Do Global IP Rights Exist?
Laws, as we all know by now, are territorial. Many countries share common elements or systems of administration, but at the end of the day the law of the land applies only to the region, country, or territory.
Intellectual Property laws are rare in that as of now, the laws tend to apply across jurisdictions. This is primarily due to the TRIPS agreement, under which more than 160 nations have set minimum standards for protections of all Intellectual Property.
However, while the laws themselves are harmonized, the procedure for obtaining them is specific to each region or country. An investor who intends to protect his invention worldwide must theoretically obtain a patent in each country or by filing an international patent application, a time-consuming and cumbersome venture.
As an answer to this problem, we now have systems which allow for the application of patents across more than one country. International filing rights are governed by the Paris Convention on Industrial Property Protection. Parties to the Paris Convention may also be signatories to the Patent Cooperation Treaty (PCT), a more robust system that we will be covering in the next article.
On March 20, 1883, the Paris Convention was signed in Paris, France. This Convention is overseen by the World Organization for Intellectual Property (WIPO). It revised the treaty in Brussels in 1900, Washington in 1901, Hague in 1925, London in 1934, Lisbon in 1958, and Stockholm i 1967. More than 170 countries sign the Paris Convention.
Trademarks, patents, utility models, service marks, trade names, and industrial designs are all covered by the treaty. Furthermore, it also applies to appellations of origin, an indication of source, and repression of unfair competition. It is one of the main instruments of international law to protect industrial property. Thus, the countries to which this Convention applies shall constitute a union for the protection of industrial property.
The Paris Convention states that each Contracting State must offer the same industrial property protection to its citizens to nationals of the other Contracting State. As a result, residents of non-contracting governments are entitled to national treatment under the Convention.
As a result, this concept forbids the use of two sets of laws to protect industrial property – one for natives and another for foreigners. If a member state does not grant industrial property protection to its residents, the Paris Convention provides that it is not obligated to do so to foreigners.
The Right to Priority
In the case of patents, utility models, marks, and industrial designs, the convention provides for the Right to Priority. The right of priority means that, based on a regular initial application in one of the Contracting States, the applicant may seek protection in any of the other Contracting States within a defined time frame. Patents and utility models have a 12-month life, whereas industrial designs and marks have a 6-month duration. Furthermore, the Paris Convention treats applications made later in the other Contracting States as filed on the same day as the initial application.
Advantages of the Paris Convention
1. Individuals and businesses are granted the fullest trademark, patent, utility model, industrial design, geographical indicator, and trade name rights under the Paris Convention.
2. A patent cannot be denied or terminated because it has been completed or refused in another country. Furthermore, a nation is under no obligation to accept the patent if it refuses to do so in any other way.
3. The convention provides each country with considerable constitutional independence. It also assures that both natives and foreigners are treated fairly.
4. The 12-month convention cycle assists the applicant with obtaining money, doing market research, and developing the concept into a commercial product. The Convention allows accomplished with a single filing, with no loss of rights in other nations.
5. The Convention does not intend to impose national laws or to establish the idea of reciprocity.
Disadvantages of the Paris Convention
1. Occasionally, foreigners purchase patents to gain monopolies rather than developing inventions domestically. It is the crux of the Convention’s conflict.
2. The Paris Convention’s controversy over import monopolies was restricted to Article 5 of the Convention against the Misuse of Patents.
3. The Convention fails to evaluate where the public interest rests entirely. It also does not handle the development of technological gifts outside the market concept in an efficient manner. Furthermore, the Convention does not examine how it might alter the market premise itself.
Author: Usha Saha, Legal Intern at PA Legal.
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