The U.S. is usually a proponent of efforts to raise the standards for the protection and enforcement of IP rights (copyrights, patents, trademarks, designs, trade secrets, etc.). The Trans-Pacific Partnership Agreement includes a strong IP Chapter that received support from a cross-section of industries.

It is, therefore, disappointing that the Trump administration has decided to withdraw from the TPP. A few years ago, the Anti-Counterfeiting Trade Agreement (ACTA), which sought to raise IP enforcement standards also failed. ACTA met strong resistance within the European Union, which led to its demise.

Innovation and creativity are the hallmarks of U.S. industry and, as a result, that industry has worked extensively with government negotiators to raise the levels of protection and enforcement for patents, trademarks, copyrights, trade secrets and designs in foreign countries in order to improve the ability of domestic firms to protect and enforce these rights abroad.

Progress takes time, but enforcement standards have been raised. In the TPP, the U.S. negotiated with several foreign governments that had not previously entered into free trade agreements with the U.S. In some respects, this leverage meant that some governments agreed to some ambitious standards for the protection of IP.

The TPP delivers to IP owners the express application of the enforcement procedures and remedies to the digital environment, which is not done in other agreements, and offers the clearest articulation to date of the full application of enforcement obligations with respect to online infringements.[1]

Given the increased level of trade, and the shift in how the trade in goods has changed, an area of great emphasis was the cross-border movement of those goods. As a result, the U.S. government, working with industry representatives, successfully imposed obligations on our trading partners to adopt legal measures requiring increased enforcement against trademark and copyright infringement.

Governments agreed to give their relevant authorities the power to exercise enforcement against entities infringing copyrights and  trademarks on their own initiative, without a formal complaint. This power would be applicable when suspect goods were attempted to be:

  • imported,
  • exported and/or
  • in-transit (with some limitations).

The obligation to allow government officials to take enforcement action on their own initiative is one that is not required under internationally agreed standards of the World Trade Organization (WTO). Moreover, the obligation to take any action to stop the export of suspected infringing goods or against goods moving in-transit is also above the international standards of the WTO.  Thus, IP owners will not have the benefit of these higher enforcement standards in several of the countries that negotiated the TPP if the agreement does not come into force.

In addition, the TPP’s IP Chapter clarified the powers that must be provided to the judicial authorities in criminal cases involving trademark and copyright cases, clarifying several ambiguities that exist in the WTO standards, or creating wholly new standards.

Another example of progress was the inclusion of a section on the protection of trade secrets, which reflects new technologies and methods that are employed to steal valuable trade secrets. The TPP explicitly states that state-owned enterprises are not exempt from the penalties and remedies that may be applied in cases involving the theft of trade secrets.

While no trade agreement is perfect, U.S. government negotiators – in collaboration with industry representatives whose companies and clients are active in foreign markets – have endeavored to get as much as possible for the protection of their valuable IP assets. Up to this point, they have been very successful, but one consequence of the recent actions to halt progress on the TPP puts the gains in IP protection and enforcement in jeopardy.

[1] Intellectual Property Rights Industry Trade Advisory Committee 15 Report on TPP, at p. 22.  https://ustr.gov/sites/default/files/ITAC-15-Intellectual-Property.pdf.

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