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 7: Border Measures

Michael Blakeney

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


INTRODUCTION A key feature of the TRIPS Agreement was the obligation of members to introduce border measures for the protection of intellectual property rights. It is obviously more effective to seize a single shipment of infringing products at the border rather than to await its distribution in the market. Section 4 of Part III of TRIPS established a scheme for suspension of the release into circulation of suspected counterfeit trademark or pirated copyright goods. This suspension could be on the application of a right-holder or pursuant to ex officio action by the border authorities. The stratagem of utilizing border seizure to control the trade in infringing goods was foreshadowed in the Paris Convention, which in Article 9(1) provides that ‘all goods unlawfully bearing a trademark or trade name shall be seized on importation into those countries of the Union where such mark or trade name is entitled to protection’. It was envisaged in Article 9(3) that this seizure would take place at the request of ‘the public prosecutor, or any other competent authority, or any interested party’. The Paris Convention contains no provisions providing for the seizure upon importation of other intellectual property infringements. Similarly, Article 16 of the Berne Convention provides for the seizure of infringing copies of a work in any country of the Berne Union where the work enjoys legal protection and that the ‘seizure shall take place in accordance with the legislation of each country’. Neither convention contains procedures dealing with seizure of imports....

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