Unión Europea
Observancia de los derechos de propiedad intelectual
Furthermore, could the Government of South Africa explain and give practical examples of: - how the compensation for damages of the infringement of intellectual property rights is calculated (Article 45.1 of the TRIPS Agreement); - what would be regarded as "expenses of the right holder" which have to be reimbursed pursuant to Article 45.2, first half of the first sentence, of the TRIPS Agreement and how they would be calculated; - whether attorney’s fees can be reimbursed and how such fees would be calculated; - whether Article 45.2, second sentence, of the TRIPS Agreement has been implemented in South Africa and how such "damages" would be calculated?
As regards the second part of question 6, the position is as follows: - Damages for infringement will be either actual loss proved to have been sustained, or, at the option of the plaintiff, an amount calculated on the basis of reasonable royalty which would have been payable by a licensee. See Patents Act - Section 65; Copyright Act - Section 24; Trade Marks Act - Section 34; Designs Act - Section 35. - The "expenses of the right holder" would be the actual costs incurred in the course of the legal proceedings on the basis of infringement, being appropriate attorneys' fees and actual disbursements such as the making of copies, payment of counsel's fees, etc. - Attorneys' fees can thus be reimbursed; the amount payable would be based on the applicable High Court tariff. - Article 45.2 is not peremptory. Generally speaking, "profits" or "pre-established damages" in cases of innocent infringement (i.e. where the infringer did not know or had no reasonable ground to know), will not be awarded. See Patents Act - Section 66(1); Copyright Act - Section 24(2); Designs Act - Section 35(6).