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New Delhi: India has opposed the proposed European Trademark rules that will allow European Union (EU) customs officials to seize goods in transit on grounds of suspected trademark violations. India fears the provision will be used, like in the past, to seize low-cost generic medicines headed for African and Latin American countries at EU ports.

In April this year, the European Commission, the executive body of the EU, reached an agreement on the trademark reform package which needs to be put to a final vote in the European parliament and could come into force in the beginning of 2016.

This will lead to major changes in the trademark law of the EU and its member states when it is implemented. It aims to protect businesses in the bloc from counterfeit goods and encourage innovation.

A government official said India has written to the EC, however, it is yet to receive a reply. “The notification of the commission is not clear. We are protesting because trademarks can be confused with patents by customs officials which could lead to confiscation of generic medicines," the official added.

India and the EU have a history of tussles over generic drugs. In 2008, there were 17 cases of medicine seizure in the Netherlands alone, according to a response from Dutch authorities to Health Action International, a non-profit organization, under a freedom of information request. Of these, 16 were shipped from India and one from China.

India initiated dispute settlement consultations in May 2010 at the World Trade Organization with the EU on the issue of detention of Indian generic medicines while in transit.

The dispute was triggered by repeated instances of seizure at EU ports, particularly in the Netherlands, of Indian generic drugs meant for export to Latin American and other countries in 2008. However, both sides reached a settlement in 2011 and the EU agreed not to seize generic drug consignments in transit through its territory.

Helle Aagaard, EU policy adviser with non-profit Médecins Sans Frontières’ Access Campaign, said these new rules will increase the risk of abuse by intellectual property rights holders, which could result in harmful delays, seizures or even the destruction of legitimate generic medicines in transit through Europe on their way to people in developing countries. “Any wrongful seizure and detention of generic medicines in transit can lead to harmful, and even fatal, delays for people who need access to life-saving medicines," she added.

The tussle with EU over generic drugs took an ugly turn recently when India indefinitely deferred a meeting between chief negotiators of both sides to revive talks on the long-delayed free trade negotiations, stating it was “disappointed and concerned by the action of EU in imposing a legally binding ban on the sale of around 700 pharma products clinically tested by GVK Biosciences, Hyderabad," on 16 July.

EU defended its action saying the ban was based on scientific and not trade considerations and in keeping with the advice of the scientific committee of the European Medicines Agency (EMA), according to Cesare Onestini, acting head of the delegation of the EU to India.

India could lose about $1-1.2 billion worth of drug exports because of the decision taken by the European Commission to ban the drugs, according to lobby group Pharmaceuticals Export Promotion Council (Pharmexcil).

The country exported $15.4 billion worth of pharmaceutical products in 2014-15, with Europe accounting for $3 billion. Out of the $3 billion, exports of generic medicines constituted about $1 billion and drug ingredients accounted for the rest, according to Pharmexcil.

In a joint statement during the visit of German Chancellor Angela Merkel earlier this month, both sides expressed their “strong commitment to the EU-India Broad Based Trade and Investment Agreement and to bring about a resumption of the negotiations as soon as possible".

Leena Menghaney, head-South Asia, Médecins Sans Frontières’ Access Campaign, said before rushing into negotiations with the European Commission, India should take into consideration the outcome of the Trans-Pacific Partnership (TPP) agreement negotiations that concluded last week. “The big losers in the TPP are patients and treatment providers in developing countries who will face increased levels of IP (intellectual property) barriers in procuring affordable generics, largely produced by India. The negative impact of the TPP on public health will be enormous, and will be felt for years to come and it will not be limited to the current 12 TPP countries, as it is a dangerous blueprint for future agreements," she added.

India and the EU have missed at least four deadlines to clinch a free-trade accord, called Broad Based Trade and Investment Agreement, even after 15 rounds of talks.

A prolonged recession in the EU, and its focus on concluding the Transatlantic Trade and Investment Partnership agreement with the US also delayed progress.

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