International IP
General Intro Info:
Will do this later
National Treatment (NT) – MCs were required to give nationals of other member countries the same protection that they give their own nationals.
i. Can have provisions that treat foreign nationals better than our own citizens
ii. PC Art. 2(1)
iii. Berne Art. 5(1) – have to give it for current and future laws
1. Exception: for CR does not require reciprocity with term of protection.
2. Murray v BBC (2d Cir. 1996) – Murray argued the US Court’s dismissal of his case for forum non conveins was a violation of NT. Berne Art. 5(2) said that protection and ability for redress must be the same in all MCs. He thinks his choice of forum should be given the equal deference as that given to a US citizen. Court holds that such a principle of equal access must be specified, and it was not here, and the NT cannot be construed this far without clear intent.
iv. TRIPS Art. 3(1) – “treatment no less favorable”
1. EC- Protection of TMs and GIs for Agricultural Foodstuffs (WTO Panel Report Mar. 15, 2005) – Held that EC protection of GI’s violates TRIPS NT provisions (TRIPS 3(1) “no less favorable”) b/c the EC provision treated non-EC nationals differently than EC nationals. I believe the EC provision required to foreign national country to have the same GI protection system in place in order to gain protection in EC.
Most Favored Nation (MFN) – requires that, if a state that is a party to the trade system grants benefits or bounties to other states, then such benefits will be accorded all states within the multilateral system.
i. TRIPS Art. 4. (see exceptions, slide 16, Jan. 16)
1. US Section 211 Omnibus Appropriations Act of 1998 (“Havana Club”) (WTO 2002) – 211 prevented foreign nationals, Cubans, from registering marks that had been confiscated by Castro and the Cuban government, unless the registrant had permission from the original owner of the mark. This provision was found to violate both MFN and NT of TRIPS. Panel also found that countries are required to protect trade names under TRIPS.
a. This case has both a MFN and NT violation (where EC-Protection of TMs and GIs is only for NT). Why? NT is when you treat you own nationals better than everyone else; MFN comes into play when you treat one country worse than others (targeting one country).
ii. Why? Gives incentive to join multilateral agreement. US has minimum standards plus MFN. E.g. CR and Berne, life + 70 issue
iii. Downside: just because you raise your protection standards does not mean others have to afford to you the same increased standard in their country. In these instances, look for exceptions in the treaty
1. Problem with not having exceptions to MFN and NT is that the lack of exceptions can be counterproductive to the free movement of goods.
Territoriality
Sources of International Law
Customary International Law
i. Have to be consistent and states have to believe they are legally bound to follow the customs
ii. To not be bound, you must dissent and indicate your dissent during the formation of the CIL
iii. Enforcement – war (negotiations encouraging them to comply with CIL)
International Agreements
i. Treaties, International Trade Agreements
ii. Int. Agreements can make you bound in subsequent resolutions
General Principles Common to the Major Legal Systems
i. If most countries have similar laws, these laws may apply to other countries that do not have these laws.
ii. Also have to evaluate whether it is a positive (e.g. written law) or a natural (inherent, like a moral law) law. IP law is generally t
TRIPS = Agreement of Trade Related Aspects of Intellectual Property
Other Issues to look for:
Not having jurisdiction over foreign entity
European Institutions
i. EU Commission – administrative branch of the EU (negotiates with other countries, monitors int’l trade relationships). Initiates all legislation in the EC.
ii. EU Council – one member from each government, membership depends on the matter that is being discussed
iii. Court of Justice – the judicial branch. One member from each country; will hear enforcement actions, preliminary reference procedures.
iv. Parliament – law making body; elected as opposed to Commission which is appointed. Under the consultation procedure of the Treaty of Rome the opinion of Parliament must be obtained by the Council before acting on and adopting a legislative proposal of the Commission.
v. EU Regulations – nations are bound by these, federal law (“has general application, is binding in its entirety and is directly applicable to all member states. It does not require national implementing legislation to become effective in member states.” P. 54)
vi. EU Directives – have to be enacted, but you can pick the manner in which to enact it (“A Directive shall be binding in as to the result to be achieved but shall leave to the national authorities the choice of form and methods.”)
Non-Governmental Actors – have been key in the development on int’l IP laws.
