India is yet to seriously take up with the European Union the alleged loopholes in the recent EU regulation on customs enforcement of intellectual property rights even as the public interest groups claimed that the new regulation was nothing better than the original one of 2003 that led to the seizure of Indian generic drugs and could pose serious hurdles again for Indian industry.
The public interest groups, including some global civil society groups, have alleged that the new regulation (Regulation No 608/2013) could not solve the problems and concerns that were part of the earlier regulation (Regulation No 1383/2003) in this regard.
However, sources in the Commerce Ministry said the government would look into the clauses in detail and take appropriate steps in time to resolve the concerns. But the sources refused to comment on taking up the issue again with the World Trade Organisation.
In 2008, shipments of legitimate generic medicines transiting through Europe were detained by customs authorities on allegation of intellectual property rights infringement. As many as 17 shipments were detained, 16 from India and one from China, prompting concerns at the global level, especially from the groups working for affordable medicines.
In response, India requested dispute settlement consultations in May 2010 at the World Trade Organisation with the European Union and the Netherlands, where the shipments were detained. Brazil, Canada, Ecuador, China, Japan and Turkey later joined the issue. The issue not fully solved.
The earlier regulation allowed the customs from the EU member States to seize goods in transit suspected to infringe ‘intellectual property’ rights, especially patents registered in Europe, without taking into account the fact that these rights may not exist without EU’s borders,” according to Act-Up Paris, a global public interest group.
The group pointed out that the updated version of the EU regulation was expected to solve the issue, but failed to do so. The new regulation “continues to allow the seizing of goods over a simple suspicion of ‘intellectual property’ infringement without checking beforehand whether these goods are headed to the European territory or just in transit.”
The group, in an analysis, said the EU did not take into account the December 2011 Court of Justice of the European Communities’ decision which stated that “goods coming from a third-party State and harming a trademark or an author’s right protected within the EU, could not be described as ‘counterfeit goods’ or ‘pirated goods’ just by entering the customs territory of the EU”.
“By allowing the checking and seizing of medicines in transit, and widening the span of controls to patent-related medicines, the EU is not only going further than what the TRIPS Agreement provides for, but also impedes the use of the flexibilities the South countries were granted. This legislation goes against the commitments taken by the EU regarding access to treatments,” according to Act Up Paris.