A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)
Elgar Commentaries series
Chapter 6: Civil Enforcement
SECTION 2: CIVIL ENFORCEMENT Article 7: Availability of Civil Procedures 1. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right as specified in this Section Article 7.1 contains a syntactic ambiguity. Does the expression ‘as specified in this Section’ qualify ‘any intellectual property right’ or ‘civil judicial procedures’? In relation to the former, footnote 2 to section 2 of ACTA provides that a party ‘may exclude patents and protection of undisclosed information from the scope of this Section’. This then reduces the coverage of ACTA below the level of the TRIPS Agreement, which in the opening sentence obliges WTO members to ‘make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement’. Article 1.2 of TRIPS provides that for the purposes of that agreement, the term ‘intellectual property’ refers to all categories of intellectual property that are the subject of sections 1 through 7 of Part II. Part II includes both patents and undisclosed information as categories of IPRs. Of course, it is open to ACTA signatories to ignore these exclusions and to provide for civil enforcement in relation to the same categories of IPRs as is mandated by the TRIPS Agreement.1 Given that all ACTA signatories and negotiating parties are signatories to TRIPS, the qualifying footnote will be of little practical effect. On the other hand, if the qualification is of the expression civil judicial procedures, it is important to...
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