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IP law in a global perspective

IP law in a global perspective. TRIPS standards on geographical indications, integrated circuits, undisclosed information, etc. Overview. Geographical indications Industrial designs Integrated circuits Undisclosed information Anti-competitive practices. Geographical indications.

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IP law in a global perspective

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  1. IP law in a global perspective TRIPS standards on geographical indications, integrated circuits, undisclosed information, etc.

  2. Overview • Geographical indications • Industrial designs • Integrated circuits • Undisclosed information • Anti-competitive practices

  3. Geographical indications • Section 3 of Part II (Article 22-24)

  4. Geographical indications • Pre-TRIPS • (1) Paris Convention (Article 1(2) ’indications of source or appellations of origin’) • (2) Madrid Agreement (1891) • (3) Lisbon Agreement (1958)

  5. Article 22(1) • Definition: ’indications which identify a good as originating… essentially attributable to its geographical origin’ • GI’s are ’place names (in some countries also words associated with a place) used to identify the origin and quality, reputation or other caracteristics of products (’Champagne’, ’Tequila’, ’Roquefort’)’ (see Handbook p. 78-79)

  6. Article 22(2) • Cover all products • Defines standard level of protection

  7. Article 23 • Provides a higher or enhanced level of protection for GI’s for wines and spirits

  8. The two levels of protection • Article 22 focus on preventing misuse of GI’s so as to mislead the public or constitute unfair competition; • Article 23 provides for protection even if misuse would not mislead the public

  9. Article 24 • Exceptions (para. 4 to 9) • When a name has become the common (generic) term (e.g. ’Cheddar’)(para. 6); • When a term has already been registered as a trademark (para. 5)

  10. GI’s under Doha mandate • Creating a multilateral register for wines and spirits (’GI Register’)(Article 23(4)) • Extending the higher (Article 23) level of protection beyond wines and spirits (’GI Extension’)(Article 24(4)) • Calls for a ’procedural decision’ in July 2008 (TN/C/W/52 of 19 July 2008)(Report, TN/C/W/61 (see also TN/IP/W/12)

  11. ’anti-rollback’ • Article 23(4): ’In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement’

  12. Implementation of GI’s • Wide diversity of approaches (in line with the general principle that Members are entiled to choose their own means of implementing their TRIPS obligations (Article 1(1))

  13. Justifications for GI’s • Labour and desert • Firstness • Moral rights of the author and the community • Incentives to innovate, maintain quality and market • Preventing confusion • (see Raustiala & Munzer)

  14. Dispute settlement • EC – Protection of Trademarks and Geographical Indications • Relationship with trademarks (contentious issue)

  15. Readings • Raustiala, Kal & Stephen R. Munzer, ‘The Global Struggle over Geographical Indications’, European Journal of International Law (2007): 337-365. • Evans, G.E. & Michael Blakeney, ‘The Protection of Geographical Indications after Doha: Quo Vadis?’, Journal of International Economic Law (2006): 575-614.

  16. Industrial designs • Section 3 of Part II (Article 25-26)

  17. Article 25 • Conditions for protection • New or original independently created designs

  18. Article 26(1) • Owner has the right to prevent third parties from making, selling, or importing

  19. Article 26(2) • Limited exceptions

  20. Layout designs (topographies) of integrated circuits (’chips’) • Section 6 of Part II (Article 35-38) • Treaty on Intellectual Property in Respect of Integrated Circuits (Washington Convention)

  21. Article 36 • Scope of protection • Extends protection, in relation to the Washington Convention, to the products incorporating the integrated circuit

  22. Protection of undisclosed information • Section 7 of Part II (Article 39) • Undisclosed information is one of the categories of ’intellectual property (Article 1(2)), yet does not give rise to exclusive rights • Based on Article 10bis of the Paris Convention (unfair competition)

  23. Article 39(3) • Protection of regulatory data relating to pharmaceuticals submitted for marketing approval

  24. Control of anti-competitive practices in contractual licenses • Section 8 of Part II (Article 40) • Note that this provision does not refer directly to the category of ’intellectual property’ (Article 1(2))

  25. Article 40 • Article 8(2) recognizees that there may be a need to prevent certain abuses or anticompetitive practices

  26. EU • Transfer of Technology Block Exemption Regulation

  27. ’mobile patent wars’ • How far can a patent holder go? • ’thickets’ (anticommons)

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