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5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Discussion On Counterfeits With A Flavour Of Rum At WTO TRIPS Council

    Published on 6 June 2012 @ 4:51 pm

    By , Intellectual Property Watch

    Intellectual property enforcement was discussed at yesterday’s session of the World Trade Organization council on IP-related issues in two different contexts, both involving the United States. Cuba complained about the US failure to comply with a 10-year-old ruling on a Cuban rum brand name, and the US added an agenda item on enforcement against counterfeit goods, both of which created some stir.

    The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council met on 5 June.

    The US had asked for a new agenda item on the exchange of information on securing supply chains against counterfeit goods. The agenda item had to be amended, as proposed by China, according to a source, so that “goods” was replaced by “trademarks” to match footnote 14 of TRIPS Article 51 (Suspension of Release by Customs Authorities) which gives a definition of counterfeit trademark goods.

    New papers on the issues and challenges posed by counterfeit goods were circulated by the United States [pdf] and Japan [pdf].

    The US paper said trademark counterfeiting results in economic losses but also “can pose a serious threat to the health and safety of consumers.” According to the US paper, the aim of the agenda item is to “promote an exchange of information that can help eliminate counterfeits from the global supply chain.”

    The paper from Japan aimed to share Japan’s experiences with IP rights enforcement at the border with other members and “contribute to provide some insights into Members’ border measures against counterfeits and pirated good.”

    Call for No Collusion between IP Rights, Security

    India, Brazil and China made statements, warning against confusion between security issues and IP enforcement issues.

    In its statement [pdf], India said that “the TRIPS Agreement itself makes no connection between ‘counterfeit’ and issues of quality and safety. IP rights including trademark rights are not granted on the basis of quality and safety of a product.”

    The Indian statement also challenges some findings presented by the US on the evaluation of counterfeit economic losses and notes that “the word counterfeiting has been used in a very loose fashion,” in reference to a study mentioned in the US paper. For example, India said that in a specific article cited in the paper, “what the authors mean as counterfeit is a broad category of drugs that are substandard, spurious, falsified, falsely labelled and counterfeit products where there may or may not be an infringement of the IPRs.”

    This issue has come up repeatedly at the World Health Organization, and a new member state mechanism for international collaboration [pdf] was adopted at the World Health Assembly in May (IPW, WHO, 26 May 2012). The mechanism “will also address issues pertaining to the supply chain,” the Indian statement said.

    The Brazilian statement [pdf] said the issue of enforcement is not a permanent agenda item of the TRIPS Council, and only appears at the request of member states. During previous sessions of the Council, the plurilateral Anti-Counterfeiting Trade Agreement (ACTA) was discussed (IPW, WTO/TRIPS, 26 October 2011). ACTA, which is being negotiated outside the WTO, was not on the agenda item of the Council for this session.

    The document circulated by the US “is not confined to counterfeit goods, as defined by the TRIPS agreement and applicable to violations of trademarks,” the Brazilian statement said, adding that the document confused counterfeit goods with substandard ones. “The fact remains that counterfeit and substandard and concepts applicable to different realities that only occasionally overlap,” Brazil said.

    According to a source, other developed countries shared the US and Japan’s concerns about counterfeiting and piracy, and their relation to safety, including Canada, the European Union, Korea, and Switzerland, along with Mexico.

    US Alleged to Flaunt WTO Ruling, Failing to Protect Cuban Trademark

    Cuba, catching the enforcement ball, under the “other business” agenda item claimed the continuous usurpation of a well-know Cuban trademark, even after a 10-year-old ruling by the WTO.

    A WTO dispute settlement ruling [pdf], recommended that Section 211 of the US Omnibus Appropriations Act be brought into conformity with TRIPS and the Paris Convention for the Protection of Industrial Property. Cuba alleged that the US has not taken any action to solve the problem since then.

    At stake is the Cuban “Havana Club” trademark being used by the company Bacardi within the United States. According to Cuba, the Cuban firm CUBAEXPORT obtained a trademark on the commercial name of its rum Havana Club in the US, and renewed it until 2006 at the United States Patent and Trademark Office, at which date it could not renew the trademark registration, as a consequence of the section 211 of the US Omnibus Appropriations Act.

    More recently, Cuba said, on 14 May, the US Supreme Court rejected a request from CUBAEXPORT to have its case reviewed so that its mark, which had been registered in the country for over 30 years, could be registered again, the source said. Cuba added that in contrast, it has respected its obligations in the area of intellectual property, protecting over 5,000 US trademarks and patents.

    According to a source, a number of countries supported Cuba, including Bolivia, China, Ecuador,Venezuela and Viet Nam. Cuba asked for the issue to be put on the agenda for the next meeting, and the source said the US is anticipating the discussion on the issue.

    Brazil and the US Join Voices on Copyright

    Separately, Brazil and the US each presented a briefing on the ongoing discussions at the World Intellectual Property Organization on exceptions and limitations to copyright. This followed an April visit from Brazilian president Dilma Rousseff to the United States and a joint statement by Rousseff and US president Barack Obama. Rousseff was on an official visit on 9 April 2012 to “discuss their countries’ ongoing relationship on a broad range of bilateral, regional, and multilateral issues,” according to the statement.

    The joint statement stated: “The Presidents reaffirmed the commitment of both countries to the conclusion of an effective international instrument in the World Intellectual Property Organization that ensures that copyright is not a barrier to equal access to information, culture, and education for visually impaired persons and persons with print disabilities.”

    Brazil in its TRIPS Council briefing [pdf] called for a potential “Diplomatic Conference to be convened with the aim of concluding the negotiation of an international instrument that will benefit persons with print disabilities.”

    Discussion Idle on Relationship between TRIPS and CBD

    Also at the meeting, positions were reaffirmed on the question of the relationship between TRIPS and the United Nations Convention on Biological Diversity (CBD), and discussions cut short, according to several sources. One of the major issues is a presentation to be made by the Secretariat of the CBD to the TRIPS Council on the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, requested by some developing countries, such as India and China, and resisted by other countries, such as the United States, which is not a member of the CBD.

    Five countries now have ratified the Nagoya Protocol (Gabon, Jordan, Rwanda, the Seychelles, and on 16 May Mexico), according to a recent CBD press release [pdf]. The protocol will enter into force 90 days after the deposit of the fiftieth instrument of ratification. The protocol has 92 signatories. The US had argued in a previous meeting of the TRIPS Council that the instrument was a long way from entering into force, thus a presentation by the CBD Secretariat was uncalled for.

    Another issue in the Council is the potential review of Article 27.3(b) of the TRIPS so that the origin of the genetic material be disclosed in patent applications. Bolivia reiterated its proposal [pdf] (in Spanish) to review the article in an effort to prohibit all forms of patenting of life at the international level.

    The next TRIPS Council is expected take place from 6-7 November.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. WTO TRIPS Council To Consider New Brazil-United States Item On Innovation | Intellectual Property Watch says:

      [...] An Intellectual Property Watch report from the June TRIPS Council meeting is here. [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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