The TRIPS Regime of Trademarks and DesignsPDF电子书下载

INTRODUCTORY NOTE THE LEGAL STRUCTURE AND THE ECONOMIC NATURE OF INTELLECTUAL PROPERTY 1

1. The legal structure of intellectual property 2

(a) Intellectual property: the branch of law that protects business differentiating intangible assets 2

(b) The intrinsically exclusive nature of intellectual property 13

2. The economic function of intellectual property: to promote the creation and the preservation of business differentiation 14

(a) Intellectual property and the reduction of transaction costs 19

3. Intellectual property: a spontaneous legal tool that has embedded the structural fabric of every organized society since the dawn of civilization 24

4. A special note on the interface between trademarks and designs and competition law 33

5. Industrial property, competition law and repression of unfair competition 39

6. Trademark protection from the national to the international level 39

7. Trademarks yesterday, trademarks tomorrow 46

8. The question of the appropriation of marks and their social construction 49

9. The essence of trademark law: its future is in its past 57

PREAMBLE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS 59

1. The scope, the nature and the function of the trips agreement 60

(a) The scope of the TRIPS Agreement 60

(b) The dynamic dimension of the TRIPS Agreement 63

(c) The nature and the function of the Agreement 65

(Ⅰ) The first objective of the TRIPS Agreement: to reduce distortions and impediments to international trade 68

(Ⅱ) The second objective of the TRIPS Agreement: to protect private property rights 72

2. Intellectual property and trade 74

(a) TRIPS and the GATT 79

(b) The WTO and WIPO 87

PART Ⅰ GENERAL PROVISIONS AND BASIC PRINCIPLES 99

Article 1 nNature and Scope of Obligations 101

1. The TRIPS Agreement: a minimum standards agreement 103

2. Method of implementing the provisions of the TRIPS Agreement 109

3. Implementation 110

4. The scope of TRIPS obligations 116

Article 2 Intellectual Property Conventions 121

1. The objective of the Paris Convention: the articulation of national industrial property systems 121

2. The national treatment principle under the Paris Convention 124

3. The principle of priority 126

4. The principle of independence 127

(a) Independence of trademarks 127

(b) Independence of designs 132

5. Article 5 of the Paris Convention and trade protectionism 134

6. From the Paris Convention to the TRIPS Agreement 135

7. The relationship between the TRIPS Agreement and the Paris Convention 138

Article 3 National Treatment 147

1. The "no less favourable" treatment standard of the TRIPS Agreement as opposed to the "same" treatment standard of the Paris Convention 147

2. The concept of "necessity" in the TRIPS Agreement 152

3. Two GATT Panel Reports on the national treatment principle and Article xx(d) of the GATT 1947 156

4. The principle of national treatment in the European Communities cases 159

5. Scope and reach of the footnote to Article 3 163

Article 4 Most-Favoured-Nation Treatment 167

1. The most-favoured-nation treatment principle 167

2. The MFN principle and the national treatment principle: a rule of thumb 168

3. Scope of the MFN principle 169

4. Exemptions from the MFN principle 171

Article 5 Multilateral Agreements on Acquisition or Maintenance of Protection 177

1. The scope of the exemption under Article 5 177

2. An example of an admissible exemption: discriminatory reduction of fees 180

Article 6 Exhaustion 183

1. The meaning of Article 6 184

2. Exhaustion 186

3. The legal implications of international exhaustion 199

4. Other modalities of exhaustion 217

Article 7 Objectives 221

1. The scope and the meaning of Article 7 221

2. Transfer and dissemination of technology 227

3. The meaning of the expression "balance of rights and obligations" 235

Article 8 Principles 251

1. The conditions of the application of Article 8.1 252

2. Article 8.1 and non-violation complaints 254

3. The TRIPS Agreement and Public Health 256

5. The doha declaration on the trips agreement and public health ?the overlooked role of trademarks 262

PART Ⅱ STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS 271

Section 2: Trademarks 273

Article 15 Protectable Subject Matter 273

1. A brief history of the negotiations 273

2. A functional definition of trademarks 279

3. Signs that can constitute trademarks 283

4. The trips agreement covers collective marks but not certification marks 288

5. Service marks 294

6. The condition of distinctiveness 295

7. Non-visually perceptible marks: sounds, scents and tastes 304

8. Signs that are not inherently capable of distinguishing v. signs that are inherently incapable of distinguishing 316

Article 16 Rights Conferred 343

1. The history and the scope of Article 16.1 343

2. Likelihood of confusion 349

3. Prior rights 354

(a) Objectives and scope of Article 16.2 359

(b) The protection of well-known marks does not depend on actual use 361

(c) Well-known trademarks do not need to be well reputed: notoriety suffices 364

(d) The quantitative approach of Article 16.2 366

(e) Elements that can assist in identifying a well-known mark 369

(f) The scope of Article 16.2 contrasts with that of Article 16.1 370

(g) Registration as a condition for enforcing rights in well-known marks 371

(h) The ultimate criterion: prohibition of parasitic and dishonest practices 371

(i) Article 16.2 does not apply to trademarks that are not eligible for protection under paragraphs 1 and 2 of Article 15 374

Article 17 Exceptions 383

Article 18 Term of Protection 399

Article 19 Requirement of Use 403

1. The history and scope of Article 19.1 403

2. The justification of lack of actual use 406

3. The relationship between Articles 19.1 and 15.3 413

Article 20 Other Requirements 417

1. The history and the scope of Article 20 417

2. The five elements of Article 20 422

3. The relationship between Article 20 and Article 17 428

4. The meaning of the second sentence of Article 20 430

5. The implementation of Article 20-interpretation and practice 431

6. Article 20 and public health 438

Article 21 Licensing and Assignment 443

1. The scope of Article 21 443

2. Quality control 447

3. Compulsory licenses of trademarks 448

4. Compulsory assignments of trademarks 451

5. Solutions alternative to trademark compulsory licensing 452

(a) Prohibitions of use and cancellation of registration 452

(b) Limitations on injunctions 453

6. Article 21 and Article 6quater(l) of the Paris Convention 462

7. The implementation of Article 21 464

Section 3: Geographical Indications 469

Article 22 Protection of Geographical Indications 469

Article 23 Additional Protection for Geographical Indications for Wines and Spirits 483

Article 24 International Negotiations; Exceptions 487

Section 4: Industrial Designs 497

Article 25 Requirements for Protection 497

1. The origins of the international protection of industrial designs 497

2. Novelty and originality 502

3. Designs essentially dictated by technical or functional considerations 508

4. Implementation of Article 25 510

Article 26 Protection 521

1. Exceptions to rights in industrial designs 523

2. Exceptions regarding aircraft spare parts: the convention on international civil aviation 524

3. Compulsory licenses of industrial designs 529

PART Ⅳ ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER PARTES PROCEDURES 537

Article 62 539

PART Ⅴ DISPUTE PREVENTION AND SETTLEMENT 543

Article 64 Dispute Settlement 545

1. Objectives and nature of the dispute settlement mechanism 545

2. The new features of the dispute settlement mechanism 547

3. Conciliatory steps 548

4. The outcome of the dispute settlement mechanism 549

5. Specific issues concerning the withdrawal of concessions in the TRIPS agreement ?the problem of cross-retaliation sanctions 550

6. Non-violation and situation complaints 553

7. The special (and overlooked) interest of LDCs in non-violation complaints 559

8. Trademark-related disputes 561

9. Lessons from the dispute settlement mechanism 563

(a) First lesson: good intentions do not count 563

(b) Second lesson: more (protection) is always better than less 564

(c) Third lesson: international trade has reasons that the Reason does not know 564

PART Ⅵ TRANSITIONAL ARRANGEMENTS 567

Article 65 Transitional Arrangements 569

1. Standstill 569

2. Standstill and LDCs 570

Article 66 Least-Developed Country Members 577

Article 70 Protection of Existing Subject Matter 585

Annex 593

Agreement on Trade-Related Aspects of Intellectual Property Rights 593

Paris Convention for the Protection of Industrial Property 631

Index 651