Intellectual Property Rights as Obstacles to Legitimate Trade?
Christopher Heath · Anselm Kamperman Sanders · Anke Moerland
Sep 2018 · Kluwer Law International B.V.
Ebook
228
Pages
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About this ebook
Intellectual Property Rights as Obstacles to Legitimate Trade helps to understand one of the underlying rationales of the TRIPS Agreement in light of some of the most pertinent IP issues. The WTO/TRIPS Agreement for the first time put IP rights in the context of trade rules, such as when does the exercise of IP rights become an unjustified burden to legitimate trade? Cases have arisen where IP rights are conferred, used, or enforced in a manner that arguably impedes trade, both in domestic and international contexts. This groundbreaking book is the first comprehensive assessment of this controversial area of trade law, shedding important new light on the underlying rationales of the TRIPS Agreement.
With contributions by both practitioners and academics working in a range of countries, this book considers thorny issues in such areas as the following:
– interpretation of ‘obstacles to legitimate trade’ in the context of GATT/ WTO jurisprudence; – separating markets by preventing parallel importation in the context of patents; – geoblocking – territorial separation of digital markets; – using trademarks to prevent competition; – geographical indications – protection of terms that are considered generic in certain domestic markets; – seizure of goods in transit; – ‘evergreening’ patents – attempts to extend the duration of patents; – rights to second-hand digital goods or content; – unjustified threats – towards appropriate standards of liability.Focusing on topical and under-researched areas of IP law, the contributors stimulate a discussion on an overarching concern that is not often addressed – how to assess whether the protection and enforcement of certain IP rights in particular situations should be classified as trade barriers. As an incisive analysis of the desirable balance between the exercise of IP rights and the demands of legitimate trade, this book will be welcomed by practitioners, lawmakers, policy advisers, and academics in both trade law and IP law.
About the author
Christopher Heath, Boards of Appeal, EPO, Munich This chapter looks at patent exhaustion regimes in the context of international trade. Although one might have expected that one of the major concerns of the WTO Agreement would have been to defne the concept of legitimate trade for goods lawfully marketed in one country and subsequently exported to others, no defnition of this core question for international trade could be agreed upon. 'Legitimate trade' thus remains a controversial concept in this area.
Anselm Kamperman Sanders, University of Maastricht Enforcement of intellectual property rights by way of warning letters sent to alleged infringers and their customers may be a cheap but problematic way of asserting rights. After all, such allegations may be unfounded where the IP right that is invoked turns out to be invalid, or not infringed. This chapter looks at threats, in which context they become barriers to legitimate trade, and how legislation should set appropriate standards of liability
Anke Moerland, Maastricht University This topic arises in the context of trade marks and geographical indications. For trade marks, it concerns the registration of foreign descriptive terms with the purpose or result of preventing competition by importation and thereby legitimate trade. For geographical indications, it concerns the protection of terms that are considered generic in certain domestic markets.
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