Proposed WIPO Industrial Design Treaty Hung Up On Technical Assistance

It was clear at today’s opening of a World Intellectual Property Organization committee on industrial designs that developing countries were standing firm on their request to include mandatory technical assistance and capacity building in a potential procedural treaty aimed at facilitating international registration of this form of intellectual property right.

The 30th session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs, and Geographical Indications (SCT) is being held from 4-8 November.

At the opening of the meeting, WIPO Director General Francis Gurry underlined the high attendance at the session and took it as a sign of a growing awareness of the importance of industrial designs as a factor in innovation and the simplification of their registration for protection.

Industrial designs are aesthetic aspects of an object, which relates for example to shape, surface, patterns, lines or colour.

During the annual WIPO General Assembly in September, he said, delegates were unable to complete their work and reach a decision on convening a diplomatic conference on a design law treaty, “despite the great progress made in informal consultations.” Intense informal negotiations brought delegations nearer to agreement during the Assembly (IPW, WIPO, 28 September 2013).

The issue of industrial designs, Gurry said, is attracting mounting attention, with applications doubling between 2004 (350,000) and 2011 (775,000 applications). He also remarked that industrial design is the only form of intellectual property where the largest filings do not come from high-income countries but from middle-income countries.

Gurry made a plea to delegations to “consider best practices when you consider provisions.”

“There is always a natural tendency to consider one’s own national laws and best practice and to fall back on to one’s own national law in considering any particular provision,” he said. “But this design law treaty is an opportunity to provide for standards in procedural matters, which will be best practices for the world in the coming years.”

Delegates will work from draft articles [pdf] and draft regulations [pdf], with particular attention to specific articles needing most attention and consensus, and showing a number of options, such as Article 5 (Filing date), Article 13 (Reinstatement of rights after a finding by the office of due care or unintentionality), Article 16 (effects of the non-recording of a license), and Article 27 (Entry into force, effective date of ratifications and accessions).

The most controversial, however, is a proposed Article 21 (Technical assistance and capacity building).

“The draft article is proposed by the Chair and is based on the non-paper on technical assistance and capacity building presented by the Chair to the SCT at its twenty-ninth session, combining elements from the proposals by the African Group, the European Union and its member states and the Republic of Korea.,” according to the draft articles.

The inclusion of an article on technical assistance and capacity building has been at the heart of discussions for several sessions of the SCT, with developing countries insisting that technical assistance and capacity become an article part of the treaty while developed countries in general have supported a resolution.

High-Level Meeting Agreement on a Treaty Conditioned

In their opening statements today, developed countries and developing countries alike said they support the convening of a high-level meeting (diplomatic conference) to agree on a treaty in 2014. A number of developing countries said industrial designs were of high importance.

However, developing countries conditioned this decision to convene a diplomatic conference, which could be taken at the WIPO Extraordinary General Assembly, expected to be held from 10-12 December, to the inclusion of an article on technical assistance and capacity building.

A number of developed countries voiced disappointment that a compromise could not be reached on the convening of a diplomatic conference in 2014 during the September General Assembly. They also asked that a preparatory meeting be held before a potential diplomatic conference in the summer of 2014. Russia has proposed to hold the diplomatic conference in Moscow.

Developing countries reaffirmed the view that a design treaty should take into consideration the different levels of development of WIPO member states, and should allow developing countries to participate efficiently in the system and to benefit from it.

Technical assistance and financing are necessary to implement the treaty for those countries, they said, adding that the inclusion of an article relating to technical assistance and capacity building was of prime importance and would influence the outcome of the discussions.