The Government of India has taken a strong stand against ACTA at international fora, including the WTO.

A paper submitted to the WTO in June 2010 by India states “They [ACTA proposals] represent a systemic
threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process
of individuals.” India has also pointed out that ACTA proposals break the “careful balance of the
interests of the right holders on the one hand, and societal interests, including development-oriented
concerns on the other”6. This position needs to be rigorously promoted and defended.

There have been positive signs of support pouring in from other similarly aligned nations such as China,
Brazil, and South Africa etc. Apart from working collectively with these countries, we need to develop
our independent foreign policy on such contentious issues which has been lacking over the years. Then,
of course, there can be no united front against such issues when there could be no consistency in our
approach.

The issue of 'ceilings', was raised by the Indian delegation when it noted that 'in addition to laying
certain minimum standards, TRIPS Agreement also provides „ceilings‟, some of which are mandatory
and clearly specified in the TRIPS Agreement'. Essentially, they contend that enforcement levels must be
maintained in accordance with the Objectives and Reasons for TRIPS and must not contravene its
provisions under any circumstance.

The impediments to legal processes, an adverse impact on competition, potential trade barriers and
increased cost of IP enforcement for private commercial rights. Article 41.5 of TRIPS states that no
government is obligated to allocate equal resources towards IP protection (private rights) and other
laws in general. TRIPS-plus provisions contained in the ACTA run contrary to it.

Cross-referencing (like in the EU-CARIFORUM agreement) mandates non-negotiating ACTA nations to

implement ACTA provisions as well, which is a serious cause for worry. The Caribbean countries would
find it increasingly difficult to account for the escalated cost of enhanced IP enforcement mandated by
the ACTA provisions.

The seizure of goods as an issue was repeatedly mentioned by Indian officials even before the TRIPS
Council meeting, since it involves a question of whether customs officials can seize good in-transit,
“suspected” of infringing trademarks, copyrights and other IPR's. The standard for determining a 'prima
facie' case warranting infringement that would inevitably attract a seizure has been made so low that it
goes against the TRIPS sentiment.
With the „in-transit‟ provisions, IPR holders can demand seizure of goods by custom authorities
without judicial intervention, which are contrary to TRIPS provisions (except in the case of copyright
piracy and TM counterfeiting). It ignores fundamental due process issues such as knowledge standards,
evidentiary requirements, competent investigation authorities and time-frames. The Indian delegation
has voiced its concerns in the words that it produces a 'general shift in the locus of enforcement which
enhances the power of IPRs holders beyond reasonable measure' and significantly curtails the ability of
an accused infringer to defend ordinary claims of infringement.

A FICCI paper has referred to an EU study on ACTA, which opined that there would be an infringement, if
a medicine or product is made for which a company holds a patent in any country irrespective of the
lack of clarity involved in the scope and validity of the said patent. Following the same line of argument,
production of spare parts may also violate an unexamined design right with unclear scope and validity.7

This document on ACTA cites the decision of the US Supreme Court in eBay Inc v. Merc Exchange
wherein the US Supreme Court has discussed the effect of grant of interim reliefs on public interest. The
Court has observed that an interim relief is effectively used as a bargaining tool when the terms of a
license are negotiated with the infringer and that the threat of an interim relief could help a right-holder
in unduly gaining an upper hand in the negotiations.

Further, the US Supreme Court asks Courts to wake up to the possibility of interim reliefs granted to
broadly-worded patents acting as stumbling blocks to advancement of public interest. Therefore, the
Court has advocated grant of damages over interim injunctive relief, where appropriate.

In one‟s opinion, there‟s another way of looking at this. On one hand, while it is true that enforcement
standards advanced by and through ACTA may not be in the best interests of all countries which are at
various stages of development, it is also true that unless and until enforcement is given its due, the State
is merely doling out paper tigers in the form of IP rights which at the end of the day add nothing to the
balance sheet of a right-holder but costs.8

The signing members of ACTA seem to have miscalculated the increasing importance of developing
nations, especially the BRIC countries, within international organizations. The declining strength of the
US and Europe in global institutions such as the WIPO is all too clear, and with countries such as
Argentina, Brazil, China and India mustering strength at international fora and realizing the need for
liberal IP regimes. There appears to be a serious impediment in the plans of the United States to simply
dole out membership invitations to ACTA and expect passive acceptance.9

Only recently Indian foreign trade minister had some achievement to boast about as the government
managed to settle the case of confiscation of 17 consignments of off patent drugs by European Union.10
The seizures were made by EU over last couple of years while the trade consignments were en route to
various African and Latin American countries. As per settlement, India withdrew its complaint on the
issue that was filed by it with WTO wherein it claimed the impugned action of EU as the violation of
multilateral international trade principles.

So far so good but last word is far from being heard on the ACTA issue and the government of India will
be better advised to use the said settlement to strengthen its case against the treaty which if passed in
its present form will allow EU and other countries to go about such seizures with utter impunity and
disregard for any of the developing nations‟ woes