Estados Unidos de América

Sudáfrica

Observancia de los derechos de propiedad intelectual

Procedimientos y recursos civiles y administrativos

20. Article 45.1 requires that judicial and administrative officials be able to order an infringer to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please describe the authority of the judges and administrative officials identified in question 1 to order a party found to be infringing to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please explain the factors considered in establishing the amount of the compensation and cite the legal authorities authorizing such compensation orders.

In terms of the Patents Act, 1978 (as amended), the Trade Marks Act, 1993 (as amended), the Copyright Act, 1978 (as amended) and the Designs Act, 1993 (as amended), and the Rules governing procedure in the High Court and the Court of the Commissioner of Patents, these Courts are empowered, in cases of infringement, to order damages to be paid by the infringing party. All four of the Acts make provision for the award of damages (the normal basis being the actual patrimonial loss suffered) or, in lieu of damages, the payment of a reasonable royalty which would have been payable by a licensee for the use of the intellectual property right concerned. The Copyright Act also contains provisions (Section 24(3)) for the award of punitive damages. Damages may only be recovered by way of action. The Courts are also authorized to direct that an enquiry into damages is to be held for purposes of determining the amount of any damages or reasonable royalty to be paid.