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 4: Initial Provisions and Definitions

Michael Blakeney

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


Chapter I of ACTA contains the general principles and general definitions which apply to the agreement. SECTION 1: INITIAL PROVISIONS Article 1: Relation to Other Agreements Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including the TRIPS Agreement Many of the obligations contained in ACTA have their genesis in the IPR chapters of the regional trade agreements (RTAs), free trade agreements (FTAs) and bilateral investment treaties (BITs) negotiated by the various parties to ACTA.1 The enforcement obligations in some of these agreements are surveyed below. A threshold criticism of ACTA which has been made by a number of developing countries is that ACTA obligations will derogate from TRIPS obligations in a number of particulars. At a meeting of the TRIPS Council in June 2010, which addressed trends in enforcement obligations, a number of delegations addressed the compatibility of ACTA with TRIPS. The debate on enforcement trends was brought on by China and India. The Chinese 1 See P. Drahos, ‘BITs and BIPs—bilateralism in intellectual property’, (2001) 4 Journal of World Intellectual Property, 791; P. Drahos, et al., ‘Pharmaceuticals, Intellectual Property and Free Trade: The Case of the US–Australia Free Trade Agreement’, (2004) 22 Prometheus 243; A. Endeshaw, ‘Free Trade Agreements as surrogates for TRIPS-Plus’, (2006) 28 EIPR 374; F. Rossi, ‘Free trade agreements and TRIPS-plus measures’, (2006) 1 Int. J. Intellectual Property Management 150; B. Mercurio, ‘TRIPS-Plus Provisions in FTAs: Recent Trends’, in L. Bartels...

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