A debate broke out at the 34th session of WIPO’s Committee on Development and Intellectual Property (CDIP) about a proposal from the United Kingdom on “Development of Strategies and Tools to Address Cross-Border Trade in Counterfeit Trademark Goods in Developing Countries.” The project aims to support customs enforcement against counterfeit trademark goods. If adopted, this would appear to be the first CDIP project focused explicitly on such border enforcement mechanisms. The project was criticized by many developing countries for not aligning adequately with the spirit and objectives of WIPO’s Development Agenda and was postponed until the next meeting.
The Development Agenda was adopted in 2007(WO/GA/34/16) to reorient WIPO’s IP activities to support sustainable development, emphasizing flexibilities, public domain preservation, and inclusive innovation. The Development Agenda was adopted at the same time multinational industries were pushing for new international norms on customs and border enforcement as part of the so-called “Enforcement Agenda.” See Susan K. Sell, The Global IP Upward Ratchet, Anti-Counterfeiting and Piracy Enforcement Efforts: The State of Play,, PIJIP Research Paper Series. No. 15, 2010), http://digitalcommons.wcl.american.edu/research/15/. Around this time, developing countries often blocked efforts of developed countries to reorient IP policy discussions toward work on enforcement. In this context, only one recommendation on IP Enforcement was included in the final 45 Development Agenda Recommendations, listed under “Other Issues,” and emphasizing “broader societal interests”:
45. To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.
Although other WIPO Committees, primarily through the Advisory Committee on Enforcement (ACE), work on IP enforcement capacity building, the issue has not been adopted into the CDIP’s work. Thus, the UK’s proposal breaks some new ground for the Committee.
The UK presented project CDIP/34/4 as a capacity-building initiative to help developing countries prevent the flow of counterfeit goods at their borders. It outlines a three-pillar structure: case studies on smuggling methods, operational guidelines for customs risk assessment, and training sessions tailored to national needs. According to the UK Statement at the CDIP:
“The primary objective of the proposed project is to strengthen the technical capability of the beneficiary countries to counter the threat of counterfeit goods entering their national borders. Given the large scale of cross-border counterfeit goods trade, this project if adopted will not only help protect the domestic economy and public safety of beneficiary countries but also strengthen IP enforcement to the benefit of trademark owners globally. The project is built on three pillars. First pillar will focus on the examination of the ways in which counterfeit trade markets enter the borders of the beneficiary countries. (…)The second pillar will aim towards enhancing the counterfeit risk assessment framework of each beneficiary country through the production of bespoke operational guidelines. (…)The third and last pillar concerns the provision of the capacity building programme including virtual and on-site training.
Strong concerns came from the African Group (led by Algeria), Nigeria, Brazil, Indonesia, Bangladesh, Lesotho, Pakistan, and others. The main arguments raised against the UK proposal focus on three core concerns.
First, the project frames counterfeiting as a problem specific to developing countries, reinforcing stereotypes and ignoring the global, transnational nature of illicit trade. For example:
Lesotho: “My Delegation views this formulation as inherently discriminatory and imbalanced. By singling out Developing Countries as the locals of counterfeit trade, the proposal reinforces harmful stereotypes and overlooks the global and complex nature of counterfeiting. This is not merely an issue of confined this is not merely an issue confined to any one region or development status. It involves supply and demand chains that spend developed and developing nations alike, including transit routes, manufacturing hubs and consumer markets across all levels of economic development. We are concerned that this approach risks stigmatizing Developing Countries, diverting attention from the need for shared responsibility, equitable cooperation and inclusive capacity building mechanisms. Moreover, it does not sufficiently account for the historical and structural trade imbalances that limit Developing Countries’ abilities to enforce Intellectual Property rights effectively.”
Nigeria: “The current text concentrates on border interdiction but pays insufficient attention to identifying, analyzing and dismantling the production and manufacturing hubs where counterfeit goods originate. Without shining a light on those upstream nodes, enforcement at the border will remain a costly game of catch-up. While enforcement capacity is important, the proposal overemphasizes seizure and risk profiling at the expense of public facing awareness, trader training, consumer education and private sector partnerships, all of which are indispensable for reducing demand and using the culture of respect for Intellectual Property. By concentrating resources on investigative and interdiction tools, the proposal risks diverting limited WIPO budget away from development-oriented priorities including MSME support, market formalization and innovation promotion.”
Second, the proposal was criticized for adopting an enforcement-heavy approach that prioritizes border interdiction over development-oriented measures such as capacity building for innovation, support for informal economies, and public awareness.
Algeria (on behalf of the African Group): “The African Group is not in a position to accept this proposal in its current form. We call on more developmental goal of this project which is currently centered around enforcement aspects.”
Third, it lacks alignment with the WIPO Development Agenda, particularly by failing to incorporate TRIPS flexibilities, safeguards against over-enforcement, and mechanisms to ensure proportionality and development impact.
Indonesia: “First, we are concerned that this project advances a predominantly investment-oriented approach which may not fully align with the core principle and objective of the WIPO Development Agenda. In particular, we note the absence of sufficient safeguards for informal economy and the lack of adequate consideration for flexibilities provided under the Trade Agreement, both of which are crucial for developing countries, including Indonesia. Second, we are concerned that the project could contribute to the normalization of WIPO involvement in IP enforcement at the border, a domain that has historically been sensitive and complex. Such an approach could inadvertently impact legitimate parallel trade and adversely affect small scale producers and informal traders.”
Bangladesh: “[T]he proposal probably falls short of adequately incorporating the development dimensions as required by the WIPO Development Agenda. Furthermore, we are of the view that the proposed project could have utilized a reference to the flexibilities embedded in the TRIPS Agreement, particularly Article 61. We would also like to note that this omission creates a risk of encouraging over-enforcement, especially in developing countries where informal economies are significant and where legitimate local production and parallel importation might be mistakenly targeted as infringement. Moreover, the proposal frames counterfeiting in a way that may unintentionally fail to take into consideration the socioeconomic realities of small traders, local manufacturers or informal sector actors. Our Delegation also notes the inadequate discussion around safeguards to prevent misuse of IP rights to suppress competition or restrict access to affordable alternatives.”
Pakistan: “My Delegation is of the view that the proposal could be made more balanced by incorporating necessary development safeguards and better reflecting the principles of the WIPO Development Agenda. We share the concerns highlighted by other Delegations regarding the risk of over-enforcement in countries where informal markets are vital for livelihoods. The proposal must take account of sustainable trade practices, TRIPS flexibilities and protection for legitimate practices such as parallel imports. Pakistan believes that projects under the CDIP must have a clear alignment with the Development Agenda.”
Brazil, a founding proponent of the Development Agenda, offered one of the most comprehensive critiques. It urged the Committee to realign the proposal with Recommendations 10, 11, and 45 and shaped by development concerns and proportionality, especially under TRIPS Article 61.
“[W]e have significant concerns that the project in its current form lacks a truly development oriented and balanced perspective. (…) First, it is critical to recognize that trademark counterfeiting is a global challenge, not one confined to Developing Countries. The framing of the project focuses narrowly on developing countries which risks a misleading narrative. In reality, illicit trade in counterfeits affects all nations whether as source, transit or destination.
(…) Second, the project’s enforcement heavy approach would benefit from a stronger balance between enforcement and development. (…) Brazil urges that the project explicitly align with the TRIPS standard to ensure that any tools or strategies developed focus on serious organized counterfeiting activity as opposed to penalizing trivial instances. Third, and most importantly, we believe the project should be reoriented to genuinely strengthen national IP systems in developing countries with an emphasis on local innovation and regional collaboration.”
During the second day of consideration of the project, Brazil continued to express their reservations:
Brazil respectively expresses its reservations regarding both the scope and the institutional placement of this proposal within the framework of the WIPO Committee on Development and Intellectual Property, CDIP. As we all know here, in 2007, WIPO adopted the Development Agenda, a landmark effort to align Intellectual Property policies with the developmental priorities of its Member States. In compassing 45 recommendations, the agenda sought to reorient WIPO focus from merely facilitating the acquisition and enforcement of IP rights to ensuring that these rights serve as tools for innovation, economic growth and social equity, taking into account the priorities and the special needs of Developing Countries, especially Least Developed Countries.
(…) The current proposal risks unnecessary duplication of those efforts and overlaps with well-established processes that already serve this purpose. Substantively, while the proposal references Development Agenda Recommendations 10, 11 and 45, it falls very short of embodying their core values, particularly the imperative to foster a balanced, developed, evidence-oriented approach to IP.
(…) For these reasons, Brazil suggests that the proposal either be redirected to the ACE where its enforcement focused activities can be more appropriately addressed and coordinated or redirected to the World Customs Organization which information provided by national states constitutes the richest datasets on mapping the economic impact of trade in counterfeit and pirated goods, particularly unique set of global customs seizure data that assess the damages to world trade caused by counterfeit and pirated goods.
In response, the UK expressed willingness to revise the proposal and clarify that case studies and risk profiles would be jointly shaped with beneficiary countries. But the larger issue remains: Can enforcement-heavy projects truly be considered “development” projects? The future of this project will likely depend on whether its goals can be redefined in a way that respects the core values of the Development Agenda: balance, equity, and development-led IP governance
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SECOND POST:
U.S. at WIPO: Rejecting SDG Alignment and Gender Equity Framing
During recent discussions at WIPO’s Committee on Development and Intellectual Property (CDIP), the United States delivered a series of remarks that sharply diverge from the multilateral tone of the organization’s Development Agenda, particularly regarding the Sustainable Development Goals (SDGs) and gender equality initiatives.
On the SDGs, the U.S. delegation made its position unambiguous:
“The United States does not support any proposal unrelated to WIPO’s mandate and intended to advance the implementation of the SDGs. The 2030 Agenda for Sustainable Development and the Sustainable Development Goals advanced a program of soft global governance that is inconsistent with U.S. sovereignty and adverse to the rights and interests of Americans.”
This position was reflected in opposition to both project-level tracking and institutional reporting on SDG-related impact:
“The United States does not support this Committee creating KPIs including for WIPO’s implementation of the SDGs. Member States may individually choose to work towards the achievement of the SDGs but it is not WIPO’s responsibility to do so.”
“The United States does not support the inclusion of additional reporting on the SDG-related challenges and lessons learned as part of the progress reports for ongoing projects.”
“An SDG-related section would be duplicative. The United States also does not support additional reporting for ongoing projects that exceeds the scope of the approved project parameters.”
Further, the U.S. explicitly objected to resource allocation for outreach activities explaining the connection between IP and the SDGs:
“While the United States does not object to WIPO conducting work within its mandate and in alignment with the 2024–2025 approved budget, we do not support the allocation of additional resources for the organization of awareness raising and capacity building initiatives designed to explain to a broader audience the links between IP and the SDGs, as any decisions affecting resource allocation need to be considered and decided by the Program and Budget Committee.”
On the topic of gender, under Agenda Item 7(b) – Report on Women and IP, the United States took a position that appears to break with the direction taken by WIPO and many other international agencies regarding gender-inclusive programming:
“The United States is committed to helping UN organizations, including the WIPO, to realize their full potential. To do so, these organizations must not, as in the past, champion divisive causes over the concerns of Member States.”
This included a rejection of gender diversity frameworks and inclusive terminology:
“It is the policy of the United States to use clear and accurate language that recognizes women are biologically female and men are biologically male. It is important to acknowledge the biological reality of sex to support the needs and perspectives of women and men.”
“The United States does not and will not support the implementation of any program that promotes any form of diversity, equity or inclusion, precepts or initiatives.”
The U.S. delegation concluded with a framing of equality based solely on individual merit:
“The United States believes every person deserves equal dignity and respect. The principle of equality is undermined when preference is given to any particular sex, for example, in place of recognizing hard work, achievement and individual performance.”
These statements present a clear and coordinated withdrawal from collective language on sustainable development and gender equity that has been widely accepted across the UN system. While the United States reaffirmed its commitment to WIPO’s core IP mandate, its insistence on narrowing the scope of development cooperation raises broader questions on how the WIPO’s Development Agenda can be fully implemented when one of its founding members rejects the inclusion of SDGs and gender equity as legitimate components of that agenda.
