IP trade talks between EU and India leaked
Not-for profit organisation Knowledge Ecology International (KEI) has published a draft text reportedly leaked from the intellectual property chapter of a draft trade agreement between India and the EU.
India and the EU have been holding bilateral trade agreement negotiations since 2007. In February, India and France said they expected the agreement to be signed in April this year and on March 7, commerce and industry minister Anand Sharma said at a forum held by India’s Chamber of Commerce that talks are at a “very advanced” stage.
It is unclear how much of the IP chapter of the agreement the reported leak represents. As Iain MacVay, partner at Bird & Bird LLP and head of the firm’s trade and customs practice pointed out, there is no mention of geographical indication rules or of the relationship between regulatory approvals of and the duration of IP rights over chemical and pharmaceutical products.
But the text does outline provisions for border measures, injunctions and co-operative IP enforcement efforts.
Article 31 proposes establishing an IP subcommittee to monitor provisions outlined in the leaked chapter, and stresses the need for enhanced co-operation between Indian and EU customs authorities. Article 23 explicitly states that in commercial infringement cases, judicial authorities should have the option of seizing infringers’ property and assets.
Articles covering precautionary measures, damages and legal costs in infringement cases are taken from or based on the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).
MacVay said the leaked text is likely to be only a part of the agreement’s IP chapter, as several elements of the EU-Korea Free Trade Agreement, which was signed in 2011, are absent.
“It is, however, encouraging that the draft makes reference to a specific commitment to review the provisions at a set time in the future with a view to enhancing protection and enforcement of intellectual property and, presumably, to promoting common understanding of best practice in the regulation of IP. Such a 'living agreement' approach is sensible and I hope the final version provides for ongoing dialogue as well as establishing a date for detailed review,” he said.
While the trade agreement presents an opportunity to increase understanding of IP laws and their application, MacVay said negotiators should be aware of the risk of “creating a complicated set of detailed rules and practices.”
“Consistency of approach would be helpful in moving toward [a] common understanding of the application of IP laws, although this is a very difficult task for trade negotiators - especially in an environment characterised by deep politicisation of IP rights issues,” he said.
The European Commission declined to comment on the leaked text but spokesperson John Clancy said: “A comprehensive trade deal between Europe and India would be good for business on both sides. Talks are on-going and we hope progress can be achieved in the coming months”.
