Estados Unidos de América

Canadá

Observancia de los derechos de propiedad intelectual

Medidas provisionales

18. Articles 50.2 and 50.8 require Members to authorize judicial authorities and administrative bodies to grant provisional remedies when a delay is likely to cause "irreparable harm" to the right holder. In IP/N/6/CAN/1, Canada verifies that such authority exists. Please describe briefly what factors are considered by authorities to in determining whether "irreparable harm" to the right holder will occur. Likewise, what factors are considered in determining the "balance of convenience".

Irreparable harm cannot be adequately compensated by an award of damages, e.g., where there is serious doubt that the defendant would be able to pay any damages that might be awarded; where the loss of business would be devastating to the plaintiff and an accounting for profits would be an inadequate remedy; where the defendant enjoyed a disparate market power; or where damages would be unquantifiable. In determining the balance of convenience, the court may consider additional equitable factors, such as the effects an injunction would have on non-parties. Where the inconvenience to the plaintiff is equal to that of the defendant, the status quo should be maintained.