On October 1, 2011, representatives from the United States, Australia, Canada, Japan, the Republic of Korea, Morocco, New Zealand, and Singapore signed the Anti-Counterfeiting Trade Agreement (ACTA) at a signing ceremony hosted in Tokyo by the Government of Japan.  Representatives of the European Union, Mexico, and Switzerland, who are in the process of finalizing the domestic procedures for signature, attended and confirmed their continuing support for the Agreement.  These 11 countries represent more than half of the world’s trade.   

The ACTA signifies an important step towards improving international cooperation in intellectual property enforcement and a reaffirmation of the goal of fighting the proliferation of counterfeit and pirated goods.  It establishes a legal framework for combating counterfeiting and digital piracy on an international scale through criminal enforcement, border measures, and civil and administrative actions.  As a result of these enhancements, private parties will not only have better access to effective civil systems that crack down on counterfeiters and pirates, but will also be able to obtain court orders to stop illegal activity and to secure meaningful damages to remedy violations of their rights.  

Significantly, the new agreement includes:

1.         A requirement that border enforcement authorities be empowered to act on their own initiative to suspend the release of, or detain, both imports and exports of counterfeit and pirated goods. 

2.         A requirement that criminal authorities be able to initiate investigation or legal action with respect to piracy and counterfeiting cases, rather than waiting for a complaint.

3.         Requirements for the availability of criminal procedures and penalties when willful piracy or counterfeiting is carried out for commercial advantage.

4.         A requirement of criminal remedies against willful importation or domestic use of labels or packaging for counterfeit goods.

5.         New rules on criminal seizure and destruction of fake goods, seizure of the equipment and materials used in their manufacture, and seizure of the criminal proceeds from piracy and counterfeiting offenses.

6.         An enhancement of civil enforcement provisions dealing with damages, provisional measures of protection, recovery of costs and attorneys’ fees, and destruction of infringing goods.

7.         Clarification of existing international requirements to protect against circumvention of digital security technologies (such as passwords or encryption).

8.         Promotion of best practices to aid in enforcement, such as the development of specialized expertise within, and coordination among, each country’s enforcement authorities, the collection and analysis of relevant statistical information concerning IP infringements, and the establishment of advisory groups to ensure that the views of rights holders, and other stakeholders, are received.

The ACTA will not be treated like a treaty, which would require Senate ratification in the United States; rather, it is considered an “executive agreement” that is immediately enforceable under U.S. law.

This new agreement underscores the significant impact counterfeiting makes on worldwide trade and the global economy, and indicates that nations worldwide will continue to enhance their enforcement efforts, both individually and collectively.  Although the war against counterfeiting is far from won, brand owners may take heart in the ACTA and the increased protections it will ostensibly provide.

The final text of the ACTA can be found at: http://www.mofa.go.jp/policy/economy/i_property/pdfs/acta1105_en.pdf

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