After a final round of negotiations in Tokyo, Japan a finalised version of the Anti-Counterfeiting Trade Agreement (ACTA) was published. Throughout negotiations a number of countries and bodies raised concerns about the impact of ACTA, including its affect on generic medicines.
In a statement accompanying the finalised text the Office of the US Trade Representative (USTR) said ACTA “includes state-of-the-art provisions” to tackle counterfeiting. USTR believes this will help protect legitimate trade and “sustainable development of the world economy”.
However, controversies surrounding ACTA continue, with some saying it will harm the generic sector. Also, a day after publication of the final text a research paper was published by Henning Grosse Ruse-Khan of the Max Planck Institute for Intellectual Property, Competition & Tax Law.
In the research paper Ruse-Khan says ACTA provisions: “do not mandate, but certainly allow to extend border measures against goods in transit and detain these good for suspected infringements of, inter alia, trademarks and patents in the transit country.”
Consequently, ACTA “can easily lead to seizures of transiting generics”. Pre-ACTA seizures in the Netherlands prompted India and Brazil, the exporter and importer of the products, to initiate separate World Trade Organization (WTO) settlement proceedings.
To avoid seizures future ACTA parties must “draft concrete defences and other safeguards for all affected by the new extended remedies”. Doing so would bring checks and balances in favour of defendants in line with the extended remedies for rights holders provided by ACTA.
“They should give as much room to specific safeguards for all interested parties affected by the ACTA enforcement rules as they have given to concise and comprehensive new remedies for right holders”, says Ruse-Khan.