1997, however, would indicate that a majority of cases are resolved during the discovery phase (before pre-trial), since discovery provides each side with information allowing it to evaluate its position and the likelihood of success on the merits of the case. Many others are resolved before action begins as a result of negotiations. Table 1 [Part of the response is in Table format ] Table 2 [Part of the response is in Table format ]

Published articles regarding the cost and duration of legal proceedings in US Federal and state courts do exist, but they have not been prepared by the US Government and therefore, the US Government is not in a position to "confirm" that any "data on the actual duration or cost of proceedings concerned with the enforcement of intellectual property rights" contained in those articles are accurate or that the conclusions reached by the authors are valid. Regarding the tables attached to the EC’s follow up questions, the AIPLA's "Report of Economic Survey 1997", as its title indicates, is not a "study." Quoting from the introduction to the Report, "The survey reports on incomes and related characteristics of individual practitioners and addresses other economic aspects of intellectual property law practice. " In January 1997, the AIPLA mailed survey questionnaires to its 8,048 members and sent reminder post cards in February. Responses were received from 1,638 individual practitioners and 293 law firms. The first line of each portion of the tables attached to the follow up questions by the EC indicates the number of persons and firms supplying estimates from which the percentiles in that particular portion were compiled. The introduction notes that "percentiles based on fewer than 50 responses should be assumed to have relatively wide margins of error". The figures shown in the tables, as indicated in the table headings, reflect estimates provided by some AIPLA members responding to the questionnaire. They are not "data on the actual duration or cost of proceedings concerned with the enforcement of intellectual property rights". AIPLA members were instructed to consider, in making their estimates, "total cost" to be "All costs, including outside legal and paralegal services, local counsel, associates, paralegals, travel and living expenses, fees and costs for court reporters, photocopies, courier services, exhibit preparation, analytical testing, expert witnesses, translators, surveys, jury advisors, and similar expenses", incurred for discovery, motions, pre trial, trial, post trial and appeal.

The United States is in full compliance with Article 41.1. Enforcement procedures as specified in Part III of the TRIPS Agreement are available so as to permit effective action against any act of infringement. Article 45 requires that damages be authorized only in situations where the infringer knew, or had reasonable grounds to know, his activity was infringing. Judges in Federal courts have such authority (for copyright, see 17 U.S.C. § 504; for trademarks, including certification marks, see 15 U.S.C. § 1117; for patents and industrial designs, see 35 U.S.C. § 284; for integrated circuit layout designs, see 17 U.S.C. § 911; and for trade secrets, refer to the appropriate state laws). US judges have the authority, required by Article 44, to enjoin infringement for the life of the relevant intellectual property right (for copyright, see 17 U.S.C. § 502; for trademarks, see 15 U.S.C. § 1116; for patents and industrial designs, see 35 U.S.C. § 283; for integrated circuit layout designs, see 17 U.S.C. § 911; and for trade secrets, see relevant state laws), and, in all but very rare cases, do so when infringement is found to exist. Most intellectual property owners bring legal actions soon after they become aware of an infringement, not seeking primarily to obtain damages for infringement that has already occurred, but to enjoin further infringement. Finally, US judges have the authority to award costs, including attorneys' fees in appropriate circumstances, as required by Article 45.2. We note that the EC question, like others it has submitted, is based upon unsupported assertions first, that "in many cases, attorneys' fees can exceed the potential damages for infringement" and second, that the first unsupported assertion deters right holders from pursuing civil enforcement actions. The United States believes that the data provided in the tables in our response to question 1, giving the number of cases filed annually, indicate that right holders are not deterred from enforcing their rights.

As stated in response to an item under EC question 7, calculation of damages is based on the evidence provided by the parties. Publicly available legal treatises discuss damages in detail in relation to each form of intellectual property, citing and quoting from relevant cases. See, for example, regarding copyright, Nimmer on Copyright, Melville B. Nimmer and David Nimmer, published by Matthew Bender; The Law of Copyright, Howard B. Abrams, Clark Boardman Callaghan publisher; regarding trademarks, McCarthy on Trademarks and Unfair Competition, Third Edition, Thomas McCarthy, Clark Boardman Callaghan; Trademark Protection and Practice, Gerome Gelson and Jeffrey M. Samuels, Matthew Bender; regarding patents and industrial designs, Lipscomb's Walker on Patents, 3rd Edition, Ernest Bainbridge Lipscomb III, Clark Boardman Callaghan; Chisum on Patents, Donald S. Chisum, Matthew Bender; and regarding trade secrets, Milgrim on Trade Secrets, Roger M. Milgrim, Matthew Bender; Trade Secrets Law, Melvin T. Jager, Clark Boardman Callaghan.