Comparative Study Of Border Measurs Of Intellectual Property Rights

In the era of accelerated development of knowledge economy and trade globalization,developed economies with intellectual property power are continuing to implement the TRIPS-plus border measures,the most representative and up-to-date results of which in this regard are the ACTA agreement and Intellectual Property Chapter of TPP agreement.This paper points out the differences among TRIPS,ACTA and TPP in the three aspects of the range of protected intellectual property rights,the range of trade stages,and the goods disposal measures,noting the specific TRIPS-plus provisions in the high-protection-standard agreements.This paper studies the three dimensions of intellectual property law theory,international agreement and domestic law and judicial practice,analyzes the legitimacy of these TRIPS-plus clauses in the WTO framework,and puts forward what measures China should take to deal with TRIPS-plus border measures of intellectual property rights.The introduction part of this paper explains the research background of this paper and the reasons why the three agreements of TRIPS,ACTA and TPP are selected as the main research object.It clarifies the maximum-standard attribute of TRIPS agreement and thus opens the door to review of the legitimacy of TRIPS-plus border measures.The main part of this paper is divided into four chapters,and then followed by the conclusion of the paper.Chapter 1 focuses on the range of intellectual property rights protected by the border measures.The enforcement of border measures serves it purpose of IPR protection by monitoring the tangible carriers which aregoods,so the range of IPR protected by the border measures defines the scope of the goods to which the border measures apply.This chapter first studies the IPRs protected by the border measures in the different agreements,and then analyzes the impact and its legitimacy of such extent.Second,this chapter analyzes the IPRs contained in the generic drug products which are closely related to public health issues and easily becomes the border measures targets,discuss whether the seizures can be justified.Finally,this chapter analyzes the exclusion field of goods,that is,infringement of specific intellectual property rights can be excluded from the application of the border measures if some requirements are met,which helps to define the scope the border measures from another perspective.Chapter 2 mainly deals with the international trade stages applicable to border measures.This chapter first analyzes the expansion of trade stages in ACTA and TPP compared to TRIPS.While the enforcement in import and export trade has a justified jurisdiction,the transit part has trigged theoretic controversy and also court disputes,which makes it the most important part of this chapter.This part analyzes the legitimacy of such application from the perspectives of Regional Theory of IPR,GATT Article 5 Free transit obligations and TRIPS Article 41.1 and tries to reveal the potential conflicts between such expansion and trade liberalization.Chapter 3 focuses on the handling of infringing goods in border measures.As the suspension of the release of goods is temporary,to achieve the deterrent effect of the infringement of IPRs in international trade and also achieve effective remedies of IPRs holders depends on the final disposal of the goods.This chapter compares the differences among TRIPS,ACTA and TPP of the disposal of infringing goods,sorts out the provisions of the EU,the United States and China law,explains the mandatory obligations and flexibilities in TRIPS by the study of panel report of China-US WTO disputes and then analyzes the TRIPS compliance of TRIPS-plus disposal arrangements.Lastly,this chapter explores the value orientation behind different legislations and reveals that the severe disposition of infringing goods is contrary to the interest balance theory of IPRs.The chapter 4 turns the sight back to China.China cannot stay out ofthe international protection of IPRs and global trade and do nothing,so this chapter discusses the measures China should take from the perspectives of“in” and “out” to deal with the TRIPS-plus border measures.Speaking of“in”,when foreign goods traded into China and subject to China’s customs law enforcement regulations,China should examine its domestic law and revise accordingly to make the border measure effectively serves our country’s economic interests and trade opportunities.When it comes to China participating in international trade and inevitable encountering the border measures,the government and also domestic enterprises should take actions and work together to reduce the adverse influence caused by the TRIPS-plus border measures of China’s major trade partners.