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Trade Agreement to Combat Counterfeit Products

By Tim Kidwell
Published: November 23, 2010
United States Trade Representative

On Nov. 15, the U.S. Trade Representative’s office concluded negotiations in Tokyo, Japan, and finalized the text of the new Anti-Counterfeiting Trade Agreement (ACTA). It is now up for legal review and public comment, after which it will be submitted to the White House for the president’s signature.

ACTA expands a number of powers to help protect copyright and trademark holders from the illegal importation and sale of counterfeit products in the U.S. and other signatory countries. Some of the more salient measures include:

  • Border officials are given the authority to suspend the release of import and export goods if they suspect them to be illegal


  • Officials have the authority to initiate an investigation of or legal action against suspected counterfeiting or piracy


  • Guidance for civil enforcement including imposition of injunctions to halt continued intellectual property right infringement, recompense for lost earnings and attorney fees, and destruction of infringing goods without compensation


  • Information clarifying the determination of criminal copyright piracy on a commercial scale, and remedies regarding the unlawful use of trademarked labels to import counterfeit goods


  • A framework under which authorities can seize and destroy counterfeit goods, seize the equipment and material used to manufacture such goods, and seize money made from the sales of fake goods


  • An expansive move to protect intellectual property rights in the digital environment, including protections against the sales or manufacture of devices, programs or services meant to circumvent protective technological measures; and the removal of rights management information, such as an author’s name, copyright or terms and conditions of use


  • Authorities can order an online provider to disclose information sufficient to identify a subscriber whose account was allegedly used for copyright or trademark infringement

According to a press release from the National Association of Manufacturers (NAM), the new agreement is not a treaty between the signatory parties of ACTA, but an “executive agreement” that does not need an act of Congress for implementation. Nor does it require any changes to U.S. law, although some of the countries party to the agreement will have to change their laws to “implement its provisions.”

Parties to the agreement include the U.S., Australia, Canada, the European Union and its member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, and Switzerland.

As examples of laws that will have to change in other countries, Stephen Jacobs, senior director for international business policy at NAM, says that both Canada and Mexico “lack ex officio authority for border enforcement,” which means border officials cannot act on their own authority to halt import or export of suspected fake goods. “Both Canada and Mexico still need to implement protection for TPMs [Technological Protection Measures] and rights management information,” he said.

Currently, copyright and trademark holders within the U.S. have the ability to file a claim against suspected counterfeit goods, allowing customs and border agents to seize the products. ACTA’s aim is to broaden and ease the work that signatory countries can do with each other to help combat infringement of intellectual property rights.

The agreement is not legally binding, although signatory countries are expected to abide by the framework. Read the full text here.