Intellectual Property Enforcement

Intellectual Property Enforcement

A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)

Elgar Commentaries series

Michael Blakeney

This important book is the first detailed analytical treatment of the Anti-Counterfeiting Trade Agreement (ACTA) and its impact on intellectual property enforcement. The ACTA had been formulated to deal with the burgeoning growth in the trade in counterfeit and pirate products which was estimated to have increased ten-fold since the promulgation of the TRIPS Agreement in 1994. The book clarifies how the ACTA supplements the enforcement provisions of the TRIPS Agreement, namely by: expanding the reach of border protection to infringing goods in transit; providing greater detail of the implementation of civil enforcement and; providing for the confiscation of the proceeds of intellectual property crimes. As the book illustrates, a significant additional innovation is the introduction of provisions dealing with enforcement of intellectual property rights in the digital environment.

Chapter 2: Negotiating ACTA

Michael Blakeney

Subjects: law - academic, intellectual property law, law -professional, intellectual property law


THE EMERGENCE OF IP ENFORCEMENT AS A GATT ISSUE Concern with the impact of counterfeiting piracy upon international trade dates back to the late 1970s. The explosion in the counterfeiting of branded goods and the perceived inability of the UN’s specialist intellectual property agency, the World Intellectual Property Organization (WIPO), to deal with this burgeoning trade precipitated the search for a more effective alternative agency. The initiative appears to have been taken in the spring of 1978 by the Levi Strauss Corporation after the success of its representations to US Customs to strengthen procedures against imports of counterfeits of its trademarked denim jeans. Apparently ‘encouraged by the adoption of codes of agreement during the Tokyo Round of GATT negotiations, the company banded together with a group of trademark-sensitive firms and pressed for an anti-counterfeiting code.’1 At that time the International Anti-counterfeiting Coalition (IACC) was formed2 as a Washington, DC-based non-profit organization to combat product counterfeiting.3 William Walker, the original counsel to the IACC, reported that: A decision was made at the outset of the Levi Strauss deliberations in the spring of 1978 to pursue stronger sanctions against overseas trade in counterfeit merchandise through formal international agreement among governments and it was felt that a multilateral negotiation was preferable to multiple bilateral efforts. In seeking suitable 1 P. Doremus, ‘The Externalisation of Domestic Regulation: Intellectual Property Rights Reform in a Global Era’, (1995–1996) 3 Indiana Journal of Global Legal Studies 341 at p.357. 2 The exact date of the formation...

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