Research On The Border Measures Of IPR Enforcement In China's Free Trade Agreements

Free trade agreement(FTA)is a legally binding contract between two or more countries,aiming to promote economic integration.In most FTAs,there are special chapters on the protection of intellectual property,which not only include the object of intellectual property protection,the rights of the obligee and the way of tort relief,but also give important status to the border measures of intellectual property law enforcement.The minimum standards of the system of border measures for intellectual property should be in accordance with the provisions of 41 articles and 51-60 articles of TRIPS Agreement.At the same time,due to the constant appeals of European and American countries and the continuous improvement of standard requirements in legislation and law enforcement practice,many influential FTA,such as TPP / cptpp and other agreements in the world have emerged a large number of trips plus clauses higher than the trips standard.In the current FTA signed by China,this part is reflected in China Switzerland,China South Korea,China Australia,China Peru,China Costa Rica FTA,and in some terms,it reflects the trips plus standard higher than the requirements of TRIPS Agreement,which shows that it has been deeply influenced by the trend of trips plus.Based on the text of FTA agreement,this paper analyzes the characteristics of border measures in terms of procedures,applicable scope of goods,starting standards of law enforcement,and compares them with Acta and other international standards.Combined with relevant cases,it reveals that the development trend of trips plus will bring at least three negative impacts and challenges:(1)because of the obstacles to the flow of generic drugs Actions lead to public health crisis;(2)the abuse of border seizure procedures hinders the normal circulation of commodities;(3)the use of the advantages of rule making by developed countries leads to discriminatory law enforcement against developing countries.Finally,this paper puts forward some suggestions for China to formulate the provisions of intellectual property border measures in FTA in the future,that is,to pay attention to the object,link and starting rules of border enforcement:(1)apply border measures to transit link to a limited extent;(2)moderately expand the scope of border measures to protect the object;(3)provide at least "preliminary evidence" to start border enforcement.In the aspect of building FTA intellectual property system in China,the following suggestions are proposed:(1)building a relatively unified model of FTA intellectual property rules;(2)promoting China's intellectual property rules system through various channels.