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 3: Preamble

Michael Blakeney

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


ROLE OF THE PREAMBLE IN THE INTERPRETATION OF ACTA ACTA is not a treaty, but in relation to the TRIPS Agreement, which is also not a treaty, the Vienna Convention on the Law of Treaties 1969 (Vienna Convention) has been called in to assist in its interpretation. The Understanding on Rules and Procedures Governing Settlement of Disputes (DSU), which deals with the resolution of disputes under the WTO Agreement,1 provides in Article 3.2 that it seeks to clarify the provisions of the agreements comprising the multilateral trading system ‘in accordance with customary rules of interpretation of public international law’. These rules are set out in Articles 31 and 32 of the Vienna Convention. In the first dispute under the TRIPS Agreement: US-India Patent Protection for Pharmaceuticals,2 the Dispute Panel stated that ‘like other provisions of the covered agreements, [it] must be interpreted in the light of (i) the ordinary meaning of its terms; (ii) the context; and (iii) its object and purpose, following the rules set out in Article 31(1) of the Vienna Convention’.3 Similarly, the Appellate Body stated that both ‘panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna Convention’.4 Article 31.1 of the Vienna Convention provides that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Article 31.2 provides...

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