A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)
Chapter 7: Border Measures
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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