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Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director, Intellectual Property & Competitiveness Department Economic Sector League of Arab States [email protected] Cairo

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Page 1: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges

National Strategies

Maha Bakhiet Zaki (Phd)Director, Intellectual Property & Competitiveness Department

Economic Sector

League of Arab States

[email protected]

Cairo

Page 2: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,
Page 3: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

Arab countries have paid early attention to combating commercial fraud and

protecting intellectual property rights, to the extent that some of such countries have

contributed to the international efforts aiming at the protection of intellectual property

and ratified a number of international agreements since nineteenth century, which was,

of course, within the colonial era.

Arab governments have always been exerting tremendous efforts to fight piracy,

counterfeiting and commercial fraud. However, one of the most important governmental

policies is developing the legal framework for combating piracy and counterfeiting.

one will find that almost all Arab countries have laws concerning intellectual property

and trademark protection.

It is well-known that the primary function of trademarks is to indicate the source

products. Nevertheless, with economic and industrial progress, this function has

developed. So trademarks do not only indicate the product source but also became a

symbol of product quality and marketing. Thus counterfeiting trademarks impedes the

trademark’s performance of its functions and harms the consumer.

Page 4: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

It is noteworthy that most of these laws listed a group of acts in which trademarks are

used for counterfeiting purposes. These acts are deemed a crime for which the

punishment is imprisonment and fines, where court’s right to confiscate the devices

and machines used particularly for the counterfeiting process is preserved. Moreover,

these laws provides for the right to claim damages or civil remedy. In all these cases

the infringed trademark shall be registered in the country concerned. Hence, protection

is conditioned by registration.

We do know that social and economic losses caused by commercial fraud and

counterfeiting, e.g. unemployment and loss of income tax returns, are concerns that

haunt governments in all countries. Therefore, international cooperation remains

essential for ensuring the implementation of appropriate border measures.

Combating piracy and counterfeiting obliges stakeholders to follow multi-directional

methodology or policy since the continuation of cross-border movement of counterfeit

and fake goods without any constraints or real counter-actions is un acceptable

Consumers’ protection, health and safety are superior to any other considerations.

Page 5: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

It is noteworthy that most of these laws contain a comprehensive list of acts in which

trademarks are used for counterfeiting purposes. These acts are deemed a crime for

which the punishment is imprisonment and fines, with court’s right to confiscate the

devices and machines used particularly for the counterfeiting process is preserved.

Moreover, these laws provides for the right to claim damages or civil remedy. In all

these cases the infringed trademark shall be registered in the country concerned.

Hence, protection is conditioned by registration.

We do know that social and economic losses caused by commercial fraud and

counterfeiting, e.g. unemployment and loss of income tax returns, are concerns that

haunt governments in all countries. Therefore, international cooperation remains

essential for ensuring the implementation of appropriate border measures.

Combating piracy and counterfeiting obliges stakeholders to follow multi-directional

methodology or policy since the continuation of cross-border movement of counterfeit

and fake goods without any constraints or real counter-actions is unacceptable.

Consumers’ protection, health and safety are superior to any other considerations.

Page 6: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

During the last ten years, Arab countries have exerted huge efforts in developing

trademark legislations within the framework of WTO Arab Member States’ compliance

with their commitments under the Agreement on Trade related Aspects of Intellectual

Property Rights (TRIPs).

Regarding Arab countries’ situation vis-à-vis international agreements, most of Arab

countries are members in the most IP conventions, namely Paris Convention for the

Protection of Industrial Property.

However, the conventions concluded before TRIPs Agreement have neglected the

enforcement issue and sufficed by setting substantive rules for ensuring protection at

the international level since a long time, without developing the rules and provisions

that guarantee the enforcement of the texts of such conventions in state parties.

Page 7: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

The characteristic with which TRIPs agreement is distinctive from other international

conventions pertaining to several intellectual property domains lies in its great

interest in the enforcement of IPRs. TRIPs has also been concerned with setting

substantive rules for providing a minimum level of intellectual property rights in

different member states. It has also paid due attention to setting decisive procedural

rules to guarantee the implementation of the protection standards provided for

therein.

Customs have played a distinctive role in the enforcement of the provisions on IPR

protection in custom outlets. Customs used to clear products carrying registered

trademarks if the importer is a person other than the trademark right holder based on

the approval of trademark registration competent authority in the respective country.

However, following the provisions of Articles 51-60 in TRIPs Agreement, the current

custom procedures are, different from the past applicable procedures.

Generally, TRIPs Agreement has addressed the enforcement of intellectual property

rights in Section III thereof, namely in Articles (41-61). These articles set forth the

general commitments (Article 41), administrative and civil penalties and procedures

(Articles 51-60) Border measures, and criminal procedures (Article 61

Page 8: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

TRIPs provided for a new role of customs, which, in turn, made customs authorities a

genuine partner in combating commercial fraud, e.g. Article 69 of TRIPs stipulates

that “Members agree to cooperate with each other with a view to eliminating

international trade in goods infringing intellectual property rights. For this purpose,

they shall establish and notify contact points in their administrations and be ready to

exchange information on trade in infringing goods. They shall, in particular, promote

the exchange of information and cooperation between customs authorities with

regard to trade in counterfeit trademark goods and pirated copyright goods.”

Some Arab countries has been committed to the provisions of Article 69 of TRIPs

and issued resolutions on establishing contact points. These countries include Egypt

where a Ministerial Decree has been issued in 1997concerning the establishment of

an IPR-protection contact point to be the link between WTO and the Egyptian bodies

responsible for the enforcement of IP conventions and to assist customs authorities

vis-à-vis border measures.

Page 9: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

Many Arab countries have developed their legal systems and clearly defined the role

of customs authorities, and custom procedures to be taken upon suspension of

custom clearance as well as judicial procedures after custom clearance suspension.

Most customs administrations in Arab countries cooperate with Regional Intelligence

Liaison Offices, World customs Organization (WCO /RILO) in Riyadh and cooperate

with other countries regarding the exchange of information related to commercial

fraud in order to take custom procedures needed for seizing trademark infringing

goods.

A number of customs administrations in Arab countries have established units to

combat commercial fraud and to protect intellectual property, which in itself

represents a development in the fight against piracy and counterfeiting, as well as an

addition to relevant governmental efforts (e.g. Bahrain, Jordan, Sudan, Egypt).

Page 10: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

LAS Efforts

Page 11: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

An overview of Intellectual Property & Competitiveness Department

MOU between LAS and WIPO, July 2000

LAS Council Resolution No. 9071, dated 12th of March 2001.

LAS SG Resolution No. 89/1 on 4/4/2012 concerning the establishment of the Intellectual Property & Competitiveness Department within the organizational structure of the Economic Affairs Sector.

Intellectual property &Competitiveness Department has participated in a number of activities on “ Custom efforts for combating counterfeiting and Fraud and IPR protection, in addition to holding various proceedings, including:

The regional Arab Conference on National Custom Efforts for Combating Counterfeiting and Fraud and IPR Protection”, co-organized by LAS IP Department and the IP Office in U.S. Embassy in Cairo in LAS premises on 27-28 April 2010.

Page 12: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

The most important recommendations of this conference are:

The IP Dept. and Customs Dept. in the league of Arab states are called to utilize LAS information network concerning intellectual property management in order to facilitate the exchange of information in the infringement of intellectual property.Customs authorities shall necessarily utilize of the information registered in trademark offices in Arab states in distinguishing between genuine and counterfeit products.Customs authorities in Arab countries shall necessarily practice more competences vis-à-vis free zones and trans-border goods to halt smuggling and movement of fake and counterfeit goods.Establishing IP units in custom administrations to combat commercial fraud and to connect such units with IP offices in Arab countries. The Third Arab Forum on Anti – Commercial Fraud .Counterfeiting And Intellectual Property Rights Protection- Saudi Arabia- March 2013.

Page 13: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

Bahrain Customs’ Seminar on Intellectual Property and Combating Piracy.

The seventh meeting of the Technical Committee for enacting Arab guidance Act on the Protection of Intellectual Property Rights, held in Beirut on 8-10 January 2013, has recommended the following.

Pursuant to the Council of Arab Ministers Resolution No. 911, issued by its 27th session held in Cairo on February 2012, in relation to incorporating a full chapter on border measures within text of the Arab Guidance Act on the Protection of Intellectual Property Rights , based on the output of the 7th meeting of the Technical Committee .Chapter 8 in the Draft Act (Articles 153-157) provided for “Border Measures for the Protection of Intellectual Property Rights.”

Page 14: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

Assigning the director of the Intellectual Property & Competition Department (Head

of Committee), to prepare an explanatory memorandum on the draft Arab Guidance Act on the Protection of Intellectual Property Rights, and the Final Provisions and to have it circulated to the LAS member states to express their views, proposals and remarks (if any) and forwarding such feedback to LAS to be then referred to the Committee for consideration at the committee’s next year meeting.

Page 15: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,
Page 16: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

In conclusion, Regional Efforts can be summarized in the following:

Legal or legislative framework . Accession to international conventions and working with relevant

international organizations and bodies concerned. Establishing database involving all agencies concerned with combating

piracy, counterfeiting and commercial fraud; Providing human and financial capacities to effectuate the regulatory role in

the field of combating counterfeiting and commercial fraud; Intensifying training programs for counterfeit goods control officers; Educational programs and media campaigns to raise awareness of the

importance of the fight against counterfeiting and commercial fraud. Cooperation and coordination among concerned departments within the

same country, such General Custom Administration, Industrial Property Department and Consumer Protection Administration;

Full cooperation and coordination with the Private sector and civil society organizations;

Page 17: Fight Against Piracy and Counterfeiting in Developing Countries and LDCs: Progresses and challenges National Strategies Maha Bakhiet Zaki (Phd) Director,

For more informationFor more information : :

[email protected]

www.arabip.org

Thank You