Following recent widespread criticism, the European Commission has decided to refer the Anti-Counterfeiting Trade Agreement (“ACTA”) to the European Court of Justice (“ECJ”).   The ECJ will be asked to assess “whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property”.

The Commission recently published a factsheet in an effort to demonstrate that the ACTA negotiations were held in a transparent manner. The aim of the factsheet is to clarify “the way the European Parliament, civil society and all stakeholders have been informed and involved in the negotiation process” relating to ACTA.  At the same time, a consortium of over 70 businesses, together with the International Trademark Association, has addressed a letter to the European and National Parliaments urging them to endorse the Agreement, which they consider “an important international framework for stronger, TRIPS-Plus enforcement against trademark counterfeiting”.

ACTA is between the EU, the US, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland. Opposition to ACTA mainly stems from concerns relating to the nature of the consultation process and specific aspects of the draft legislation concerning internet service providers.

The aim of ACTA is to strengthen the enforcement of intellectual property rights, including online, and to help combat counterfeiting and piracy of goods including luxury brand clothing, music and films. It includes provisions on civil, criminal, border and digital-environment enforcement measures, cooperation mechanisms among ACTA parties to assist in their enforcement efforts, and the establishment of best practices for effective enforcement of intellectual property rights.

Contributed by Brian McElligott.