Chapter 17: Strategies against counterfeiting of drugs: a comparative criminal law study
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If the following report on a comparative criminal law research project deals with the phenomenon of drug counterfeiting within the framework of an IP Enforcement Congress, this does not take place with an absolutely clear conscience. The reason is that the main research focus of this particular project was not on the protection of intellectual property. Instead, the deciding factor for this study was the threat to life and health of the consumer that is posed by counterfeit drugs. Indeed, a leader of a drug regulatory agency has been cited as follows: ‘Counterfeiting medicines is just a commercial violation, like counterfeiting a T-shirt’. But in view of the many cases in which persons have died as a result of counterfeit drugs or suffered considerable damage to their health, the World Health Organization (WHO) surely meets with approval when it counters: ‘It is not an IP issue, it is a health issue’. As is often the case, the truth lies somewhere in between. The protection of intellectual property and the protection of health are not two conflicting legal interests, but rather two sides of the same coin when it comes to counterfeit drugs: it is not only an IP issue, it is just as much a health issue. Ultimately, the protection of intellectual property has only to gain from the addition of other legally protected interests requiring the reinforcement of criminal law.

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Edited by Christophe Geiger