Research On The Enforcement Measures Of Intellectual Property Rights Within "Anti-counterfeiting Trade Agreement"

With the development of international trade, the enforcement of intellectual property hasgot more and more attention. The TRIPS Agreement is a landmark thing, it made the trade andthe protection of intellectual property combined, and provided the enforcement of IPRprotection in the multilateral level for the first time. However,15years later, when the mostcountries have reached the standards which were established by the TRIPS Agreement, somedeveloped countries considered it had become obsolete, and it couldn’t provide the effectiveenforcement for the intellectual property. They have developed "Super-TRIPS" by the ways ofbilateral free trade agreements, bilateral investment agreements, regional free tradeagreements and plurilateral agreements, enhancing the level of IPR protection. Thus the"Anti-Counterfeiting Trade Agreement" came into being. In December2010, the final text ofthe "Anti-Counterfeiting Trade Agreement" was released, after two years and small scale andsecret negotiation. The enforcement measures of intellectual property rights within the"Anti-Counterfeiting Trade Agreement "which is the object of this paper has far beyond theTRIPS Agreement, they is mainly reflected in the civil enforcement measures, bordermeasures, criminal enforcement measures, enforcement measures of intellectual propertyrights in the digital environment.This paper mainly discusses the enforcement measures of intellectual property rightswithin "Anti-Counterfeiting Trade Agreement" from six parts.The first part makes a general description to the "Anti-Counterfeiting Trade Agreement",and discusses its origin, the negotiation processes, the content and characteristics.The second part analyzes the civil enforcement measures of the "Anti-CounterfeitingTrade Agreement "."Anti-Counterfeiting Trade Agreement" and the TRIPS Agreement aredifferent in the area of injunctions, damages, provisional measures, other remedies,information related to infringement. The civil enforcement measures of intellectual propertyof the "Anti-Counterfeiting Trade Agreement "have far beyond the TRIPS Agreement.The third part discusses the border measures of the "Anti-Counterfeiting TradeAgreement ". I believe that the scope of border measures is expanded, the power of thecustoms authorities is increased, the applicant’s rights are restricted, the rights of the rightsholders are enhanced by the contrast of the "Anti-Counterfeiting Trade Agreement" and theTRIPS Agreement. These changes show that the border measures of the "Anti-Counterfeiting Trade Agreement" are more conducive to maintaining the interests of the rights holders.The fourth part discusses the criminal enforcement measures of "Anti-CounterfeitingTrade Agreement". How to define the "commercial scale", the view of the U.S is differentform the Panel in the China–IPR Case. It makes an analysis to the definition of the"commercial scale", the application of criminal sanctions, the range of seizure, forfeiture anddestruction goods.The fifth part discusses the enforcement measures of intellectual property rights in thedigital environment. In the enforcement measures of intellectual property rights in the digitalenvironment, this section identifies the applicable objects, an online service provider shoulddisclose sufficient information to right holders to identify a subscriber whose account isallegedly used for infringement, the technical measures is defined.The sixth part discusses the realistic impact of the "Anti-Counterfeiting TradeAgreement". The "Anti-Counterfeiting Trade Agreement" is weakening the multilateralsystem of IPR protection, the focus is transferred from substantive rights to enforcementpractices, and thus it makes an important impact on the international system of intellectualproperty rights. Although the "Anti-Counterfeiting Trade Agreement" deliberately circumventthe developing countries and does not take into account the interests of developing countries,it can be predicted that they will be delivered to developing countries by many ways. Inaddition, after the "Anti-Counterfeiting Trade Agreement" entry into force, it will inevitablyhave a significant impact on the international trade, and may form the new barriers to trade,and thus distort the normal development of the international trade.