170. The representative of Brazil said that initiatives by Members to discuss IP enforcement at the Council had a long history. There had been a good deal of discussion on the matter in the period of 2006 to 2008. More recently, some Members had wished to discuss, for different reasons, the Anti Counterfeiting Trade Agreement (ACTA) at the Council. It had always been Brazil's understanding that enforcement was not an item on the Council's permanent agenda but had been included only at the request of one or more Members. At the present meeting, it was on the agenda at the request by the US delegation.
171. He fully recognized Members' right to draw the Council's attention to matters of their interest and might wish to share issues pertaining to their experience and domestic practices. However, that was not to be taken as recognition that enforcement should be debated regularly at the Council, nor that the Council had any mandate to adopt recommendations or best practices on enforcement.
172. Articles 1.1 and 41.5 of the TRIPS Agreement provided Members with leeway to implement the enforcement provisions of the Agreement according to their own priorities and their own legal systems and practice. Furthermore, Article 41.1 established that enforcement procedures implemented by Members had to be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. He said that this was worth recalling in view of the increasing number of measures that were being taken in the name of enforcement and for the purpose of combating trade in counterfeit and pirated goods.
173. He said that item K of the provisional agenda had originally been entitled "Exchange of Information on Securing Supply Chains against Counterfeit Goods", and he was glad to note that the title had been reformulated following China's suggestion. However, the title of the US document still did not adequately reflect its contents. While the title referred to counterfeit goods only, the document itself, by contrast, was not confined to counterfeit goods as defined by the Agreement with respect to trademark violations, but went much beyond that.
174. In some passages, such as for example paragraph 4, the document virtually equated counterfeit with substandard goods. While it was true that counterfeit goods were often substandard, substandard goods could very well be genuine branded goods. The fact remained that counterfeit and substandard were concepts applicable to different realities that only occasionally overlapped. Section II of the document further expanded beyond trademark counterfeiting by referring to seizures of "IPR infringing goods", including pirated copyright products. In the Council, Members should employ the definitions contained in the Agreement itself, as imprecise terminology often led to misleading analysis.
175. In concluding, he said, Brazil wished to thank the United States and Japan for having voluntarily provided the Council with a good deal of information of certain national practices on enforcement which would be conveyed to the relevant authorities in Brazil dealing with enforcement issues.
