November 19, 1997
Sponsoring Committee: Customs Procedures Subcommittee of the Anticounterfeiting and Enforcement Committee
The Resolution and Report setting out INTA's position regarding the World Customs Organization's "Model for National Legislation to give Customs additional powers to implement the Agreement on Trade-Related Aspects of Intellectual Property Rights" (WCO Model).
WHEREAS, international trade in and movement of goods which are counterfeit or which otherwise infringe intellectual property rights have been recognized as issues of grave concern to the international community;
WHEREAS, it has been generally recognized and accepted that National Customs services play a vital role in the detection, prevention and deterrence of trade in counterfeit and other infringing goods, and that Customs services should be given appropriate powers to fulfill that role;
WHEREAS, the GATT Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) incorporates special requirements related to border measures in Section 4 of Part III of its provisions;
WHEREAS, although the WCO Model generally represents an advance in providing the Customs Administration of members of the WCO with a tool for transposing the Customs related provisions of the TRIPS Agreement into their own national legislation covering the implementation of that Agreement, the WCO Model requires further amendment so that it accurately and comprehensively reflects the provisions of the TRIPS Agreement; and
WHEREAS, there are particular practical issues which arise from the implementation of the provisions of the WCO Model, and the underlying TRIPS provisions, on which INTA should comment based upon the interest and experience of its membership.
BE IT RESOLVED, that the International Trademark Association recommends to the WCO that it amend the WCO Model as set out in Part 2 of the accompanying report;
BE IT FURTHER RESOLVED, that the International Trademark Association encourages all nations, whether they be members of the World Trade Organization or not, to implement the WCO Model as so amended (Document #39640 E) and to incorporate the intent and purpose of its provisions into their national legislation at the earliest opportunity, taking also into account those matters of practical application which are set out in Part 3 of the accompanying report;
AND BE IT FURTHER RESOLVED, that the INTA Model Law Guidelines be amended to include the provisions of this Resolution.
TRIPs and the WCO Model
On November 20, 1996, the INTA Board of Directors adopted a resolution and report which sets forth the Association's position regarding the enforcement provisions in Part III of the Trade Related Aspects of Intellectual Property Agreement (TRIPS). In the resolution, the Association acknowledged its general support for Part III. However, the resolution also noted that there are recommendations for nations implementing TRIPS regarding additional measures that will enhance the enforcement provisions.
Section 4 of Part III of TRIPS incorporates special requirements related to border measures. To assist nations in implementing these requirements, the World Customs Organization (WCO) drafted a "Model." This Model is designed for use in the preparation of national legislation. It describes the appropriate powers which should be given to a national Customs service in order to assist in fighting counterfeiting and piracy in the context of trademark and copyright violations.
Review by INTA's Customs Procedures Subcommittee
Beginning in May 1995, a review of the WCO Model was undertaken by the INTA Customs Procedures Subcommittee. At the conclusion of its study, the Subcommittee found that the Model represents a significant step forward in strengthening the ability of national Customs services in combating counterfeiting. There are however, in the opinion of the Subcommittee, certain key provisions in the Model which can be further bolstered by nations when drafting implementing legislation. The attached resolution and report identifies these provisions and offers language or ideas for enhancing their effectiveness. Nothing in the current report or resolution is contradictory to the November 20, 1996 resolution on Part III of TRIPS.
Using the Resolution and Report
Adoption of the attached resolution and report will ensure that the recently approved INTA Model Law Guidelines will have a Customs related component. It will also serve as a basis for comments from INTA on future national customs procedure legislation. Finally, it will provide INTA Committees such as External Affairs and Treaty Analysis with a means to be proactive in nations currently experiencing significant counterfeiting problems