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 11: Enforcement Practices

Michael Blakeney

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


Chapter III of ACTA is concerned with a miscellany of enforcement practices ranging from capacity-building, the collection of data, the management of risk at the border, transparency in the enforcement of IPRs, the raising of public awareness about IPRs and infringements and environmental considerations in the destruction of infringing goods. ARTICLE 28: ENFORCEMENT EXPERTISE, INFORMATION, AND DOMESTIC COORDINATION 1. Each Party shall encourage the development of specialized expertise within its competent authorities responsible for the enforcement of intellectual property rights. The building of national capacity in the enforcement of IPRs has been identified as a particular problem in numerous of the USTR’s Special 301 reports. Thus the USTR pointed out in his 2010 report that notwithstanding the fact that ‘many trading partners have implemented IPR legislation, the lack of criminal prosecutions and deterrent sentencing has left effective IPR enforcement to languish in many regions and that the lack of knowledge regarding IPR law and policy on the part of judges and enforcement officials, and a lack of enforcement resources, are repeatedly cited as primary reasons for this growing concern’.1 The various enforcement obligations created by ACTA for police, customs authorities, prosecutors, magistrates and the judiciary will require the development of additional capacity in the investigation, prosecution and adjudication of IPR offences. It is envisaged in Article 35 in Chapter IV of ACTA that capacity-building and technical assistance will be made available as an aspect of the international cooperation which the agreement promotes.2 1 USTR, 2010 Special 301 Report, 30 April...

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