Merging ACTA into TRIPS: Does TRIPS-Based IP Enforcement Need Reform?

Abstract

The 20 years that the TRIPS Agreement now boasts are a long time in IP legislation: The world has changed, but TRIPS has not. Should it have changed? After all, we have seen a number of recent initiatives for new multilateral IP regimes in free trade agreements such as, to name just a few, TPP, RCEP, TTIP or, of course, ACTA. These multilateral initiatives may in fact tell us something about the state and quality of TRIPS: Perhaps, they answer to needs not considered and provided for in TRIPS or contain new, better approaches to known issues. The consequence of an affirmative answer would be that clearly, a revision or an abandonment of TRIPS should be contemplated. This contribution compares the enforcement provisions of two recent agreements, the failed ACTA and the TPP currently under negotiation, to TRIPS for an analysis of where differences lie and how any differences should be assessed.