États-Unis d'Amérique
Moyens de faire respecter les DPI
28. Please describe in detail the provisional procedures and remedies available to right holders under the laws of Antigua and Barbuda, citing to the relevant provisions of law and regulation, and indicate any condition under which a right holder may avail itself of those procedures and remedies.
The Bills as drafted contain provisions that deal specifically with the procedure and remedies available to them in the instance of an infringement, where there is a battle over who is entitled to the registration of the particular intellectual property, or any other instances where the right holder feels that his rights are being violated. The High Court of Justice has the jurisdiction to hear matters on infringement as seen in section 2 of the various draft Bills where the "court" is defined as the High Court. In the Integrated Circuit Topography Bill, according to section 8 of the Bill, an action for infringement of the exclusive right in a registered topography may be brought in any court of competent jurisdiction by the owner of the registered topography or by a licensee of any right therein, subject to any agreement between the licensee and the owner; section 9 spells out the remedies available in the case of an infringement where the Court may make specific orders for: "relief by way of injunction, the payment of royalties and the recovery of damages or profits, for punitive damages, and for the disposal of any infringing integrated circuit product or any article of which an infringing integrated circuit product forms a part." Section 10 goes on to deal with the remedies in the case of innocent infringement where the infringer: "… will not be liable for royalties, damages, profits or punitive damages in respect of any dealings with the integrated circuit product prior to the time when the defendant had actual knowledge that the product was manufactured and sold for the first time without the consent of the owner; and (c) shall have the right to dispose of any inventory of the integrated circuit product or of the article of which the integrated circuit product forms a part that was acquired before the defendant had that knowledge, subject to the condition that the defendant pay a reasonable royalty in respect of that inventory in such amount and at such time as the court may determine." Under the Geographical Indications Bill, any interested person and any interested group of producers or consumers may institute proceedings in the Court to prevent, in respect of geographical indication, any illegal use of the geographical indication within the scope of section 3 of the Bill. In proceedings under this section, the Court may, in addition to issuing an injunction, award damages and grant any other remedy or relief as it may deem fit. In all the provisions the persons who have access to the remedies available must come within the scope of the legislation. For instance, under the Patent Bill, only the person who is granted a patent in accordance with sections 4 (deals with the right to a patent), 9 and 10, or who has a licence to use the patent has the right to bring an action in Court under section 34(2). The provisions tend to be generally the same in all the Bills as pointed out above; however in the Copyright Bill, the provisions examine the available remedies, which include confiscation and destruction of illicit products, and the order for delivery up of the goods (see sections 33, 46 and 137), payment of damages and damages, injunctions, and accounts (see section 32), payment of fines and imprisonment in the criminal cases where it becomes an offence (section 134). The Eastern Caribbean Supreme Court Rules 2000 governs procedure to initiate an action in Court under the relevant statutes in conjunction with the any provisions governing such procedure under the relevant Regulations, which are in the process of being drafted. The person, who is applying for an interim remedy such as an injunction, has to apply in accordance with Rule 17.4. The application must be supported by evidence on affidavit unless the Court otherwise orders. The Court may order an interim remedy on such an application without notice if it appears to the Court that there are good reasons for not giving notice. The application in this instance must state the reasons for not giving notice (R. 17.3(3)). In general, three days notice must be given to the respondent. The Court will hear this matter immediately the application is filed, and it may grant an interim order on an application made without notice for a period of not more than 28 days (unless any of the rules permits a longer period) if it is satisfied that: "17.4(4) (a) in a case of urgency no notice is possible; or (b) that to give notice would defeat the purpose of the application." On granting an order under paragraph (4) the Court must fix a date for further consideration of the application form, and fix a date on which the injunction, for instance, will terminate unless a further order is made on the further consideration of the application (5). Paragraph (6) of this rule gives a time period of 7 days within which the applicant must serve the respondent before the date fixed for further consideration of the application. Other remedies include equitable remedies such as an "Anton Piller order", where the respondent is required to admit to its premises, as named in the order, persons named in the order and supervised by an independent attorney to search for and take into custody any document and things of the type specified in the order in order to preserve such as evidence for a trial. The respondent is usually enjoined from activity likely to be an infringement of the stated intellectual property right and is required to make an affidavit disclosing the source of the articles that have already left the premises. The Criminal Procedure Act (Cap. 117 of the Revised Laws of Antigua and Barbuda 1992) governs any procedure for criminal action initiated under the relevant statutes on intellectual property.