GLOBAL CONGRESS ON COMBATING COUNTERFEITING AND PIRACY

MEXICO 2009JUSTICE LOUIS HARMS

THE ROLE AND READINESS OF THE JUDICIARY IN DEALING WITH

COUNTERFEITING AND PIRACY

The issue

“The principal novel feature of the Trips agreement was the enforcement mechanism to stem trade in counterfeit and pirated goods but subsequent statistics suggest that this objective has been a signal failure” – Prof Blakeney (2009).

To what extent has the judiciary contributed?What are the causes?What is the cure?

Role of judiciary in IP enforcement

WIPO: responses [from member states] were clear that the judiciary should be fully aware of the seriousness of IP crimes and how to deal with offenders, and also with the infringing goods and implements used in manufacturing.

The donkey and the carrot

IP litigation “presents a significant direct link between judicial system performance and economic development.”

A donkey will not chase after a carrot on a stick unless he is allowed to catch it once in a while. And innovators will not invest unless they believe that the IP promise is real.

Judiciary is at the end of the food chain

The judiciary is dependent onLaws and procedures that are at least

TRIPS compliant.Law enforcement agencies. Prosecutorial services. Proper court services. Rights holders.

SYSTEMIC PROBLEMS

10/04/23

6

Cultural attitudesAmbivalent attitude towards IPGeneral levels of criminalityJudicial prioritiesOver-burdened courtsQualification of the judiciaryLack of judicial education

THE RESULT

Delay. Delay. Delay.Poor discretionary decisionsBad judgmentsInappropriate sentencesLack of confidence in judiciary