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Volume 17, Issue 47
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Monday, March 8, 2010
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USTR Outlines U.S. Negotiating Positions in Anti-Counterfeiting Talks
The Office of the U.S. Trade Representative has recently made available a letter from USTR Ron Kirk to Sen. Ron Wyden, D-Ore., that details many of the United States positions in the ongoing negotiations toward an Anti-Counterfeiting Trade Agreement. According to the letter, these positions include the following.
The U.S. does not view the ACTA as a vehicle for changing U.S. law and is working to ensure that it includes flexibility that would enable Congress to reform U.S. intellectual property rights laws.
The U.S. is seeking in the ACTA coverage that is similar to the enforcement provisions of the IPR chapters of U.S. free trade agreements with Australia, Korea, Morocco and Singapore. Among other things, those agreements provide for criminal penalties and procedures in cases of willful trademark counterfeiting or copyright piracy on a commercial scale, border measures in cases involving trademarks and copyrights, and civil remedies for all IPR (patent, trademark and copyright), with appropriate limitations that ensure consistency with U.S. law.
With respect to patents, the U.S. seeks coverage of civil injunctive relief that is similar to the FTA enforcement provisions. These provisions require judges to have the authority to award civil injunctive relief in connection with specified infringements but do not prevent judges from determining that such relief is inappropriate in a particular case. Neither those agreements nor U.S. law provides for criminal penalties and procedures in cases of patent infringement.
The U.S. would like to see the ACTA reflect an approach to border enforcement that follows that of recent U.S. trade agreements. For example, those agreements call for customs officials to have ex officio authority to seize imported, exported or in-transit merchandise suspected of being counterfeit or confusingly similar trademark goods, or pirated copyright goods. The U.S. does not support extending this provision to include suspected patent infringement.
The ACTA is envisioned as an IPR enforcement agreement, and the U.S. is therefore neither seeking nor expecting to address the question of whether a partys laws confer substantive rights that could be used to prevent parallel imports.
With respect to the scope of remedies available against online service providers for copyright infringements that they do not control, initiate or direct, the U.S. is not seeking any obligations that go beyond U.S. law concerning termination of repeat infringers, monitoring of online behavior, or expeditious receipt by copyright holders of information concerning alleged infringers.
USTR does not support the removal of provisions concerning the application of border measures to goods in transit. The risk to consumers from potentially life-threatening products (such as adulterated food, medicine, agricultural chemicals, personal care products, electrical products, car and airplane parts, etc.) is increased when customs authorities in transit ports turn a blind eye to, or are legally incapable of acting to stop, goods suspected of bearing counterfeit trademarks, Kirk said.
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Executive Editor: Shawn McCausland
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