Even as the European Parliament is meeting in July to give its final voting on the proposed Anti-Counterfeiting Trade Agreement (ACTA), the international medical humanitarian organization Médecins Sans Frontières (MSF) has appealed to the contracting states not to sign and ratify the Agreement unless all concerns related to access to medicines are fully addressed.

Terming the Agreement as a 'Blank Cheque for Abuse', MSF said that the Agreement is flawed and should not be accepted in its current form.

Enlisting the concerns, the international NGO said that ACTA is not restricted to trademark counterfeiting. All types of trademark infringements including civil trademark disputes are included in the purview of ACTA. The risks to access to medicines of such overboard trademark provisions have been recently highlighted when medicines were detained in Germany based on the wrong assumption that a generic medicine, using the required international non-proprietary name (INN) ‘amoxicillin’ to describe the contents, infringed GSK’s trademark on the brand name Amoxil (which besides is itself a use of the INN).

Although ACTA excludes patents from border measures and criminal enforcement sections, the risk that ACTA’s civil enforcement provisions will extend to all IP rights, including patents, still exists. Civil enforcement provisions are applicable on patents unless specifically excluded by an ACTA member state.

ACTA provisions clearly threaten access to medicines as they include stricter and enhanced enforcement measures by exposing third parties to the risk of enforcement in relation to allegations of trademark infringement and potentially patents infringements. Third parties such as API producers; distributors; retailers; NGOs, such as MSF, who provide treatment and funders who support health programs are at risk of injunctions, provisional measures, and even criminal penalties, including imprisonment and severe economic losses.

Appealing the contracting nations not to sign the Agreement, MSF said that ACTA should only be applicable to willful copyright and trademark counterfeiting on a commercial scale. It should exclude both patents and civil trademark infringement from the scope of the agreement. In should not establish third party or aiding and abetting liability and should not include TRIPS-plus measures on civil and criminal enforcement mechanisms.

Besides, the Agreement should include protections against abuse, including judicial review, penalties for abusive litigation and baseless allegations, access to information for the alleged infringer, and the obligation to consider proportionality and the public interests in setting the remedy. Moreover, it should also have to ensure that any institutional structure established through ACTA be open and transparent. It should not have the authority to amend ACTA without public scrutiny and approval from elected democratic bodies.