Amend ACTA: General Obligations, Determining Violations

Amendment

In Chapter Two, General Obligations, Art. 2.X.1, DELETE the crossed out text and ADD the italicized text below. 

Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, counterfeit trademark goods and pirated copyright goods, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.  These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.  These enforcement procedures shall not be implemented prior to an affirmative determination of a violation by competent authorities of each Party, unless irreparable harm is imminent. 

Justification 

The scope of the agreement is yet to be determined under Art. 2.X.5.  To maintain a uniform and equitable scope of protection throughout the agreement, this section must be limited to counterfeit trademark goods and pirated copyright goods and not extend to “any act of infringement of intellectual property rights”.  It is important to cross out “remedies which constitute a deterrent to further infringements” in order avoid abuse of remedies as a punitive measure.  A right holder should be compensated for his losses but should not receive a windfall at the expense of the infringer.  Finally, it is important to ensure due process for all defendants and third parties before measures are implemented against them.  Therefore, an investigation and determination by competent authorities must be carried out before enforcement procedures may be implemented.  This “due process” procedure will be further described under Art. 2.X.2.

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