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Complete summary International Intellectual Property Law
Complete summary of all the lectures from International Intellectual Property Law (Senftleben)
[Meer zien]Voorbeeld 4 van de 35 pagina's
Voorbeeld 4 van de 35 pagina's
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Voorbeeld van de inhoud
IPR week 1International there is a big discussion going on about the IE-rights in developing countries
What is intellectual property?
- It does not protect something substantive; if you burn a book you don’t violate the IE-
rights
- Industrial property on the technical part
o Technical innovation enjoys protection under patent law. Patent law does not
need the inventor to invent something to change the world, it can also be
something that is rather simple from a technical perspective.
- Trademarks
o The concept of trademarks is that you attach something to a product to a
service that you are offering to make clear that the service that you are
offering is brought by your company trade related
o Esthetical innovation is another part of industrial property; protects products
that looks nice. For the design industry for example relies heavily on
protection of industrial design. Overlap with industrial property and copyright.
For example a watch also have this cultural and artistic feature that
makes it suitable for copyright.
- Copyright relates to culture.
o Literary and artistic work. It can also concern mainstream productions,
movies, college notes can also have copyright protection if they have
something original to it. It covers all types of creative outcome. For the person
who creates/composes the right
o Neighbouring rights: for persons who further contribute to the work of art
- In a lot of countries, it is possible to have multiple kind of protection. Both copyright
protection and industrial design protection for examples.
Market transparency – protection of distinctive signs
We also want to ensure that consumers know what they are buying. You should be able to
rely on the Apple logo if you go to the shop and buy a apple computer. In the Industrial
property law there is also a framework to protect the consumer.
- Trademarks, this goods or services stands for my enterprises
- Tradenames, the name the company uses for itself
- Geographical indications; this relates to indicates that you really can find on the map.
If products have a certain origin and therefore a certain quality. A good example is the
champagne. This region has become famous for sparkling wine they managed to
obtain protection for the name champagne as a geographical indication.
Overview of the system: i
There are protection mechanisms that origins in different areas of domains. For example
industrial designs is overlapping. It has all three of domains.
- Culture/copyright law; fanciful chair protected by copyright
- Technology patent law; a fanciful design is still a chair, you have to sit on it, so there
is a functional technical aspect to it
- Trademark law commerce; sometimes a shape is so known for the product itself, the
shape become a trademark itself
Complex products
, - You are the producer of a car and you seek IE protection for all the innovate aspects
of the car to make the car as good as possible
o Patent protection for the technical aspect of the car
o You will make sure that the trademark is registered of the car, because you
don’t want other companies to use your brand
o For the appearance of the car, you will seek for protection in the copyright
protection or in the industrial design protection.
- It is a standard situation that a product on the marketplace has several IE-protection
rights from several domains.
International treaties
- Problem of the principle of territoriality. IE-protection requires legislation and it is a
choice of countries to have this laws. It always rests on a national territorial decision.
There is a fragmentation in terms of the grant of rights, because it always will be
territorial. So why is this a dilemma?
o IE does not stop at the borders of countries. On the one hand there is
protection in the national state, but the IE is not limited to the borders of
countries. Solve this? What do you do if you want to ensure that IE-holders
enjoy protection in other countries?
Solution I: Bilateral agreements: Based on reciprocity; this is based on mutual
recognition.
o Recognize and accept each other IE rights. This is how the crossborder IE
rights started in the EU-region, by bilateral agreements. What is it worth to
have all these bilateral agreements? It becomes very unclear how everything
works. EU countries establish IP international framework.
Solution II: International IP treaties
- Copyright and neighbouring rights (Berne 1886/1976 (last revision conference))
- Industrial property (patent, industrial designs, trademarks) (Paris 1883/1967 (last
revision conferece))
o Since these time the international protection has become very successful with
the international harmonisation. The acceptance of international protection
standards goes very far.
WIPO
- Under the umbrella of the United Nations systems
- Administering the old conventions as the Paris and the Berne convention. They ensure
updates of the treaty text. The law is always that must be developed further.
- They develop additional IE-treaties who concern different kinds of IE-protection.
o Madrid agreement and protocol tries to make it easier to international
registration.
Basic idea underlining the treaties is establishment of Unions
- Berne – art. 1 establishes an international union what is likeminded and what enjoys
similar protection for copyright
- Paris – art. 1 same provision in the Paris convention, they want to constitute a union
for the protection of the industrial property.
Minimum standards of the treaties: whatever you do in your national context, you have to
follow at least these rules to establish some kind of protection.
, - National treatment: the judge in the country where the IE is protected, will treat all
other foreigners the same as nationals regarding to IE-protection laws that is a
member of the Union. (art. 5 Berne jo art. 2 Paris)
o Positive aspect: foreigners in countries with a generous protection will also
enjoy these generous protection rights
o Negative aspect: a country with basically no IE-protection rights and
foreigners come and ask protection under the Paris convention and they will
treat you as a national of that country your protection will be basically zero.
Foreigners will get the same bad treatment as nationals. But
- Minimum rights
o Even if there are no national IE-protection rights, there are international
minimum standards. Foreigners also enjoy the minimum rights especially of
the Berne convention/Paris convention. In this way there are certain minimum
rights. (art. 5 Berne jo art. 2 Paris). If national treatment is better than
international minimum standards, you enjoy the rights of the national law. If
the national treatment is less than international minimum standards, the
international minimum standard applies.
o Relation between foreigners and nationals is weird in the second situation,
because foreigners are more protected than their nationals. IE can’t interfere
with domestic national law and its own protection of nationals. this
situation is not sustainable and you will get actions within a country to
improve the rights of the nationals. In this way the international rights become
a template for national IE-law.
Protection become more broadly available
The international rules become a template/model for the national
legislation, because it does not makes sense to offer more protection
for foreigners than nationals.
WTO
- TRIPs Agreement (1995)
o Most important IE-agreement in this time. The other agreements could not be
further revised, because there where too much member states that had have
common ground to revise the agreements. (outdated)
o Most substantive international standard
- Marrakesh Agreement (GATT 1994) – further agreement on trade
- Inclusion of the intellectual property system in global trade regulations
before the TRIPs agreement the protection was really an issue for countries that
wanted to do it on own initiatives. With the TRIPs agreement this changed, because
IE is imbedded in the international trade architecture.
o If a country is not interested in IE-rights in the trade context, other countries
can tell them that it will have negative consequences for their trade. Otherwise
you are outside the international trade system. If you want to give your
national industry access to the international trade, you have to accept the
TRIPs. Otherwise you cannot join the WTO. So it is a pre-inquisitive to join
the WTO. They will make an assessment of advantages and disadvantages to
join the WTO and also accept TRIPs.
o The step is also remarkable because the further principle is most favoured
nation:
, TRIPs art. 4
- Most-favoured-nation treatment: With regard to the protection of intellectual
property, any advantage, favour, privilege or immunity granted by a Member to the
nationals of any other country shall be accorded immediately and unconditionally to
the nationals of all other Members.’ (bilateral)
o Member means member of the WTO
o Very complex clause and a bit controversial
o If the country agrees with another country to give extra generous IE-protection
within their country that goes beyond the minimum rights of TRIPs (trip-plus),
this protection should be available for all the other members. If Chili gives
more IE-protection rights to for example the European Union, Brazil can also
calls upon these rights in Chili. It only goes for individuals of a country.
(EXAM)
This provision let to a renaissance of bilateral agreements
- It is much easier to make a bilateral agreement with other WTO members for TRIPS-
plus legislation and then make them available for everyone with these most-favoured-
nation-treatment.
- You could say that harmonisation is back at the level of bilateral agreements because
of this provision. This makes it very difficult what kind of legislation is counting in a
country.
- In practice this is very difficult, because it depends on the national law if you directly
can beroepen op the additional agreements that are made between countries. And
would a bilateral agreement also counts for other countries without the recipority that
it gives the agreement?
Controversy
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