A Step Forward on CPTPP & IPR Border Enforcement
The U.S. withdrew from the Trans-Pacific Partnership (TPP) trade agreement shortly after the Trump Administration came to power. As a result, the TPP is now known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), with the 11 remaining governments having signed the agreement.
What does this shift mean for the intellectual property provisions that U.S. negotiators had succeeded in obtaining through the TPP for the protection of intellectual property rights (IPR)?
IPR owners, including U.S. companies, in any of the countries that signed the CPTPP, should be aware that the IPR border enforcement provisions will provide higher levels of IPR border enforcement than the World Trade Organization’s minimum standards. The strong IPR border enforcement provisions that the U.S. negotiated remain in the CPTPP text, and while attention has been on the suspended IPR provisions, the IPR border enforcement provisions are a positive step forward for IPR enforcement.
The enhanced IPR border enforcement requirements include required:
- enforcement against confusingly similar marks,
- information sharing in cases of imported goods that have been detained or whose release has been suspended,
- ex officio enforcement by competent authorities, and
- competent authorities have the right to exercise ex officio enforcement to stop goods that are imported, exported (intended for export), or moving in-transit.
Regarding the enforcement of goods moving in-transit, a footnote explains that if the law of any of the CPTPP partner countries does not provide for enforcement against goods in-transit, the government should permit its competent authorities to share information with authorities located in the country that is the final destination of the suspected infringing goods.
The IPR border enforcement provisions also address fees. Parties – i.e., governments, that impose application, storage and/or destruction fees – should not impose fees so high as to deter use of the border enforcement provisions.
The IPR border enforcement provisions are a major step forward in combating cross-border trade in trademark and copyright infringing goods. But in spite of this progress, IPR owners should work toward obtaining a few near-term objectives for additional strengthening of IPR border measures, including enforcement against in-transit goods, goods entering and exiting free trade zones and the elimination of the small packages/consignments exemption in view of the impact of the internet.
This post was written by Timothy Trainer, coauthor of Customs Enforcement of Intellectual Property Rights. Trainer also is the founder of the Global Intellectual Property Strategy Center, P.C., a consulting firm representing domestic and international clients, in Washington, D.C. Follow Trainer on Twitter @TTrainerglobal