SRI LANKA Law and Practice Contributed by: Anomi Wanigasekera, Sabeera Shariff and Saambavi Siththananthan, Julius & Creasy
they were engaged in infringing activity, the court may limit damages to the profits of the infringer attributable to the infringement or to pre-established damages. (See Section 22 (2)(b).) 10.3 Attorneys’ Fees and Costs In a civil action, the court may award costs at the con - clusion of the suit. Generally, taxed costs are granted, which will be calculated according to the provided structure. In a criminal action, the court may order costs to be paid to the accused by the prosecutor or to the pros - ecutor by the accused, having regard to the informa - tion given by, and the conduct of, the accused and prosecutor, respectively; the sum so awarded as costs shall be recoverable as if it were a fine. See 10.2 Monetary Remedies regarding copyright infringement. 10.4 Ex Parte Relief As mentioned in 10.1 Injunctive Remedies , under Sri Lankan law an enjoining order can be obtained ex par - te, which will be valid for 14 days if there is an urgency to restrain the infringer and the continuance of the infringing act as soon as possible. This will operate through continuous extensions, obtained until deter - mination of an interim injunction is made after an inter partes inquiry. The provisions of the Civil Procedure Code and the Judicature Act will apply. 10.5 Customs Seizures of Counterfeits or Parallel Imports Trade marks registered with the NIPO can be recorded with customs. Two new sections have been introduced into the Customs Ordinance – eg, Section 125A and 125B for prohibiting importation and exportation of counterfeit trade mark goods, pirated copyright goods or any other goods in contravention of the provisions of the IP Act. The Sections are briefly summarised as follows: • 125A(1) – the importation of counterfeit trade mark goods, pirated copyright goods or any other goods
in contravention of the provisions of the IP Act shall be prohibited, and such goods shall be included among the goods the importation of which are pro - hibited under Section 43 of the Customs Ordinance and included in Schedule B of the Ordinance as prohibited goods; • 125A(2) – the exportation of the goods referred to above in this Section shall be prohibited, and such goods shall be included among the goods the exportation of which are prohibited as if they were referred to in Section 44 of the Customs Ordinance and included in Schedule B of the Ordinance as prohibited goods; • 125A(3) – the prohibited goods referred to above shall be disposed of outside the channels of com - merce or, if such disposal damages the interests of the owner of any right protected under the IP Act, shall be destroyed; and • 125B(1) – a right-holder, who has valid grounds to believe that the importation of counterfeit trade mark goods, pirated copyright goods or any other goods in contravention of the right-holder’s rights under the IP Act is taking place, may make an application in writing to the Director-General of customs, requiring him to suspend the release of such goods into free circulation. Customs officials have the power to act ex officio as well as on a complaint made. The provisions of Sections 125A and 125B shall not apply to small quantities of goods of a non-commer - cial nature contained in a traveller’s personal luggage or forwarded in small consignments. Parallel imports are not illegal as long as the goods are original and have not undergone any change.
11. Appeal 11.1 Appellate Procedure
Any person who is dissatisfied with any order made by the Commercial High Court may prefer an appeal to the Supreme Court against such order for the cor - rection of any error in fact or in law, with the leave of the Supreme Court first being obtained. The petition has to be filed with 14 days calculated, excluding the
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