국경조치(Border Measures)의 관할기관

Article 51 of the TRIPs Agreement explicitly requires members shall, in conformity with the provisions set out below, adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods. However, the meaning of the “competent authorities” is not clear. One thing clear is that the agreement does not require member states to designate the customs authorities as the competent authorities which is the proper agency to accept applications for border enforcement. While the discussion below is limited to border enforcement. especially the competent authorities, IPR owners must be aware that the IPR border enforcement measures are part of a broad and often complicated enforcement system. The competent authorities of the border measures other independent authorities other than the customs authority. The TRIPs Agreement clearly differentiates the competent authorities from the customs office; the independent authorities provide more efficient enforcement. In 2004, Korea argued that Japanese border enforcement system in which the customs office had the jurisdiction violated GATT/TRIPs. Before the approval by the Congress, which authority should be the judgement authority of border measures must be discussed. In addition, the judgement authorities and enforcement authorities should be separated.