Last week’s meeting of the
WTO’s Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
saw talks proceed on a host of issues, including counterfeit goods, exceptions
and limitations to copyright, and a long-running dispute over a Cuban rum trademark.
US,
Japan table submissions on counterfeit goods
The topic of counterfeit goods
resurfaced at the 5 June meeting, with several developed countries - including
the EU, Canada, Mexico, South Korea, and Switzerland - arguing that such
products can have serious health and safety implications.
Discussions on the topic were
based on a paper by the US (IP/C/W/570) on securing supply chains against
counterfeit goods and a paper by Japan (IP/C/W/571) on trends in the seizure of
counterfeit goods. Both papers are available online at http://docsonline.wto.org.
Developing countries such as
Brazil, China, and India argued that intellectual property rights infringement
should not be confused with sub-standard products, and that the protection of
supply chains should instead be the responsibility of the private sector.
India, for its part, argued
that a focus on sub-standard goods could have detrimental effects on access to
legitimate generic medicines. The EU has previously seized legal generic drugs
from India - the world’s largest generics producer - in transit through
European ports on the basis of a supposed trademark violation.
India noted that the issue of
IP enforcement is “distinct from issues of quality and safety,” as the TRIPS
Agreement itself does not make a connection between counterfeit goods and
quality and safety of goods. Making that link “marginalises
the role of other agencies that are actually mandated with the responsibility
of ensuring standards, quality and safety,” added the Indian delegate.
In that context, India made
reference to a newly-established mechanism agreed upon in last month’s World
Health Assembly “to protect public health and promote access to affordable,
safe, efficacious and quality medical products, [and] promote … the prevention
and control of substandard/spurious/falsely-labelled/falsified/counterfeit
medical products and associated activities.”
These issues “do not fall
within the purview of the TRIPS Agreement and therefore are beyond the mandate
provided to the TRIPS Council,” India concluded.
Brazil,
US join forces on visually impaired instrument
At the request of the US and
Brazil, a specific agenda item was added to this session of the TRIPS Council
to discuss the status of negotiations on exceptions and limitations to
copyright for the visually impaired at the World Intellectual Property
Organization (WIPO).
Brazil made a reference to a
recent joint
statement by Brazilian President Dilma Rousseff and US President Barack Obama that mentioned both
countries’ commitment “to the conclusion of an effective international
instrument in the WIPO 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.”
In its intervention at last
week’s meeting, Brazil noted that “this is a moment when negotiations have made
a good deal of progress, but further intergovernmental engagement will
nonetheless be needed to complete them successfully,” highlighting the need for
a diplomatic conference for a treaty on the subject.
The US, meanwhile, noted that
while “there is general agreement in [WIPO's Standing Committee on Copyright
and Related Rights, or SCCR] as to the desired objective, there is no agreement
yet on how to get there,” specifically regarding what form such an instrument
might take.
The topic will continue to be
discussed at the next session of the SCCR, slated for 16-25 July.
Rum
trademark causes a stir
Another issue that came to the
forefront during the discussions was a decade-old ruling (DS176) by the WTO
Appellate Body on registering trademarks in the United States involving Cuba.
The complainant in the case was the European Communities - now the EU - with
Japan and Nicaragua as third parties.
The Appellate Body found that
Section 211 of the US Omnibus Appropriations Act of 1998, which prohibits
“those having an interest in trademarks/ trade names related to certain
businesses or assets confiscated by the Cuban Government from
registering/renewing such trademarks/names without the original owner’s
consent,” was inconsistent with WTO rules.
Though not a complainant in the original case, Cuba argues that the US
Patent and Trademark Office and the US Supreme Court have both rejected a
request to renew a Cuban company’s “Havana Club” trademark, which it had held
in the US for over 30 years. The island country claims that Washington has failed to implement the WTO
ruling by instead giving the “Havana Club” trademark to US-based company Bacardi.
The US, for its part, has
consistently held that it is working on implementing the provisions of the
ruling.