01 Introduction

01 IntroductionWhy IP Has Gone International?

GlobalizationGlobalization = free movement of people, goods, money, services and technology around the world

The causes of globalization

Political and legal reforms

Free market capitalism

Economic development

International trade and MNEs

Technological advances

Global IP LawIP Law plays a key role in facilitating the growth of international trade

Trade in goods

Trade in services

Knowledge and technology transfer

Foreign Direct Investments

Why do many countries seek access to technology?

Technology --> Economic Development

IP Law and Economic Development

Economic development is dependent on technological development

IP Law regulates exports of technology-intensive goods and technology transfer

IP law has a tremendous impact on nation’s economic development

Developed nations create the most tech/industry

Developed nations want strong IP protection

Derive max financial gains from IP and strongest IP protection

Developing nations want weaker IP protection

They need access to advanced technology and knowledge, tools for industrial

development

Making IP Law

Goal = harmonization among countries

01 Introduction file:///C:/Users/lherard/SkyDrive/DePaul/Fall 2013/International IP/Min...

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Transaction costs

Barriers to global trade

How is harmonization achieved?

“Make other to replicate”

“Harmonize-up”

Limits:

Different markets and administrative systems

Domestic courts

The "System" of International IPIntro to the "System"

"System" is in quotes, because there is not one wholly unified solution to int'l IP

The international “system” of IP is composed by two general types of law:

National IP law

Law that governs IP rights in a particular country

International and Multilateral IP Treaties

Laws that establish minimum stds of protection for multiple countries

Usu a body or bodies to enforce laws (e.g. TRIPS enforced by WTO (World Trade

Organization))

The Principle of Territoriality

IP rights are territorial in nature and are created by national law

i.e. IP laws are not created by Intl Treaties; they are created by Nations

International IP treaties establish minimum standards of protection for IP laws

National Laws - Territorial in Scope

IP Laws are territorial in nature

i.e. created by national law, not by international treaty

A nation has the authority to enact valid and binding laws based on:

The Principle of Territoriality

The Principle of Nationality

The Effect Doctrine

International IP Treaties establish minimum standards of protection for IP

EXAMPLE NOTE: To get patent in both US and Canada, you must file for both US and Canadian


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patents

1) Multinational IP Treaties (e.g. TRIPS) only guarantee certain protection of rights

2) They do not GRANT the IP rights

"Principle of Territoriality is part of the sovereignty of nations

Nations have "jurisdiction to prescribe" -- i.e. basic authority to enact laws that are valid &

binding as to the particular object of the laws

Ulrich Huber Theory - Nations have jurisdiciton to prescribe based on 3 principles: (R.3d

Foreign Relations § 402)

a) Territoriality - Nations have jurisdiction to enact laws that are valid & binding w/in its

own territory

b) Nationality - Nations have jurisdiction to enact valid/binding laws wrt to its own

nationals, wherever in the world they may be located

c) Effects - Nations have jurisdiction to enact valid and binding laws wrt conduct outside

its territory that has a substantial effect within its territory

NOTE: Theories of Territoriality & Nationality = well accepted; Effects Doctrine =

controversial

a) The idea is national laws can reach abroad if extraterritorial activities have substantial

effects in the nation

Subafilms v. MGM (9th Cir 1994) (p. 18)

Facts

In 1966, Beatles entered into JV thru Subafilms w/ Hearst Corp to produce movie

Hearst made agmt w/ UA Corp to distribute & finance film; entered into separate

distribution and financing agmts in 1967

In the 1980's, after home video was invented, UA entered into agmts to distribute films.

But UA refused to license the Movie bc wasn't sure if home video rights had been granted

by 1967 agmts

In 1987, MGM/UA (UA's successor) authorized distribution of the Movie in US (overobjections by the producer), and notified Warner Bros that the picture had been cleared forintl distribution

Warner entered into agmts w/ 3rdd parties for distribution of the Picture around the

world

Subafilms/Hearst sued MGM for Copyright Infringement

Appellees arg:

Liability for 'authorizing' acts should extend to extraterritorial acts of infringement

(e.g. when such acts result in adverse effects w/in the united states)


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The presumption against extraterritorial application of US laws may be 'overcome'

when denying such application would result in "adverse effects w/in US"

The presumption against extraterritorial application of US laws = the

Aramco presumption (see p. 21)

Issue

Does the videocassette distribution of the picture, both foreign and domestic, constitute

copyright infringement and/or a breach of the 1967 agreements?

1. Does mere authorization of extraterritorial act constitute of violation of

Copyright Act?

2. Does the US coopyright law extend to extraterritorial acts?

Held

The mere authorization of extraterritorial acts of infringement does not constitute a

copyright infringement -- i.e. no infringement

US Copyright law does not apply extraterritorially

Rule

US Laws Don't Apply To Foreigners

A work of a US National, first generated in USA, gets the same protection in

another country that that country gives to its own nationals (i.e. not the US law, but

the foreign law)

Aramco presumption = no extraterritorial application of US copyright law

The presumption can be overcome if failure to extend the scope of the statute to a

foreign setting will result in adverse domestic effects

NOTE: This is not a REQUIREMENT -- the presumption may still stand,

even if the 'adverse effects' test is met

BUT! International Liability for Infringement of US Copyrights

An act of infringement that takes place entirely outside the US are not actionableunder the Copyright Act

However, an act of infringement within the US is properly alleged, where the illegalauthorization of international exhibitions takes place in the United States

Analysis

CA9 doesn't want to overturn 80 yrs of precedent

The Aramco presumption does not extend in this case (no extraterritorialapplication of US Copyright law)

Precedent = "Infringing actions that take place entirely outside the US are not


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actionable in US fed courts"

To constitute infringement, the infringing activity would need to take place

IN the US, because the Copyright Act governs activities in the United State

In such a case, there could be liability for contributory infringement

Don't disrupt Berne Convention

Preserve Congressional intent --> inappropriate for courts to act in a manner that

might disrupt Congress's efforts to secure a more stable int'l IP regime

Congress wants "effective & harmonious" copyright laws

Note 6, p. 23

Trademark Cases --

Opposite result: US Courts have recognized TM claims under the Lanham Act for

extraterritorial activity w/ substantial effects in the US

Why?

With TM, the goal is to protect the consumers from confusion

Courts are very concerned w/ protecting consumers from confusion

Also

Protect against TM dilution

TM owners can lose their TM

With Copyright, even w/ infringement, © holders still 'own' the

copyright

Courts -- while want to protect authors, they have a higher concern

for protecting consumers

Territoriality and Exhaustion of IP Rights

Note: Exhaustion also appears later

National laws determine how IP Rights Terminate (or "exhaust")

"Exhaustion" means the termination of distributional or importation IP Rights

e.g. "First Sale" -- IP Rights exhaust after the product is first sold to consumers

"Exhaustion" applies to distribution/import rights in material objects, but NOT to general

exclusive IP rights

a) e.g. First-Sale exhaustion bars a © holder from preventing the 2nd sale of an object

(e.g. a person who lawfully buys a book can sell that book used)

b) But First-Sale does not impact © holder's copyright


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National Exhaustion - All authorized domestic first-sales give rise to exhaustion

Regional Exhaustion - All authorized first sales w/in a region (e.g. the whole EU) give rise toexhaustion

International Exhaustion - All authorized first sales ANYWHERE in the world give rise to exhaustion

Note: Different countries have different exhaustion philosophies. WTO did not resolve differences in

exhaustion

Exhaustion comes up again in Chapter 6 (which is Unit 5 in this outline)

c. IP Treaties and TRIPS

Paris Convention

Applies to Patents, trademarks, and industrial property

Requires national treatment (i.e. works originated in a foreign country are given "this country's"treatment

Originally signed in 1883, most recently revised in Stockholm in 1967

Berne Convention for the Protection of Literary and Artistic Works

Applies to Literary and Artistic Works -- Copyrights

Requires national treatment

(originally signed in 1886, most recently revised in Paris in 1971)

Both treaties (Paris & Berne) administered by the WIPO (World Intellectual Property Organization)

Both treaties = superseded in importance by TRIPS (the Agmt on Trade Related Aspects of IP)

TRIPS

Covers: Copyright, Trademarks, Geographical Indications, Industrial Designs, Patents,

Integrated Circuit Designs, and Trade Secrets

TRIPS has dispute settlement under the WTO

TRIPS incorporates major provisions of Paris & Berne, and adds other minimum standards of

its own

Adherence to TRIPS is a basic requirement of WTO entry

The Principle of National TreatmentRule

Member Countries are required to give nationals of other member countries a level of protection at least


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as favorable as that which they give to their own nationals

See e.g. Art 3(1) TRIPS

"Each Member shall accord to national of other Members treatment no less favorable than that itaccords to its own nationals with regard to the protection of intellectual property..."

Phil Collins v. Imtrat Handelsgesellschaft GmbH (European Ct of Justice 1993) (p. 32)

Facts

Def = Imtrat (German)

Ptf = Phil Collins (British)

Ptf gave live performance at concert in the USA

A disc, with a recording of the performance, was made.

In Germany, def distributed the disc, which contained the recording of the concert

Issue

Whether under Article 7 of the EEC Treaty, does German law violate national treatment?

i.e. Did the German law provide the same level of protection to foreigners that it gave to

German nationals?

RULE:

EEC Treaty (ct applied this)

1) "Within the field of application of this Treaty and without prejudice to the special

provisions mentioned therein, any discriminatino on the grounds of nationality shall hereby

be prohibited"

a) NOTE: Art 7 of EEC requires equal national treatment; no worse or better

b) Compare to Art 3(1) TRIPS -- Allows countries to treat nationals of other

countries at least as well as own country. It DOES NOT FORBID "better" treatment

The German Law (ct did not apply this law; ct interpreted EEC wrt this law):

1) Performing artists who are German nationality enjoy protection of the German

Copyright Law

2) They may prohibit distribution of performances reproduced w/o their permission,

irrespective of the place of performance

3) But Foreign Performers cannot avail themselves of the above protection, if theperformance was given outside Germany

HELD: German law violated National Treatment. Under Article 7 of the EEC (Intl treaty), Germany

may not deny Phil Collins his rights

Analysis

Copyright is within the scope of the EEC

1) BECAUSE


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a) Exclusive rts conferred by literary & artistic property affect trade in goods &

services

b) Thus, Those rights (although governed by countries) fall under the scope of

application of Art 7 of the EEC

The German Copyright law, as it was written, allowed German nationals to prevent distributors

from distributing copies of stuff, but did not allow US Nationals (or other foreign nationals) to

prevent distributors from distributing copies

Violates EEC Art 7 because discriminates based on nationality

The Most Favored Nation PrincipleDefinition

If a country gives preferential treatment to one country, it must give the same benefits to all countries

w/in trading group

Most Favored Nation is NOT the same as National Treatment!

MFN = A country must treat all countries within trading group as well as it treats its "most

favorable nation"

NT = A country must afford nationals of other countries protections at least as favorable as its

own nationals

Rationale

Prevents a country from giving preferential treatment

Most Favored Nation Treatment Under TRIPS

TRIPS = 1st intl IP agmt w/ MFN

Paris and Berne conventions did not have MFN

TRIPS Article 4

"Any advantage, favour, privilege or immunity granted by a Member to the nationals of any othercountry shall be accorded immediately and unconditionally to the nationals of all otherMembers

Exceptions to MFN

Countries can depart from MFN for (i.e. don't have to apply MFN to):

Items expressly not subject to nat'l treatment under the Berne and Rome conventions

(TRIPS art 4(b))

Obligations in prior intl IP agmts that took force before the WTO formed, provided that

(TRIPS art 4(d))

1) Such agmts are notified to the Council for Trade-Related Aspects of IP (Councilfor TRIPS) AND

2) Such agmts do not constitute an arbitrary or unjustifiable discrimination against


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nationals of other Member countries

Any rights of performers, producers, and broadcasters not specifically provided under

TRIPS (TRIPS art 4(c))

1) Historically considered less deserving of protection

"Intl agmts" on judicial assistance and law enforcement of a general nature, not

particularly confined to the protection of IP (TRIPS Art 4(a))

United States - Section 211 Omnibus Appropriations Act of 1998 (The "Havana Club" Case) (p. 37)

Facts

A Cuban family company produced "Havana Club" rum

Cuba confiscated company; formed "Cubaexport"

Cubaexport expropriated rights from the family

Cubaexport created "Havana Club" rum

Got US Trademarks in "Havana Club" (in 1974)

Paris priority date (i.e. priority under the Paris Convention) = 1974

However, bcuz trade embargo w/ Cuba, Cuban co's could not sell "Havana Club" rum in US

Cubaexport formed JV w/ Pernod Ricard (French company). However, the Cubaexport/Pernod

Ricard JV still couldn't sell rum in US, even tho the JV had Havana Club trademark in US

Even tho the JV had Havana Club trademark in US

Bacardi began selling "Havana Club" rum in US

In 1996, Bacardi started selling Havana Club rum, made in Bermuda, to US

Bought rights from the Cuban family (the original owners of the mark, before

confiscation by the Cuban govt) in 1997

Bacardi lobbied Congress to enact the Omnibus Consolidated and Emergency Supplemental

Appropriations.

§211 of Omnibus Act prohibits US courts from enforcing trademarks in the US of any

"designated [Cuban] national, or its successor-in-interest," if the trademarks had been confiscated

by the Cuban govt, but had not received the consent of the original, pre-confiscation owner of the

mark

i.e. §211 would favor Bacardi, because Bacardi had the consent of the pre-confiscation owner

of the marks, and the Cuba JV did not

2d Cir held that §211 barred the JV from asserting the TM rights of Havana Club in US court

The EU filed a challenge with the WTO, challenging violations of national treatment,most-favored nation, (and the Paris telle quelle (as-is) provision, which is covered in Unit 4)

Issue

Does §211 of the Omnibus ...Act violate the MFN principle included in Art 4 TRIPS?


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Held

Section 211 of Omnibus Appropriations Act of 1998 violates MFN of TRIPS

a) i.e. it discriminates against the Cuban/French Joint Venture

Rule

MFN Rule (TRIPS Art 4)

w.r.t. IP protection, any advantage, favour, privilege, or immunity granted by a Member

to the national of any other country shall be accorded immediately and unconditionally to

the nationals of all other Members

Analysis

On the face of the statute,

i) the "original owner" who is a Cuban national is subject to Sections 211(a)(2) and (b),

but

ii) The "original owner" who is not a Cuban national (i.e. some other foreign national) is

NOT subject to Sections 211(a)(2) and (b)

On its face, the statute singles out Cuban citizens. If a Cuban national owned a mark, §211

would prohibit the protection of the mark. However, if a non-Cuban national owned the same

mark, §211 would not prohibit the protection of the mark.

Therefore, Sec 211 discriminates against Cuban nationals' IP rights (and only Cuban nationals)

NOTES:

Why was Cubaexport able to get US Trademarks?

Trade Embargo only covered selling goods; did not block Cuban co from obtaining TM

rights (IP rights)

Even though EU prevailed in this case, the US has not changed its law

1) Still, no sanctions from EU

2) Because of EU/US foreign relations

National Treatment vs MFN (p. 40)

1) Similarities

a) Both MFN and Natl Treatment try to 'level the playing field' of IP rights

treatment for member countries

2) Differences

a) MFN is 'active' -- i.e. if you make IP protection better for one member country,

you must make it better for all

b) Natl Treatment is 'passive' -- does not require countries to IMPROVE

treatment; only requires equal treatment (i.e. countries could reduce treatment of

Country A to be equal to its lesser protection of Country B

Choice of Law in Transnational DisputesCompanies need to consider three issues:


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(1) Choice of Forum, (2) Court's Jurisdiction, and (3) Choice of Law

Choice of Forum / Court's Jurisdiction

The key in choosing a forum to sue is: A court must have both Personal Jurisdiction (over the

defendant), AND Subject Matter Jurisdiction (over the claims)

i) i.e. for Transnational IP disputes Ct must have authority to decide IP law cases

US Approach to Jurisdiction

Personal Jurisdiction

A court has jurisdiction if the defendant has certain "minimum contacts with the forum"

Subject Matter Jurisdiction

A court in the US that has jurisdiction to hear IP cases can hear international IP cases

London Film Productions Ltd v. Intercontinental Communications, Inc (SDNY 1984) (p.

729)

Facts

London Films (British co) produces movies in Great Britain

ICI (a US company, incorporated in NY) specializes in the licensing of motion

pictures, produced by others, that it believes are in the public domain

London Films claims that films were still protected by licensing agreements

Alleged infringing activity occurred in Chile and other South American countries

Ptf alleged that defendant and a buying agent for Chilean TV stations entered into

agreements to show movies that were still protected by "copyrights in Great Britain,

as well as Chile and most other countries, but not the United States," by virtue of the

Berne Convention

London Films tried to sue in New York (Southern District New York)

Issue

Does the SDNY have jurisdiction to decide the case?

Held

Court has jurisdiction to hear the case

Rule

"Minimum contacts" + Subject Matter Jurisdiction (IP)

Analysis

Ptf has stated a valid cause of action under the copyright laws of a foreign country

Court has personal jurisdiction over defendant

There is no showing that American defendant may be subject to personal

juris in a foreign forum

Although the Ptf has not alleged violation of any US laws, the court has an interest

in making sure that foreigners comply w/ US law; so the court also has an interest in

making sure US nationals comply with foreign law

The litigation in this case will determine only whether an American corporation


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has violated a foreign copyright (but not whether the copyright exists, or whether it is

valid)

The need to apply foreign law is not in itself the reason to dismiss or transfer the

case. Furthermore, there is no foreign forum where defendant is subject to personal

jurisdiction in this case.

Voda v. Cordis Corp (Fed Cir 2007) (p. 731)

Facts

Ptf/Appellee Voda = resident of Oklahoma CIty, OK; Def/Appellant = Cordis US

Corp

Patents at issue related to guiding catheters for use in IV cardiology

Voda's US Patents stem from a common continuation-in-part application filed in

Oct 1992; The foreign patents issued from a common Patent Cooperation Treaty

applecation

The foreign patents issued the European Patent Office (EPO) and Canada as

recipients

Voda's EPO patent application eventually received EU, British, French, and

German patents. The Cordis' PCT application eventually led to the a Canada patent

Voda sued Cordis in WD Okla for infringment of his US patents. Then he moved

to add claims of infringement of his EU, GBR, CAN, FR, and DE patents.

Issue

Does US court have jurisdiction to hear this case?

Rule

Jurisdiction requires both personal and subject matter jurisdiction

Supplemental jurisdiction may be claimed exercised over foreign law claims

(under some law §1367(a) when they arise under the same "common nucleus of

operative fact" as a claim over which a ct has proper jurisdiction

However, §1367(c) (of the same law) provides: "dist cts may decline to exercise

supplemental jurisdiction if . . . in "exceptional circumstances, there are . . .

compelling reasons for declining jurisdiction" (28 USC 1367(c))

Held

No - Fed Cir held that the dist ct abused its discretion by assuming jurisdiction

Analysis

The US Constitution says that "all treaties made, or which shall be made, under

the authority of the US, shall be the "supreme law of the land"

Paris Convention is an international treaty, entered into under the authority of the

US. Thus, it is the supreme law of the land.

The Paris convention clearly expresses the independence of each country's

sovereign patent systems, and their systems for adjudicating those patents.

i.e. nothing in the Paris Convention allows (or even implies) that one jurisdiction


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may adjudicate the patents of another. Therefore, US courts should not determine

issues of foreign patent validity/infringement

Choice of Law

A consequence of the principle of territoriality is that, in IP suits involving alleged conduct that

occurred in several different countries, a court must decide which law/laws apply

A court must decide which law or laws apply to resolve the dispute

US Approach to Choice of Law

Strict territorial approach

Apply the law of the protecting country to all issues raised for the IP claims recognized

by that country's IP law

"Issue-Specific" approach

Apply different countries' laws based on the issues

Itar-Tass Russian News Agency v. Russian Kurier, Inc (p. 43)

Facts

Ptfs = companies that publish Russian-language newspapers in Russia

Def = NY company that was copying articles out of Russian newspapers,

and publishing them in New York

Issues arose as to copyright infringement -- which country's law applied?

Dist Ct applied Ptf's expert's interpretation of Russian Copyright law

Ct of Appeals sided with Defendant's expert's interpretation of Russian

copyright law

Issue

(1) Which country's law applies to issues of copyright ownership?

(2) Who owned the copyright for the copied articles?

(3) Which country's law applies to issues of infringement?

Held

(1) Law to apply for Copyright issues = Russian Law

RULE: The interests of the parties in property are determined by the

law of the state w/ the most significant relationship to the property and

the parties

Analysis

1. Copyright Ownership is a property law

2. Therefore, consider the law of the state w/ the "most

significant relationship" to the property and the parties

3. Works created by Russian nationals, first published in Russia

(2) Ptf (Itar-Tass) does not own copyrights in articles (this is Def's expert's

opinion)

1. Itar-Tass (the newspaper) could claim copyrights and sue for


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infringement in the copying of any portions of the newspaper that

embody their selection, arrangement, and presentation of articles

(including headlines) (i.e. copying that infringes their ownership interest

in the compilation)

1. Note: Authors could sue for infringement of their rights in

the text of the articles.. But here, Itar-Tass is not the authors -- it's

the newspaper

2. Note: Russian law specifically denies newspapers the benefit of a

work-for-hire doctrine

3. NOTE: The court still said that Itar-Tass is entitled to

1. injunctive relief to prevent unauthorized copying of its

articles and

2. Damages for such copying

(3) Law to apply for Infringement issues = US law

1. RULE: On infringement issues, the governing conflict principle is

usually "lex loci delicti" (i.e. where the shit went down), which generally

applies to torts.

2. Analysis:

1. Infringement took place in US (New York company)

2. Thus, US law applies here

3. Ptf (Itar-Tass) = entitled to injunctive relief to prevent

unauthorized copying of its articles and to damages for such

copying

Analysis

1. Strict territorial approach is too simplistic

2. Choice of law is not necessarily the same for all issues

1. Each issue deserved its own decision re: choice of law

NOTES:

US Courts and Int'l Courts tend to find jurisdiction in international Copyright issues, but not inpatents & trademarks (think London Films vs Voda). Why is this?

1) Usually, Patent/Trademark infringement cases involve the VALIDITY of a

patent/trademark

2) Courts don't want to have to decide on the validity of patents/trademarks issued by

foreign countries

International Legal Institutions


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The World Trade OrganizationBasic Info

The WTO was created in 1994

Uruguay Round => Final Act signed in Marrakesh, Morocco on April 15, 1994

The WTO administer three principal agreements:

GATT

GATS

TRIPS

The WTO also administer the Dispute Settlement Understanding (DSU)

Membership in the WTO requires adherence to ALL treaties of the WTO

Failure to comply with TRIPS => possible trade sanctions

Distinguish WTO v. WIPO

WIPO = specialized agency of UN

WIPO cannot impose sanctions

WIPO administer the major IP treaty except for TRIPS

WIPO handles the Uniform Domain-Name Dispute Resolution System (UDRP)

General Structure of the WTO

Two Governing Bodies:


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Ministerial Conference

MC is Supreme authority of the WTO

Meets at least once every 2 years

Has established committees:

Committee on Trade & Development

Committee on Budget, Finance, and Administration

Committee on Trade and Environment

General Council

Chief decision-making and policy body (between mtgs of the Ministerial Council)

Has two subsidiary bodies:

Dispute Settlement Body

Trade Policy Review Body

Has three Councils (which do most of the day-to-day work of the WTO):

Council for Trade in Goods

Council for Trade in Services

Council for TRIPS

Note: The Councils have the power to create committees (or subsidiary bodies) as

required

WTO Monitoring and Enforcement of TRIPS

The Council for TRIPS --> Intellectual Property

Responsibilities

Each Member nation is to notify the Council for TRIPS of all of its laws/regulations that

implement TRIPS (TRIPS Art 63(2))

Each Member must publish their IP laws (statutes, decisions, regulations), or otherwise

make them available to "enable governments and right holders" understand them (TRIPS

Art 63(1))

Dispute Settlement Body

DSB handles formal complaints lodged by WTO Member states against other WTO Members

allegedly violating treaty obligations

DSB Rules are set forth in the Dispute Settlement Understanding (DSU)

Dispute Settlement Process

DSU encourages complaining Members to seek "consultations" w/ the other Member(s)

involved in the dispute, before filing a formal complaint

Formal Complaint

But, if after 60 days from the request, no settlement results, members can file a formalcomplaint w/ the DSB. Other WTO Members w/ substantial interest in the dispute may join


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as 3rd parties

Within 45 days of the formal complaint filing, WTO forms a Review panel

Panel = 3 Panelists from countries other than those involved in the dispute.

Panelists must have experience in international trade law or policy

Members may oppose the nomination of a panelist only for "compelling reasons"

If dispute is btwn a developing and developed country, the developing country can

request a panelist from a developing country

Panel must "make an objective assessment"

Appeal

Sides can appeal to the Appellate Body

AB = 7 members who appointed by the DSB, based on their representativeness of the

WTO and their expertise.

Each member of the AB serves 4-year terms, for a max of 2 terms

On appeal, only legal issues covered in the panel report, or legal interpretations of the

panel, may be reviewed. Factual issues cannot be revisited.

Each appeal is heard by a 3-member panel of the AB

AB may uphold, modify, or rever the Panel's legal findings/conclusions

The DSB may accept AB's report (within 30 days). DSB may also reject AB's report, but

only by a consensus of the WTO member states.

etc... (see p. 57 -- Implementation, Surveillance)

Transitional Provisions Under TRIPS for "Developing" and "Least Developed" Countries

Art 65 - All countries, including developed countries had 1 yr from eff. date of TRIPS to apply

TRIPS provisions (i.e. deadline = Jan 1, 1996)

Developing Countries / Countries switching from centrally-controlled econ to free-market econ got

extra 4 years; deadline to apply TRIPS = Jan 1, 2000

Art 66 - Least-Developed Countries got until Jan 1, 2006 to apply TRIPS

WTO Panel extended TRIPS deadline (for Least-Developed Countries) to Jan 1, 2013

The World Intellectual Property Organization (WIPO)About WIPO

WIPO = inter-governmental organization, and a specialized agency of the United Nations

Before TRIPS, WIPO was the most impt int'l forum for the development of IP treaties

Since TRIPS, WIPO's importance is greatly eclipsed by the WTO

Purpose of WIPO

WIPO administers the major IP treaties of the world (although this is curbed by TRIPS' incorporation


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of Paris and Berne)

WIPO handles dispute settlement for UDRP (Uniform Domain-Name Dispute Resolution Policy)

(More on this in Unit 4 - TMs)

The European UnionEU = Political and economic union of 27 countries in Europe

Consists of 3 legislative bodies:

The EU Commission

Proposes all legislation

The Council of Ministers

Votes on the legislation proposed by the EU Commission

Parliament

Consults w/ the Council of Ministers.

Legislation

Regulations

Regulations = EU federal law

Applies directly in all member states, and supersedes any conflicting national law

Directive

Does not apply directly in member states

Each state must enact domestic legislation to implement EU directives

Courts

European Court of Justice has the ultimate authority to interpret EU law

"TRIPS Plus" Agreements: ACTA, and Bilateral and PlurilateralAgreements

see pp. 74 - 76


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Documents

01 Introduction