Cap. 488 Art. 6Measures preserving evidence.

(1) The competent Court may, even before the commencement of proceedings on the merits of the case, upon an application by a person who has filed reasonably available evidence to support his claim that his intellectual property right has been infringed or is about to be infringed, order such prompt and effective provisional measures as it considers appropriate to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information. Such measures may include the detailed description, with or without the taking of samples or the physical seizure of the infringing goods and, in appropriate cases, the materials and implements used in the production and, or distribution of the said goods and the documents relating thereto. The competent Court may also, if it considers it necessary, order that such measures be taken without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the rightholders or where the Court considers that there is an evident risk of the evidence being destroyed.

(2) When measures to preserve evidence are adopted without the other party having been heard, the parties affected shall be given notice without delay after the execution of the measures. A review, including a right to be heard by the Court, shall take place upon request by application of any of the parties affected with a view to deciding, within a reasonable period after the notification of the measures, whether the measures shall be modified, revoked or confirmed.

(4) Measures to preserve evidence shall be revoked by the Court upon the request made by application of the person against whom such measures were taken, without prejudice to the damages which may be claimed, if the applicant at whose instance such measures were taken fails, within thirty-one days from the issuing of such measures, to institute proceedings leading to a decision on the merits of the case before the competent Court.

(5) Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission by the applicant or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the competent Court may order the applicant, upon the request of the person against whom such measures are directed, to provide such person with appropriate compensation for the damages caused by those measures as may be liquidated by the Court.

(6) In considering cases and applications made in terms of this Act, the competent Court may also take such measures as it may consider appropriate for the purpose of protecting the identity of witnesses, subject to respect for the right to a fair trial.

(7) In the course of proceedings involving an application for measures to preserve evidence, the Court shall take any measures that it deems necessary to protect the identity of witnesses.