Observancia de los derechos de propiedad intelectual
9. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they fail to suspend the release into free circulation of goods which infringe intellectual property rights with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Questions 9 to 11 concern the liability of the competent authorities towards the right-owners or the importers in case of failure to suspend the release of infringing goods or the suspension of release of non-infringing goods, respectively. As mentioned above, decisions on the suspension of the release of infringing goods are taken by the National Customs Board and then the respective local customs authority has to implement those decisions. When taking such decisions the authorities obviously have to apply the law and to make their own judgement on the merits of the case as far as the suspension issue is concerned. Failure to take or implement such decisions may, depending on the circumstances, result in criminal liability for the officials concerned, an obligation to pay damages to the applicant, etc., like in other cases where authorities fail in one way or another to act according to what the law prescribes. It should be underlined that the decision on the question of whether an infringement actually has occurred and which measures to take with the goods is a matter for the Courts and not for the administrative authorities and the decision of the Courts (concerning the release, change or destruction of the goods) has then to be implemented by the customs authorities. The above-mentioned Act prescribes that the storage of the goods whose suspension has been decided by the customs authorities has to be carried out at the expense of the applicant. Where a final decision is taken to the effect that the goods shall be destroyed or that other measures shall be taken as regards the goods, the applicant has a right to compensation from the person or persons against whom the decision has effect.