Intellectual Property Enforcement
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Intellectual Property Enforcement

A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)

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.
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Chapter 6: Civil Enforcement

Michael Blakeney


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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