Anti-Counterfeiting Trade Agreement (leaked)

From Driscollwiki

Jump to: navigation, search

Anti-Counterfeiting Trade Agreement (leaked), January 18, 2010.

These notes are from the "leaked" PDF titled as follows: 

Consolidated text
Anti-Counterfeiting Trade Agreement
Informal Predecisional/Deliberative Draft:
January 18, 2010

Contents

Chapter One: Initial provisions and definitions

Section B: General definitions

  • Canada reserved pending discussion, negotiation (2)
"intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)" (2)
  • There is no clarity in the text
  • "Intellectual property rights", "IPR", "copyrights and related rigths and trademarks" (2)
  • Mexico suggests uniformity needed (2)
"person means either a natural person or a juridical person" (2)
"right holder includes a federation or an association having the legal standing and authority to assert rights in intellectual property, and also includes a person that exclusively has any one or more of the intellectual property rights encompassed in a given intellectual property" (2)
  • Not clear how these rights are assigned, "had", "encompassed", given, transferred, received, traded, etc.
"territory means customs of territory of a Party and all free trade zones of that Party" (2)

Chapter Two: Legal Framework For Enforcement of Intellectual Property Rights

Section 1: Civil Enforcement

Article 2.1: Civil procedures, enforcement (3)

  1. Each party makes procedures available to rights holders concerning IPR
  2. These procedures are "effective, proportionate and deterent" (3)

Article 2.X: Injunctions

  • Option 1: Authority to issue order to a party to "desist from an infringement", "to prevent infringing goods from entering in to the channels of commerce", "to prevent their exportation" (3)
  • Option 2: Also, "rights holders are in position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right" (4)

Article 2.2: Damages

  1. Each party shall provide that
    1. Knowing infringers will have to pay damages to compensate for
      1. /actual/ injury
      2. Profits of the infringer
    2. "Any legitimate measure of value may be submitted by the rights holder": lost profits, value of infringed good/service, suggested market/retail prices (4)
  2. In cases of copyright infringement/ trademark counterfeiting, need a system for
    1. Pre-established damages
    2. Strong enough to "constitute a deterent" and to "compensate the right holder for the harm caused" (5)
      1. These values will be based on quantity of goods, "multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not been the act of infringement" (in patent: amount of royalties or fees that the infringer would have had to pay if they requested authorization" (5)
  3. Above is an available alternative to be chosen by the right holder
  4. "Prevailing party may be awarded payment by the losing party of ... attorney's fee" (6)

Article 2.3: Other Remedies

  1. Goods deemed "pirate", "counterfeit", "infringing" are "forfeited to the rights holder"/ "destroyed"/ "recalled or definitively removed from the channel of commerce ... without compensation of any sort" (6)
  2. "Materials and implements ... the predominant use of which has been/ that have been used ... in the manufacture or creation ... shall be, without compensation of any sort, promptly ... forfeited to the right holder/ destroyed/ disposed of outside the channels of commercie in such a manner as to minimize the risks of further infringements" (6)
  3. Removal of trademark not good enough (6)

Article 2.4: Information related to infringement

  • Upon "justified request of rights holder", infringers have to give up information on the "origin" and "distribution network" of the infringing goods/services
    • Means of production
    • Distribution channel
  • /AUS/NZ don't support/

Article 2.5: Provinsional measures

  1. Option X/EU/: Rights holders can request "interlocutory injunction ... to prevent any imminent infringement of an intellectual property right" (7)
    1. Also against an "intermediary whose services are being used by a third party to infringe an intellectual property right"
    2. They may also, BEFORE PROCEEDINGS, include "detailed descritptions, the taking of samples or the physical seizure of documents or of the infringing goods" (7)
    3. Authority should act "expeditiously"
  2. Authority to order seizure of "suspected infringing goods, materials, and implements relevant to the act of infringement" (8)
  3. Authority may require plaintiff to provide any "reasonably available evidence" to prove that they are being infringed and that such infringment is "imminent" (8)
    1. Some discussion of "preventing abuse" and "compensation" if there is no infringment
  4. Measures are all revoked if the plaintiff does not "institute" (8)
    1. But the period may be as long as 31 days

Section 2: Border measures

Article 2.X: Scope

/EU version/

  1. Conditions for action
  2. Use TRIPS definition of infringement + "confusingly similar trademark goods" (9)
  3. Personal baggage is "outside the scope" so long as there is no "material indication" that they are part of comercial traffic

Article 2.6: Application by Right holder

  1. Rights holders may request authorities to suspend release of import, export, shipments suspected of infringing
    1. Counterfeit trademark goods: any goods + packaging bearing trademark that is "identical to the trademark validly registered"
    2. Pirated copyright goods: copies made without the consent of the right holder
  2. Rights holder must prove that prima facie an infringement of the right holder's IPR but this shouldn't "unreasonably deter recourse to the procedures above" (11)
  3. Application along will suspend release of goods for "not less than one year" (11)
    1. /Can/NZ/ application may be suspended if they have "knowingly provided false or misleading information in the application" (11)
  4. Authorities respond quickly and /US/J/ make the application public. /AUS/EU/ right holder not charged for this.

Article 2.7: Ex-Officio Action

Interesting disagreement in terms:

"Each party [NZ: may][US/J: shall] provide that its customs authorities may act upon their own initiative, to suspend the release of [US/J: suspected {Sing: infringing} counterfeit {US/J: or confusingly similar} {Can/Aus/Kor/Mor/Sing: or confusingly similar} trademark goods or suspected pirated copyright goods][MX: IPR infringing goods] ..." (13)

Article 2.8: Provision of information from right holder

  • Procedures for rights holders to supply authorities with sufficient information to assist them in enforcin g the earlier border measures
Retrieved from "http://www.kevindriscoll.org/wiki/Anti-Counterfeiting_Trade_Agreement_(leaked)"
Personal tools