International IP Law

Intellectual property law concerns itself with the protection of IP (secret recipes, new inventions, and new designs, etc.) through legal means of enforcement including patents, copyrights, trademarks, and trade secret law. Specific areas that involve intellectual property law include rights of publicity, misappropriation, unfair competition, database protection, licensing, plant variety protection. Most countries maintain their own specific sets of laws and regulations regarding intellectual property protection, but there has also been a great deal of success in the harmonization of sets of international intellectual property standards in the past 20-30 years. These standards include:

Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS")

The World Trade Organization’s (WTO) TRIPS Agreement was negotiated as part of the 1986-94 Uruguay Round and represented the first time that intellectual property rules were introduced into the multilateral trading system. The TRIPS Agreement attempts to harmonize the different intellectual property regulations of member countries through establishing minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In addition, the agreement allows for the WTO’s dispute settlement system to settle trade disputes over intellectual property between member states. The agreement covers five broad issues:

how basic principles of the trading system and other international intellectual property agreements should be applies;
how to give adequate protection to intellectual property rights;
how countries should enforce those rights adequately in their own territories;
how to settle disputes on intellectual property between members of the WTO; and
special transitional arrangements during the period when the new system is being introduced.

Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention is administered by the World Intellectual Property Organization (WIPO) and was concluded in 1886 but then revised several times until finally amended in 1979. The convention outlines three basic principles that outline the minimum protection to be granted upon the contracting parties (164 countries). These three principles as stated by the WIPO are the following:

Works originating in one of the contracting States (that is, works the author of which is a national of such a State or works which were first published in such a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals (principle of “national treatment”).
Such protection must not be conditional upon compliance with any formality (principle of “automatic” protection).
Such protection is independent of the existence of protection in the country of origin of the work (principle of the “independence” of protection). If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.

Also included in the convention are more specific protection requirements including the provision that protection must include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression” (Article 2(1) of the Convention), as well as, the duration of protection is granted generally until the expiration of the 50th year after the author’s death (though there are exceptions to this general rule) and the duration of protection for applied art and photographic works, is a minimum term of 25 years from the creation of such a work.

Hague Agreement Concerning the Deposit of Industrial Designs

The Hague Agreement provides a mechanism for registering a design in contracting countries and is administered by the WIPO. The system gives the owner of an industrial design the possibility to register and protect his design in several countries by simply filing a single application with the International Bureau of WIPO, in one language, with one set of fees in one currency (Swiss Francs). Unless protection is refused by the national office of a specific country, this international registration can apply to the multiple designated countries just as if the registration had been filed directly with each national office.

International Convention for the Protection of New Varieties of Plants

This convention, administered by the International Union for the Protection of New Varieties of Plants (UPOV), outlines protections for newly discovered genera and species of plants that contracting parties are bound to enforce. The convention outlines that nationals of a contracting party, as well as, natural persons resident there shall, insofar as the grant and protection of breeders' rights are concerned and upon filing an application for breeder’s rights, enjoy the same treatment that is given to that party’s own nationals. The breeder's right shall be granted where the variety is new, distinct, uniform, and stable.

Madrid Agreement Concerning the International Registration of Trademark

The Madrid Agreement and Protocol are administered by the WIPO and are open to any state which is party to the Paris Convention for the Protection of Industrial Property. According to the WIPO, the two treaties are parallel and independent and states may adhere to either of them or to both. The system makes it possible to protect a mark in a large number of contracting countries by obtaining a single international registration which applies in each of the designated contracting parties. A mark may only be registered through the international application if it has already been registered with the Trademark Office (referred to as the Office of origin) of the contracting party. An international application must then be presented to the International Bureau of WIPO through the intermediary of the Office of origin.

Paris Convention for the Protection of Industrial Property

The Paris Convention is administered by the WIPO and applies to industrial property including patents, marks, industrial designs, utility models, trade names, geographical indications (indications of source and appellations of origin), and the repression of unfair competition.

The provisions of the convention fall into three main categories: national treatment, right of priority, common rules. Each is discussed in greater detail below:

National Treatment: In regards to the protection of industrial property, each contracting state must grant the same protection to nationals of the other contracting states as it grants to its own nationals.
Right of Priority: The Convention provides for the right of priority in the case of patents, utility models, marks, and industrial designs. This means that after a first application is filed in one of the contracting states, the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other contracting States. These later applications will then have priority over applications which may have been filed during that period of time by other persons for the same invention, utility model, mark or industrial design.
Common Rules: Common rules of the convention include that the granting of a patent in one contracting State does not oblige the other contracting States to grant a patent and a patent cannot be refused in any contracting State on the ground that it has been refused in any other contracting State. Also, once a registration of a mark is obtained a lapse or annulment of the registration of a mark in one contracting state will not affect the validity of registration in other contracting states.

Patent Cooperation Treaty

This treaty was made in 1970, with the latest modification in 2001 and is also administered by the WIPO. The treaty provides a unified procedure for filing patent applications in multiple contracting parties through filing just a single application with the WIPO. This application may then be granted by each contracting party jurisdiction before it will be enforced in that jurisdiction.

Trademark Law Treaty

Much like the Patent Cooperation Treaty, the Trademark Law Treaty is administered by the WIPO and provides for the harmonization of trademark registration procedures through the filing of a single application for a trademark. There procedure can be broken down into three phases: application for registration, changes after registration, and renewal.

Universal Copyright Convention

This convention is administered by UNESCO and provides for the harmonization of the protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture between contracting parties. The convention states that “works of nationals of any Contracting State and works first published in that State shall enjoy in each other Contracting State the same protection as that other State accords to works of its nationals first published in its own territory” as well as that “unpublished works of nationals of each Contracting State shall enjoy in each other Contracting State the same protection as that other State accords to unpublished works of its own nationals”.