Transit Goods Issue Of Intellectual Property Research

This thesis focuses on the intellectual property issue regarding in-transit goods under the legal framework of WTO. After briefly defining the research scope, the preamble emphasizes the discrepancies between in-transit goods and corresponding definition in custom practice, and clarifies the research method used throughout the whole thesis. This thesis is divided into four chapters and ends with conclusions.In Chapter one, all relevant provisions pertinent to the intellectual property protection at the border under the multilateral legal framework are examined. Section one first addresses the provisions on freedom of transit under Article V of GATT1944. It then takes a close look at the application scope and procedural conditions of border measures under TRIPS, and concludes that because WTO members have "no obligation to" apply border measures to in-transit goods, all wordings under "Section4:Border Measures" of TRIPS fails to cover the legal problems results from the unique feature of in-transit goods. Section three briefly reviews several new movements of intellectual property protection of in-transit goods post TRIPS. In particular, it analyzes the legality of Anti-Counterfeiting Trade Agreement and challenges posed by it.Chapter two starts with the relationship between WTO agreements and EU regulations, and then goes on to analyze the border measures in EU. In particular, it examines the legality of relevant EU legislation, i.e. Council Regulation (EC) No1383/2003of22July2003concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights. It concludes that this Regulation fails to comply with Article55of TRIPS, and also reviews the newly proposed amendment to the aforementioned EU regulation.Chapter three is to analyze five typical cases concerning seizure of common in-transit goods in EU. It focuses on two issues common to these cases:(i) an important preliminary issue of whether in-transit goods are really devolved of entering into one member’s market, and (ii) the legality of the "manufacturing fiction" which was gradually developed through legal practice. This Chapter also carefully examines the unlawfulness of EU’s seizure of generic drugs. It points out three vital misunderstandings toward generic drugs, and concludes that the seizure violates TRIPS. Chapter four is to draw a reasonable line for border measures with an aim to shaping up a more reasonable border measure system. It summarizes six major principles for carrying out border measures:(ⅰ) to respect IP rights as private rights and strike a balance between interests of different parties involved in IP protection;(ⅱ) to realize the gap between theoretical legal definition and customs practice;(ⅲ) to abide by the bottom line defined by the mandatory treaty obligation under TRIPS;(ⅳ) to refrain from mistakenly regard lawful generic drugs as counterfeit ones and ensure the efficient transit of generic drugs;(ⅴ) to promulgate custom guidelines which are more feasible and at the same time more flexible, so as to regulate the discretion of custom authority; and finally (ⅵ) the necessity and feasibility of distinguishing between different IP rights. In light of the above conclusions, chapter four concludes with counter-measures for China from the perspectives of individual manufactures, government, and international cooperation.