By, Saransh Chaturvedi
The adoption of Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which formed part of the agreements established the World Trade Organization, established a minimum level of protection with respect to various forms of Intellectual Property Rights. Intellectual Property (hereinafter, ‘IP’) Rights aims for a sort of environment where an effective and conducive business opportunity can be relied upon, thereby working for the promotion of efficiency. The protection given to IP holders can be attributed not only for the reason of providing incentives but also for providing economic rights. Hence, purportedly, the protection of IP becomes a very important part of the whole IP regime.
Crime and Intellectual Property
IP crimes are one of those areas in the criminal field which becomes very challenging for the authorities to get a hold on. The TRIPS Agreement seeks to reduce impediments and distortions in international trade as it is reflected through its preamble which says. “Desiring to reduce distortions and impediments to international trade and taking into account the need to promote effective and adequate protection of intellectual property rights”. The reduction of impediments on one side and providing effective protection on the other side are essentially, the two sides of the same coin. It is no doubt that in today’s global scenario, the economy is becoming, more or less, tilted towards the need for IP and R&D is taking its recourse. But this has also seen a rising number of illegalities in IP. Any industry that relies extensively on R&D, be it cosmetics or pharmaceuticals or even IT, has seen a surge of pirated and counterfeited products being circulated in the market. The WHO states that approximately 10 percent of all pharmaceuticals drugs in the world are counterfeit, the number rising to 60% in certain poor and developing nations. It is imperative to say that IP crime, makes the overall growth of the industry to depreciate. Even the Confederation of Indian Industry estimates that the FMCG sector loses approximately 15% of its revenue to counterfeit goods with several top brands losing up to 30% of their business due to IP crime. Primarily, the reason why such crimes are thriving and affecting the socio-economic growth is because of the nature of the crime, its size, and diversity.
Criminal Enforcement and TRIPS
TRIPS can be attributed to being one of the most important agreements in the WTO regime, setting down the minimum standards for many forms of IP. As already discussed, the Preamble of TRIPS, provides a comprehensive guideline, which the member country, shall follow while giving effect to their domestic law. Article 61 of the TRIPS agreement states that the Criminal procedure applicable wherein, the member states shall provide for the criminal procedure and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial basis. This article also entails the remedies that the member states may provide for the infringement of IP. Remedies can include imprisonment and/ or monetary fines and can also include seizure, forfeiture and destruction of infringing goods. Also, Article 50 of the TRIPS agreement gives an ambit to judicial authorities to have the power to decide over any infringement issues that arise. Also, Article 41states the general obligation, wherein each member shall ensure that enforcement procedures are available under their law to permit effective action against any act of infringement of IP. A careful reading of both Article 41 and 61 gives us the picture that later supplements the former in its totality.
The criminal sanction provided by TRIPS is optional. It requires criminal sanction ‘only in cases of willful trademark counterfeiting and/or copyright piracy’ and it foresees only an optional right for WTO members to introduce criminal sanction, not an obligation for it,
The two IP treaties, mentioned in TRIPS, being the Paris Convention for the Protection of Industrial Property (hereinafter, ‘Paris Convention’) and the Berne Convention for the Protection of Literary and Artistic Work (hereinafter, ‘Berne Convention’), does have the provisions regarding role of criminal law enforcement, but as usual, no-obligation onto the members of the treaty. Article 9 of the Paris Convention demands the seizure of goods unlawfully bearing a trademark, at the request of the public prosecutor. On the other side, Article 16 of the Berne Convention stipulated that infringing copies of work shall be liable to seizure, which shall ‘take place in accordance with the registration of each country’.
The dependency of the economy on IP and R&D is set to increase in the days ahead. TRIPS is one of the most remarkable agreements under the WTO regime which is perhaps a light in the dark path, especially for developing countries. It has certainly helped countries to draft their policy and regulations in the field of IP. But, a lot more has to be done in this field so as to provide an optimum level of protection. Crime knows no boundary, and that’s why it has become imperative for the world to come up with an agreement, that does have an obligatory measure, at least in that area, where the policies of IP overlap with each other.
- India: IP crime: “Rising threats to Intellectual Property Rights (Accessed on 3rd May, 2020) https://www.mondaq.com/india/trademark/321112/ip-crime-rising-threats-to-intellectual-property-rights
- Intellectual Property and Contracting: Protect and Preserve Strategic IP Deals (Accessed on 3rd May, 2020) https://www.pwc.com/us/en/services/forensics/intellectual-property-loss.html
- Advice on Flexibilities under TRIPS Agreements (Accessed on 3rd May, 2020) https://www.wipo.int/ip-development/en/policy_legislative_assistance/advice_trips.html
- Passing off under Trademark (Accessed on 3rd May, 2020) http://www.legalservicesindia.com/article/1254/Passing-off-under-trademark.html
- TRIPS Agreement