The Anti-Counterfeiting Trade Agreement (ACTA) is back in the spotlight as the European Parliament Development Committee meet on May 14 to vote on a draft opinion submitted by the ACTA Rapporteur. The draft calls on the Committee on International Trade, as the committee responsible, to propose that European Parliament give its consent on ACTA.
According to Médecins Sans Frontières (MSF), this draft opinion on ACTA is flawed as it fails to address key concerns about the adverse impact of ACTA on access to medicines, specifically on the following three issues raised by MSF.
Firstly, MSF points out that ACTA is not restricted to trademark counterfeiting, so all types of trademark infringements, including civil trademark disputes, are included in the purview of ACTA. Risks to access to medicines of such overboard trademark provisions have been recently highlighted when medicines were detained in Germany based on the wrong assumption that a generic medicine, using the required international non-proprietary name (INN) ‘amoxicillin’ to describe the contents, infringed GSK’s trademark on the brand name Amoxil (which besides is itself a use of the INN).
Secondly, although ACTA excludes patents from border measures and criminal enforcement sections, the risk that ACTA’s civil enforcement provisions will extend to all IP rights, including patents, still exists. Civil enforcement provisions are applicable on patents unless specifically excluded by an ACTA member state.
And thirdly, third parties are still at risk as ACTA provisions they include stricter and enhanced enforcement measures by exposing third parties to the risk of enforcement in relation to allegations of trademark infringement and potentially patents infringements. Third parties such as API producers; distributors; retailers; NGOs, such as MSF, who provide treatment and funders who support health programs are at risk of injunctions, provisional measures, and even criminal penalties, including imprisonment and severe economic losses.
EP News Bureau – Mumbai
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