To obtain a preliminary injunction, courts have generally required that the moving party demonstrate some or all of the following: a substantial likelihood that it will prevail on the merits of its case; that it will suffer irreparable injury if preliminary relief is not granted; that the threatened injury to it outweighs the harm an injunction might cause the defendant; and that the preliminary injunction will not have a serious adverse effect on the public. A temporary restraining order (TRO) may be granted by a court where it clearly appears from specific facts shown by an affidavit or by a verified complaint that immediate and irreparable injury will result before the adverse party or his attorney can be heard in opposition, and the complainant’s attorney has certified to the court, in writing, the efforts which have been made to give notice and the reasons supporting his claim that notice should not be required. See Rule 65, Federal Rules of Civil Procedure.

Security is required as a condition for obtaining a TRO or a preliminary injunction in an amount sufficient to cover costs and damages to the party wrongfully enjoined or restrained. Temporary restraining orders expire within ten days unless extended for good cause shown or if the adverse party consents to a longer period. A motion for preliminary injunction must be scheduled for a hearing at the earliest possible time and, the party obtaining the TRO does not proceed with the request for preliminary injunctions, the TRO will be dissolved. See Rule 65, Federal Rules of Civil Procedure. The function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. The scope of the preliminary injunction depends upon the facts of the particular dispute.

Because the factors influencing the cost and time of obtaining relief, permanent or preliminary, are so many and varied, the US Government cannot provide estimates.

The United States amended Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, as part of our implementation of the Uruguay Round results. As stated in the "Statement of Administrative Action" accompanying the Uruguay Round Agreements Act, those amendments bring US procedures into conformity with national treatment obligations under GATT 1994, while providing for effective enforcement of intellectual property rights at the border. Moreover, the procedures applied under Section 337 fully comply with Article 49 of the TRIPS Agreement in that they "conform to principles equivalent in substance to those set forth" in Section 2 of the TRIPS Agreement. For example, each element of Articles 41 and 42 of the TRIPS Agreement are met in the context of a Section 337 proceeding. The TRIPS Agreement, negotiated after a panel report was issued finding that certain aspects of Section 337 were inconsistent with Article III of GATT 1947, recognizes that it may be necessary to treat domestic and imported products differently to enforce intellectual property rights effectively in respect of imported goods. The 1994 amendments to Section 337 made the following changes to USITC procedures to implement the panel’s recommendations: - Elimination of the requirement that the USITC issue a final determination within a fixed period of time. Instead, the amendment provides that the ITC must complete its investigation "at the earliest practicable time". To promote rapid adjudication, the USITC must establish a "target date" for completion of an investigation within 45 days after it is initiated. These requirements parallel the procedures set out in recently revised Rule 16 of the Federal Rules of Civil Procedure providing district courts with various mechanisms for expediting litigation. They are also consistent with district court efforts to avoid delay, such as by establishing target dates for the completion of various stages of litigation; - Means to prevent infringement proceedings being brought against imported goods in two forums at the same time. A district court hearing an infringement case is required to stay its proceedings, at the request of a respondent in a Section 337 proceeding, in respect of any claim that involves the same issues as those pending before the ITC. Such issues would include questions of patent validity, infringement, and any defences that might be raised in both proceedings. The district court may use its discretionary authority to stay any other claims in the case.

To the degree that such information is available, we have.

As noted in the question itself, works in respect of which copyright has been restored in the United States receive protection automatically without the need for compliance with any formality. 17 U.S.C. § 104A(a)(1)(A). The European Communities and their Member States are incorrect, however, that enforcement of this protection generally requires compliance with the "notice of intent to enforce" procedures set out in the law. Service of a notice of intent to enforce is required only with respect to a claim against a person who used the work in certain ways prior to restoration-a "reliance party", as defined in the Copyright Act (§104(h)(4)) and only if the copyright owner has not filed such a notice with the Copyright Office within the two-year period set out in the Act (§104A(d)(2)(A)). As to all other users of restored works - the vast majority of infringement claims - the copyright owner can proceed with an infringement case in the same manner and to the same extent as for a newly created work. See §104A(d)(1) (Enforcement of Copyright in Restored Works in the Absence of a Reliance Party). Accordingly, the "notice of intent to enforce" procedures apply only in a narrow category of circumstances. As explained by the United States in response to question 5 from the European Communities and their Member States in connection with the July 1996 TRIPS Council Review of Copyright Legislation, this approach to restoration of works in the public domain is fully consistent with the requirements of Berne Article 18 and Articles 9 and 14.6 of the TRIPS Agreement, as a reasonable and limited "condition of application" of the principle of retroactive protection, to deal with the special situation of those who have in the past invested in the use of material then in the public domain. In response to the request for a description in the second paragraph of the question, the conditions in which infringement actions may be brought with respect to restored works, the evidence available to the copyright owner, and the sanctions that may be imposed on infringers, are all identical to those involved with respect to any other copyrighted work. Finally, the United States disagrees with the question's characterization of the notice procedure as "long, complex and costly". The procedure could not be simpler or more inexpensive. It merely entails sending a short statement on a piece of paper, in no particular format, signed by the copyright owner. The statement must set out the basic facts necessary to indicate a claim: the work's title (including a translation or alternative titles), the address and telephone number of the copyright owner, the use to which the copyright owner objects, and, in the case of a derivative work based on the restored work, an identification of that derivative work. While service of a notice does necessitate locating the reliance party in the United States, this is no more difficult than identifying any infringer located in another country.

The following table indicates the stages at which cases in US Federal courts involving copyrights, patents, and trademarks were terminated for the twelve months ending 30 June 1997. [Part of the response is in Table format] The data indicate that the vast majority of cases are resolved through settlement before action begins or during the discovery phase. Discovery provides each side with information allowing it to evaluate its position and the likelihood of success if it pursues action on the merits of the case. Resolution in this manner is desirable and, since it comes about as a result of decisions of the parties themselves, justice is served.

There is no absolute obligation for a right owner to appear in court and testify to demonstrate the existence of a particular form of intellectual property or of its ownership. Other evidence, including documents, affidavits, the testimony of other parties etc., can often be substituted for personal appearances by the right owner. US law does contain some "proof facilitation provisions". Copyrights: See 17 U.S.C. § 410 under which a copyright certificate of registration made before or within five years after first publication constitutes prima facie evidence of the validity of the copyright and of the facts stated in the certificate, including the name of the copyright claimant. Trademarks: See 15 U.S.C. § 1057(b) under which a trademark certificate of registration on the principal register serves as prima facie evidence of validity of the registered mark and of the registrant’s ownership of the mark. Patents: See 35 U.S.C. § 282 under which patents are presumed to be valid. Integrated Circuit Layout-Designs: See 17 U.S.C. § 908(f) under which the certificate of registration of a mask work constitutes prima facie evidence of the facts stated in the certificate, including the name of the claimant. Trade Secrets: There is no presumption in relation to trade secrets since the existence of a trade secret is a matter of proof.

It is not completely clear what is meant by "a charge" being laid. We interpret it to mean a criminal charge or indictment has been made against the person whose property is being seized. Section 509 of the Copyright Act, 17 U.S.C. § 509, provides for the seizure and forfeiture of infringing copies and articles of infringement used in criminal copyright infringement. The seizures are performed by agents, officials or persons authorized by the US Attorney General. These procedures can be instituted upon the government's showing of probable cause; a criminal indictment or criminal conviction is not required.

The US Department of Justice enforces the criminal provisions of US intellectual property laws. It deals with all enforcement of federal criminal laws, not just those dealing with intellectual property, but it does have specialists within the Department who deal with violations involving intellectual property.

See reply to question 2 above.

In the case of copyrights, 17 U.S.C. § 504(c) provides statutory damages, which a copyright owner may elect instead of actual damages. For each work infringed, the minimum amount that can be awarded under the section, based on the circumstances, is US$200 and the maximum is US$100,000. As apparent from the amounts, judges have considerable discretion in determining the actual amount awarded and, therefore, would not likely consider their discretion unreasonably curtailed. In the case of patents, damages may not be less than a reasonable royalty for the use made of the invention by the infringer if the infringer had notice that the invention in question was patented. A substantial amount of discretion is involved in determining what would be a "reasonable royalty". See 35 U.S.C. §§ 284 and 287.

In the case of copyright, yes. Section 506(a) defines criminal copyright infringement as follows: "(a) Criminal infringement - Any person who infringes a copyright wilfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18." Section 501(a) defines an "infringer of a copyright" as "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, ... , or who imports copies or phonorecords into the United States in violation of section 602, ...". The relevant part of Section 602 states that "Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501, ...". Penalties for criminal copyright infringement are set forth in 18 U.S.C. § 2319.

Under US law, "proceedings leading to a decision on the merits of a case" referred to in Article 55 of the TRIPS Agreement are customarily administrative, but parties also can proceed judicially, either initially or after they have exhausted administrative remedies.

The right holder can obtain protection for trademarks and copyrights for a period of ten years, renewable for the duration of the underlying right, by following the Customs recordation process set out in §§ 133.01 to 133.15 (regarding trademarks) and 133.31 to 133.37 (regarding copyrights) of title 19 of the Code of Federal Regulations (C.F.R.).

The period will be set out in amendments to the Customs Service's regulations that are currently under review and pending approval.

Regulations governing such proceedings are found at 19 C.F.R. §§ 133.21 through 133.23a, which govern limitations on the importation of articles bearing recorded trademarks, notice to the parties, and detention and seizure of the articles. Proceedings governing articles that infringe copyrights are found at 19 C.F.R. § 133.43, which provides for notice to importer and the copyright owner and for an opportunity for them to exchange written materials stating their views on the question of piracy and rebutting the views of the other party before the articles are submitted to Customs headquarters for a decision .

We assume that the question refers to procedures involving infringement of rights other than trademarks and copyrights, since these procedures are the basis for earlier questions. Customs does not have independent authority to detain goods that infringe patents, industrial designs, or trade secrets. The US International Trade Commission has authority under section 337 of the Tariff Act of 1930 to order the Customs Service to deny entry to goods the USITC determines are infringing such rights.

Customs officials are responsible for making their decisions in good faith in accordance with the authority granted to them by statute. Decisions of the Customs Service are reviewable in court under Chapter 7 of title 5 of the United States Code. A reviewing court can decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Section 706(1) authorizes the court to compel action that it determines has been unlawfully withheld.

See the response to question 6. Also, Customs can demand redelivery of goods violating trademarks or copyrights if appropriate, under 19 C.F.R. §§ 133.24 and 133.46 respectively.