FREE DOWNLOAD: Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
Trademark rights have been affected by the globalization of the marketplace and the development of commercial law through multilateral and regional agreements dealing not only with trademarks and other IP specifically, but with the regulation of international trade generally. Because of new trading relationships, compliance with old treaty obligations will be tested, which in turn will jeopardize U.S. intellectual property worldwide. In this Commentary, Henry Horbaczewski and Iris Geik examine international trade obligations affecting the trademark industry and discuss international disputes and the potential implications for trademark owners. They write:
In the interval between the writing of this Pamphlet and printing, two events signal the willingness of the U.S. to engage in a new manner with its trading partners and reconsider its position on old issues. As this Pamphlet was being written in April of 2009, the new U.S. President, Barack Obama, was meeting in Trinidad with leaders of other nations in the region at the Summit of the Americas. Assurances were made of mutual assistance and respect for each other’s laws and the treaties which bind the various countries together. The national leaders reaffirmed previous statements about protecting intellectual property. The Ministerial Statement of the Summit included, as it had in 2008, a reference to intellectual property rights enforcement. This year, a new sentence was added, specifically stating the member countries’ commitment to respecting intellectual property rights under the Accord on Trade Related Aspects of Intellectual Property (“TRIPS”). President Obama in his words and actions at the Summit repeated his campaign commitments to engage the U.S. more fully in a dialogue with its Latin American neighbors. The move to ease restrictions on travel and trade with Cuba has already begun. And, as the Pamphlet was going to press, a Bill, the Internet Gambling Regulation, Consumer Protection, and Enforcement Act (“Internet Gambling Regulation Act of 2009”) was introduced in the U.S. House of Representatives which may resolve a trade dispute with Antigua. These are particularly significant statements and developments for U.S. brand owners.
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The U.S. is currently engaged in two disputes before the WTO involving principles of NT and/or MFN that affect trademark rights. One of these disputes involves U.S. legislation specifically aimed at regulating the Cuba originated trademark for Havana Club rum, Section 211 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act 1999 (“Section 211”). The other dispute is over online gambling in the islands of Antigua and Barbuda (“Antigua internet gambling”). In both of these disputes, the U.S. was held to be in non-compliance with WTO Agreements. The scope of retaliation permitted by the WTO against the U.S. in the Antigua case may prove to be cautionary for trademarks. The ultimate costs to the U.S. have not been computed as sanctions have not yet been assessed in one controversy (Section 211) or imposed in the other (Antigua internet gambling). Both of these disputes, arising out of very different issues, threaten U.S. businesses with sanctions which could have far reaching effects on the valuable intellectual property of individual citizens, small business owners, and multinational corporations alike, while calling into question the U.S. commitment to its international treaty obligations and to maintaining the Rule of Law in international trade.
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