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 9: Confiscation

Michael Blakeney


INTRODUCTION Article 25.1 of ACTA provides for the confiscation of the assets derived from, or obtained directly or indirectly through, ‘willful trademark counterfeiting or copyright or related rights piracy on a commercial scale’ (Article 23.1), ‘willful importation and domestic use, in the course of trade and on a commercial scale, of labels or packaging’ (Article 23.2), ‘unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public’ (Article 23.3) and with respect to the ‘aiding and abetting’ of these offences (Article 23.4). This chapter examines the role that the confiscation of the proceeds of crime can play in disincentivizing intellectual property crime. The first part of the chapter explores the objectives of proceeds of crime (PoC) legislation and how the ACTA is the latest in a series of international calls to use PoC legislation as an enforcement measure. The second part of the chapter provides an overview of the evolution of PoC laws, initially tracing the history of their development with observations regarding their effectiveness in various domestic fora. The third part of the chapter examines examples of how PoC legislation has been particularly applied to intellectual property offences in the US, UK and Australia before concluding with observations about the appropriateness of confiscation of the proceeds of crime in relation to IPR infringements and the specific provisions of the ACTA. OBJECTIVES OF POC LEGISLATION The principal objectives of PoC legislation are to punish and deter persons from breaching laws; to deprive...

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