The European Commission (European Commission) released a semi-annual report on IPR protection and enforcement in third countries (hereinafter referred to as the “Third Country Report”) on January 9, 2020.
The “Third Country Report” pointed out that the status of IPR protection and enforcement in countries outside the European Union has received great attention, which has prompted the European Commission to update its current list of priority observation countries. The purpose is to improve the global IPR protection and enforcement situation, and inform right holders, including small and medium enterprises, of the potential risks they may encounter when conducting business in certain countries. The “Third Country Report” included the protection of plant variety rights for the first time.
The European Union Intellectual Property Office (EUIPO) through its observatory, write the “Third Country Report” in various observations and provide technical assistance.
Highlights of the Third Country Report:
The updated priority countries are divided into three categories:
The first priority observation country: China.
The second priority observation countries: India, Indonesia, Turkey and Ukraine.
The third priority observation countries: Argentina, Brazil, Ecuador, Malaysia, Nigeria, Saudi Arabia and Thailand.
The important findings in the report are summarized as follows:
1. The mandatory technology transfer imposed by China on foreign companies is still an institutional issue, which is not conducive to investment and puts foreign companies (especially in high-tech fields) at risk of losing their competitive advantages.
2. In many countries, especially Mainland China and India, low protection of trade secrets and theft of intellectual property rights have caused irreparable harm to European companies.
3. In all the countries listed in the report, ineffective IPR enforcement is a serious problem. The main problem with IPR enforcement is related to lack of political determination and resources. It also reflects the lack of sufficient technical infrastructure, capacity and resources in these countries, the lack of professional capabilities of judicial and law enforcement authorities, and the lack of public awareness of the value of IPR.
4. In many EU trading partners, counterfeiting is still rampant, causing serious loss of income of the EU and local industries. The problem of counterfeiting is particularly serious in China, which is the main source of counterfeit goods imported into the European Union. India and Southeast Asian countries such as Indonesia, Malaysia, Thailand, Vietnam, etc. are also important sources of counterfeit goods, and transit transportation hubs such as Hong Kong (China), Saudi Arabia, Singapore and the United Arab Emirates also play an important role.
5. The problem of copyright piracy, especially piracy through the Internet and satellites, remains a main issue in the European innovation industry. Piracy problems are widespread in countries such as Argentina, Brazil, China, Ecuador, India, Indonesia, Mexico, Russia, Saudi Arabia, Thailand, Ukraine, and Vietnam, etc..
6. A serious problem in law enforcement is that the customs authorities lack the power to detain, detain or destroy counterfeit and pirated goods at the border ex officio, or take actions against goods in transit. In terms of border enforcement systems, Canada, Ecuador, India, Indonesia, Mexico and Thailand are particularly in need of major improvements.
7. Counterfeit and pirated goods are usually not destroyed by law enforcement agencies, but returned to the market. Sometimes it is because the destruction process takes too long, or for the right holder, the cost is so expensive that they dispel the idea. In terms of destroying infringing or suspected infringing goods, the countries that are worrying are India, Indonesia, Mexico, Nigeria, Saudi Arabia and the United Arab Emirates.
8. The sanctions and penalties for IPR infringement are too light to play a deterrent effect. This is true in countries such as Argentina, Brazil, India, Nigeria, Russia, Saudi Arabia, South Korea, Thailand, Turkey, the United Arab Emirates and Vietnam, etc.. Regarding patent and trademark registration and related procedures (for example, renewal or opposition), the intellectual property offices of Argentina, Brazil, India, Thailand and the United Arab Emirates have a backlog of cases. In some countries (such as Brazil and Thailand), patent examination time is too long, accounting for most of the patent period.
9. Indonesian and Ecuadorian patentees are obliged to work patents locally, which creates legal uncertainty and is not conducive to innovation. These requirements force patent holders in Indonesia or Ecuador to manufacture patented products or use patented processes in that country. Failure to comply with the implementation requirements will lead to the risk of compulsory license.
10. The restrictive patentability benchmarks adopted by Argentina, India, Indonesia and Russia have weakened or eliminated the drive for innovation, especially in the pharmaceutical industry.
11. The failure to recognize the right to geographic indications (GI) in Internet domain name disputes (UDRP-Uniform Domain Name Dispute Resolution Policy) has accelerated the marketing of counterfeit goods.
12. The examination criteria for approving the use of compulsory license are quite broad, vague and arbitrary, weakening the current patent protection measures in Ecuador, India, Indonesia and Turkey, especially in the pharmaceutical industry, chemical medicine industry, and other sectors that promote local production. Another serious problem for the industry is the intervention of the Brazilian health department and the Russian competition authority in the protection of pharmaceutical patents. In addition, the patentee’s report is another area of continuing concern that some countries lack effective mechanisms to protect undisclosed tests and other information generated to obtain approval for the marketing of medicines and plant protection products. This issue affects European companies, mainly in Argentina, Brazil, China, India, Indonesia, Malaysia, Russia, Saudi Arabia, Ukraine and the United Arab Emirates.
13. With regard to the problems that have occurred in the operation of the collective management system of rights in Nigeria, Russia, Ukraine, and Thailand, it has caused losses to rights holders and mistrust of users, and ultimately has a negative impact on the innovative industries of these countries.
14. Many trading partners of the European Union have not yet joined important international conventions. For example, China, India, Indonesia, Argentina, Brazil, Ecuador, Malaysia, Mexico, Nigeria, Saudi Arabia, Thailand, the United Arab Emirates, and Vietnam have not yet joined the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, and with the exception of Vietnam, it has not yet joined the “International Union for the Protection of New Varieties of Plants” Act 1991 (UPOV 1991). Argentina, Ecuador, Malaysia, Nigeria, Saudi Arabia and the United Arab Emirates have not yet joined the Madrid Agreement on the International Registration of Marks and the Madrid Protocol. Brazil, Saudi Arabia, Thailand and Vietnam have not yet joined the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Argentina has not yet joined the Patent Cooperation Treaty.
15. Regarding the protection and enforcement of plant variety rights, the problems faced by EU breeders can be summarized as follows: (1) Lack of effective plant variety rights legislation (according to the UPOV Convention 1991 Act); (2) without UPOV membership (3) It is difficult to effectively implement the administrative procedures of the competent authorities of the designated country; (4) There is a lack of effective judicial and administrative systems for collecting and enforcing royalties.
Released by TIPO
