ACTA: first suggestions received

Following Friday's request for assistance from readers regarding those issues within the Anti-Counterfeiting Trade Agreement (ACTA) which most require serious treatment in the form of analysis in JIPLP (see "ACTA: the search for the key issues", here), this weblog has already received some helpful suggestion:

"Border enforcement

• If Customs can act on its own without a court order and without rights holders information, how can a port inspector possibly determine what is counterfeit versus a parallel import?

• Many importers cannot afford to fight a Customs determination of infringement for low value shipments. Is administering civil fines for infringing goods which is oftentimes an undefined quality appropriate?

• If Customs can act on its own without a court order and without rights holder information, won't some IP necessarily be granted more "free" border enforcement? In other words, won't a Customs official be more likely to recognize a counterfeit version of a famous mark and not one of a not so famous mark? How can Customs officials possibly know of all trademarks that are actually registered without checking all of the marks on all the goods on all of the shipments in order to provide non discriminatory treatment at the border -- and this won't happen as a result of limited resources and the need not to add to entry delays?"

"Enforcement in Digital Environment

• How can governments orders ISPs to turn over subscriber information to an unrelated rights holder upon an allegation of infringement? Why is this not protected business information? Does the ISP own this information so that it has the right to give it away?

• How can privacy be protected in a digital environment with so much prejudice in favor of rights holders? Who owns information related to commercial transactions involving two or more parties both of whom may be unrelated to the rights holder or the ISP and who has the right to disclose that information?"

The weblog thanks Lauren V. Perez (LVP Solutions) for these bullets and looks forward to receiving more from other readers.