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 8: Criminal Enforcement

Michael Blakeney

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


INTRODUCTION Section 4 of ACTA deals with the criminal enforcement of IPRs. The primary focus of the section (in Article 23) is the criminalization of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Also criminalized is the use and importation of infringing labels and the bootlegging of cinematographic works. As with Article 61 of TRIPS, the penalties to be imposed have to be deterrent (Article 24), although unlike TRIPS, no guidance is provided on the matters to be considered in ensuring deterrence. The competent authorities of signatories are to have the authority to order the seizure of suspected goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence, and the assets derived from, or obtained directly or indirectly through, the alleged infringing activity (Article 25). The ability to pursue the proceeds of IP crime extends ACTA beyond TRIPS and is addressed in greater detail in Chapter 9. Finally, the enforcement authorities are able to act upon their own initiative to initiate investigations or legal actions with respect to the criminal offences in ACTA (Article 25). A good deal of criticism has been levelled at the criminalization of infringements of IPRs. For example, it has been pointed out that the criminalization of acts has ‘particular expressive and moral resonances that are unlikely to find easy equivalence in the law of intellectual property’.1 Particular criticism has been levelled at the criminalization of the downloading of copyright...

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