Henry Z. Horbaczewski and Iris C. Geik on Trading In Your ... · the last recorded tally on the WTO...
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Legal Academic Risk & Information Analytics Corporate & Professional Government -1 - LexisNexis ® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes 2009 Emerging Issues 3599 Research Solutions May 2009 TOTAL SOLUTIONS LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Click here for more Emerging Issues Analyses related to this Area of Law. Trademarks are generally creatures of national law, based on first use or registration in the applicable national jurisdiction. Under the principle of territoriality, 'trademark rights exist in each country solely according to that country's statutory scheme,' 1 a straightfor- ward construct for a less complicated world than the one in which we live. Like other forms of intellectual property, trademark rights have been affected by the globalization of both the marketplace and the development of commercial law through multilateral and regional agreements dealing not only with trademarks and other intellectual prop- erty specifically, but with the regulation of international trade generally. 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 recon- sider 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 na- tions in the region at the Summit of the Americas. Assurances were made of mutual as- sistance and respect for each other's laws and the treaties which bind the various coun- tries together. The national leaders reaffirmed previous statements about protecting in- tellectual 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”). 2 President Obama in his words and actions at the Summit repeated his cam- paign 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 be- 1. 3 Gilson on Trademarks § 10.02 [hereinafter Gilson] citing Person's Co. v. Christman, 900 F.2d 1565, 14 U.S.P.Q.2d 1477 (Fed. Cir. 1990) . “Conversely, the trademark laws of a foreign country have no extraterritorial effect and cannot be asserted to support claims based on violations of the laws of the United States.” Bernard Indus. Inc. v. Bayer Aktiengesellschaft, 38 U.S.P.Q.2d 1422 (S.D. Fla. 1996) . 2. http://www.fifthsummitoftheamericas.org/default.aspx?id=1107 (Last visited April 20, 2009). 22 “. …We recognise that the pro- tection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations. Therefore, we reiterate our com- mitment to their protection in accordance with the Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organisation (WTO).” Id. See infra Trade Agreements, notes 9-23 and accompanying text.
Transcript of Henry Z. Horbaczewski and Iris C. Geik on Trading In Your ... · the last recorded tally on the WTO...
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LexisNexis® Emerging Issues Analysis
Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes 2009 Emerging Issues 3599
Research Sol utions May 2009
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
Click here for more Emerging Issues Analyses relate d to this Area of Law. Trademarks are generally creatures of national law, based on first use or registration in the applicable national jurisdiction. Under the principle of territoriality, 'trademark rights exist in each country solely according to that country's statutory scheme,'1 a straightfor-ward construct for a less complicated world than the one in which we live. Like other forms of intellectual property, trademark rights have been affected by the globalization of both the marketplace and the development of commercial law through multilateral and regional agreements dealing not only with trademarks and other intellectual prop-erty specifically, but with the regulation of international trade generally. 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 recon-sider 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 na-tions in the region at the Summit of the Americas. Assurances were made of mutual as-sistance and respect for each other's laws and the treaties which bind the various coun-tries together. The national leaders reaffirmed previous statements about protecting in-tellectual 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”).2 President Obama in his words and actions at the Summit repeated his cam-paign 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 be-
1. 3 Gilson on Trademarks § 10.02 [hereinafter Gilson] citing Person's Co. v. Christman, 900 F.2d 1565, 14 U.S.P.Q.2d 1477
(Fed. Cir. 1990) . “Conversely, the trademark laws of a foreign country have no extraterritorial effect and cannot be asserted to support claims based on violations of the laws of the United States.” Bernard Indus. Inc. v. Bayer Aktiengesellschaft, 38 U.S.P.Q.2d 1422 (S.D. Fla. 1996).
2. http://www.fifthsummitoftheamericas.org/default.aspx?id=1107 (Last visited April 20, 2009). 22 “. …We recognise that the pro-
tection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations. Therefore, we reiterate our com-mitment to their protection in accordance with the Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organisation (WTO).” Id. See infra Trade Agreements, notes 9-23 and accompanying text.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
gun. 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.3 These are particularly significant statements and developments for U.S. brand owners. As we look to new trading relationships, our compliance with our old treaty obligations will be tested. Two disputes to which the U.S. is a party involve such treaty obligations; and, U.S. non-compliance with those obligations under is cause for concern about the protection of U.S. intellectual property worldwide. Although internationalization has greatly enhanced the ability of trademark owners to expand the reach of their marks outside their home countries, utopia has not yet been reached. Treaty obligations gen-erally must be implemented into domestic legislation and provide no private right of ac-tion;4 and, disputes regarding compliance with treaty obligations take place between sovereign states, which may or may not champion an injured citizen. When a sovereign state chooses to disregard its treaty obligations redress can be long in coming and dis-appointingly incomplete. But, as the discussion below illustrates, there are indeed con-sequences, and the burdens of sanctions can threaten innocent trademark owners in the non-compliant country. This paper reviews overarching international trade obligations affecting the trademark industry, and discusses two disputes in which the U.S. is involved and the potential im-plications of these cases for trademark owners.5
3. In fact, there is a daily and steady stream of reports of change and advocacy for change outpacing any aspirations of the au-
thors of this pamphlet to provide an up to the moment status report on U.S – Cuba relations. Cf. http://www.nytimes.com/ 2009/04/27/world/americas/27cuba.html?ref=americas; http://www.businessweek.com/magazine/content/09_18/b412900026 1857.htm?campaign_id=rss_topStories; http://www.kansascity.com/437/story/1165311.html; http://energycommerce.house.gov/ Press_111/20090427/testimony_rothkopf.pdf; http://www.brookings.edu/reports/2009/~/media/Files/rc/reports/2009/0413_cuba/ 0413_cuba.pdf(last visited April 28, 2009). Internet Gambling Regulation, Consumer Protection, and Enforcement Act 111th Congress, H.R. 2267 introduced 111th Congress (May 6, 2009) (Frank) (Introduced in House) [hereinafter Internet Gambling Regulation Act of 2009].
4. See Medellin v. Texas, 128 S. Ct. 1346, 170 L. Ed. 2d 190, 2008 U.S. LEXIS 2912 (2008); In re Rath, 402 F. 3d 1207 (Fed.
Cir. 2005); Farr Man & Co. v. United States, 4 C.I.T. 55 (1982). 5. See infra Section 211–The Cuban Trademark Dispute, and Antigua– Gambling on Intellectual Property. Although a discussion
of regional agreements is beyond the scope of this Pamphlet and its emphasis on TRIPS, the intention is not to minimize the importance of the General Inter-American Convention for the Protection of Commercial Property (“IAC” or “Pan American Con-vention”) to the resolution of the issues of Section 211. See infra note 58 and accompanying text for discussion of IAC.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
Trade Agreements. Globalization in commerce and international relations generally has led to a proliferation of trade agreements since World War II.6 Multilateral, regional, and bilateral agreements regulate and promote trade throughout the world. While these treaties have facilitated access to a worldwide market for businesses of all sizes, the stage has also been set for conflicts in interpretation and application, which may inflict unintended consequences caused by trade sanctions or the threat thereof. The General Agreement on Tariffs and Trade (“GATT”) was entered into force in 1947, and it is the preeminent multi-lateral trade Agreement.7 Successive negotiations (called Rounds) led to not only revisions in the main agreement but also the adoption of the General Agreement on Trade Services (“GATS”) and TRIPS into the GATT in 1994 dur-ing the Uruguay Round.8 In the Uruguay Round, the World Trade Organization (“WTO”) was established as the governing organization for implementing and monitoring those Agreements (“WTO Agreements”) and for resolving disputes arising under them. Adhe-sion to the amended GATT treaty is a condition of membership in WTO. As of July 2008, the last recorded tally on the WTO website, there were 153 members of the WTO.9 With respect to trademarks, there are several multinational Agreements, including the Paris Convention for the Protection of Industrial Property (“Paris Convention”), TRIPS, the Madrid Agreement and Protocol, the Trademark Law Treaty, Vienna Agreement, the Nice Agreement on International Classification, and the Singapore Treaty on the Law of Trademarks.10 The Paris Convention is administered by the World Intellectual Property Organization an agency of the United Nations. The normative rules in the Paris Conven-tion are incorporated by reference into the WTO and TRIPS. TRIPS expands those normative rules and augments them with sanctions, creating an international regime which competes for supremacy with national law. Provisions of the Paris Convention are incorporated into the WTO Agreements by reference, and the Paris Convention remains
6. http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact3_e.htm [hereinafter What is the WTO] (last visited April 22, 2009); Raj
Bhala, International Trade Law: Interdisciplinary Theory and Practice (3rd ed, LEXISNEXIS 2007) [hereinafter Bhala] at 3. 7. Bhala, supra note 6 at pp 1661-1683. 8. http://www.wto.org/english/tratop_e/serv_e/serv_e.htm [hereinafter GATS webpage] (last visited April 22, 2009);
http://www.wto.org/english/tratop_e/trips_e/trips_e.htm [hereinafter TRIPS webpage] (last visited April 22, 2009). 9. http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact1_e.htm [hereinafter What is the WTO] (last visited April 22, 2009). 10. http://www.inta.org/index.php?option=com_content&task=view&id=194&Itemid=59&getcontent=1 / [INTA International Treaties]
(last visited April 22, 2009); http://www.wipo.int/treaties/en/ip/singapore.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
in force and is administered by the World Intellectual Property Organization, an agency of the United Nations.11 The Paris Convention is the oldest written and active multilateral trading agreement dealing with trademarks. For the purposes of this paper, we limit our discussion of this agreement to the sections on trademarks. The Paris Convention was entered into in 1883, and subse-quently amended in 1900, 1911, 1925, 1934, 1958, 1967 and 1979. The basic principles of the Paris Convention which affect trademark rights are 2, 6, 6 bis, 6 ter, 6 quarter, 6 quin-qiues, 6 sixies, 6 septies, 7, 7 bis, 9, 10, 10 bis, 10 ter and 11.12 National Treatment (“NT”) is a core principle of the Paris Convention and of the WTO Agreements.13 NT, in its sim-plest formation is the principle that a country affords foreign nationals rights equal to those afforded their own nationals. This principle maintains whatever the disparity in rights pro-tected between the foreign and subject country: a boon for the trademark owner whose own country provides weak protection, but a potential loss for the trademark owner from a country providing greater protections. NT refers to the internal laws of an individual country and their application to nationals of foreign countries. Most Favored Nation (“MFN”) status refers to extraterritorial agreements and the rights and limitations granted and imposed through those agreements.14 MFN means that all nations party to the agreement are treated equally. No one nation is afforded greater or lesser rights than another. There are notable exceptions to this principle, and specific exclusions allowed, but those exceptions are articulated and entered into knowingly by the parties to the Agreement in order to achieve specific goals.15 Despite the intended leveling effect of NT, the disparity in protec-tion and enforcement between countries and the lack of an enforcement measure integral to the Agreement weakened the effectiveness of the Paris Convention.16
11. http://www.wipo.int/treaties/en/ [WIPO Treaties] (last visited April 22, 2009). 12. http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html [hereinafter WIPO/Paris Convention] (last visited April 21, 2009). 13. http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm [hereinafter Principles of the Trading System] (last vis-
ited April, 21, 2009). 14. Id. 15. Id. See infra note 67 and accompanying text. 16. http://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm [hereinafter WTO Settling Disputes] (last visited April 21, 2009); See
also Graeme B. Dimwoodie, William O. Hennessey, Shira Perlmutter eds. International Intellectual Property Law and Policy (2001, LexisNexis) [hereinafter Dimwoodie] at 78, 825.
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TRIPS specifically reaffirmed the NT requirement to emphasize, in the opinion of com-mentators, the importance of that provision.17 MFN was not a part of the Paris Conven-tion, and in fact it developed in response to perceived deficiencies in the principle of na-tional treatment.18 Despite the intended leveling effect of NT, the disparity in protection and enforcement between countries and the lack of an express enforcement measure weakened the effectiveness of the Paris Convention.19 The principle of MFN, thus, as a later development in international law than that of NT evolved out of these perceived weaknesses and actual loopholes of regimes based solely on national treatment.20 Un-der a regime of NT alone, the subject country could enter into agreements providing greater protections to specific trading partners than it does to its own citizens. NT and MFN establish a framework within which trading partners can be assured of equitable status under the laws of member nations and equal treatment in relations with member countries. An intended result is predictability in trading relationships.21 These two basic principles of multinational and regional agreements thus provide reciprocal and equal protections for all citizens of the individual party states and between nations while creat-ing new dynamics in the tensions between national laws, individual self interest, and the common goals of those Agreements. 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 199922 (“Section 211”). The other dispute is over online gambling in the islands of Antigua and Barbuda (“Antigua internet gambling”).23 In both of these disputes, the U.S.
17. WTO Appellate Body Report- United States- Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/R (adopted 2
January 2002) [hereinafter Section 211 DRB Report] (last visited April 21, 2009) at § 240. 18. Dimwoodie, supra note 16 at 79-80. 19. Bhala, supra note 6 at 45. 20. Id. at §297; See generally , Bhala supra note 6 at 321-322, 334-336, Dimwoodie supra note 16 at 79-80. 21. Principles of the Trading System, supra note 13. 22. Omnibus Consolidated and Emergency Supplemental Appropriations Act 1999, 105 P.L. 277; 112 Stat. 2681, 88, Sec. 211; 1998
Enacted H.R. 4238; 105 Enacted H.R. 4328, 105 P.L. 277; 112 Stat. 2681, 88, Sec. 211; 1998 Enacted H.R. 4238; 105 Enacted H.R. 4328 at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ277.105 [hereinaf-ter Section 211] (last visited April 21, 2009); Section 211 DRB Report, supra note 17.
LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
was held to be in non-compliance with WTO Agreements. The scope of retaliation per-mitted 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 (Anti-gua 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 multina-tional corporations alike, while calling into question the U.S. commitment to its interna-tional treaty obligations and to maintaining the Rule of Law in international trade. The WTO Dispute Settlement System. When the agreed upon trade rules are alleged to be violated, or are actually violated, by a trade practice or policy of a WTO member, other WTO members may challenge that via the WTO dispute resolution process. Basi-cally, the WTO dispute settlement system provides a forum for negotiation and a means for resolving those issues. This system works as the treaty language “dispute settle-ment” suggests: it is weighted towards negotiation and amicable settlement rather than judgment and punishment. It is a process, providing an alternative forum to diplomatic confrontation and escalating unilateral retaliation which could lead to trade wars.24 Settlement through negotiated resolution of the issues and conflicts, not judgment and the awarding of sanctions, is the ultimate goal of the system. The emphasis, therefore, is on discussion and negotiations – the consultation process. When issues cannot be resolved on that level, then the recourse is to a Panel, which will evaluate the alleged in-fractions and issue an opinion, which can then be appealed. The WTO website, points to a 2005 statistic as an indication of the efficacy of the consultation process: “[B]y July 2005, only about 130 of the nearly 332 cases had reached the full panel process. Most of the rest have either been notified as settled “out of court” or remain in a prolonged consultation phase — some since 1995.”25 The January 2009 Dispute Settlement Re-port (“DSR”) lists 390 cases with 177 reaching some sort of resolution (“Appellate Body and Panel Reports Adopted, “Mutually Agreed Solutions”) and 38 (“Other Settled or In-
23. WTO Panel Report – United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services
WT/DS285/RW (Adopted March 30, 2007) [hereinafter Antigua Dispute Report] at http://www.wto.org/english/ tratop_e/dispu_e/cases_e/ds285_e.htm (last visited April 21, 2009).
24. WTO Settling Disputes, supra note 16. 25. Id.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
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active Disputes”).26 That disputes can take so long to be resolved may indeed be viewed as a weakness of the system, but the alternative of unilateral retaliation is far more threatening to trade interests, and the framers of the WTO Agreements were not naïve about realpolitik. The safeguards and the timelines of the system maximize the possibility for fair and impartial rulings based on the negotiated principles of the WTO Agreements and as set out in the Dispute Settlement Understanding (“DSU”).27 Dispute Resolution Body (“DRB”, “DSB”) panelists are representatives of member countries and are selected in consultation with the parties to the dispute.28 The WTO and its dispute settlement system is an important actor on the global stage, attested to by the fact that signatories to the Agreements which it oversees consistently turn to it as a forum for the negotiation and resolution of trade conflicts. Although a member can appeal a ruling, delay implementation of changes, and delay the imposition of sanctions (all as discussed below) no member can block a ruling. Just how much in-effectual delay affected trading partners will tolerate until they take unilateral action, however, is a threat which undermines the very security and predictability that is the ba-sis of TRIPS and the dispute resolution system.29 The WTO's time line for dispute settlement runs from Consultation and Mediation to Fi-nal Report in approximately one year. Where the initial decision is appealed, the entire process ideally takes approximately one year and three months. After the final Appeal and the subsequent DSB ruling, the non-prevailing party can either change the offend-ing policy or the prevailing party will be allowed to retaliate in the form of sanctions or the suspension of trade concessions or obligations set in a specific area of trade and based on a specific dollar amount. This last stage is longer and more deliberately en-forced, with years between decision and resolution as the parties attempt to craft a ne-
26. Section 211 DRB Report, supra note 17. 27. WTO Settling Disputes, supra note 16. 28. Id. “Panels are like tribunals. But unlike in a normal tribunal, the panellists are usually chosen in consultation with the countries
in dispute. Only if the two sides cannot agree does the WTO director-general appoint them. Panels consist of three (possibly five) experts from different countries who examine the evidence and decide who is right and who is wrong. The panel's report is passed to the Dispute Settlement Body, which can only reject the report by consensus. Panelists for each case can be chosen from a permanent list of well-qualified candidates, or from elsewhere. They serve in their individual capacities. They cannot receive instructions from any government.” Id.
29. Id.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
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gotiated solution. Members have the opportunity to change the offending laws and be-haviors and to negotiate sanctions.30 For example, in the Section 211 dispute, since the DSB ruling in 2002, the U.S. has re-peatedly given assurances that it is working to pass legislation that would bring the country into compliance. In the Antigua internet gambling dispute, as of this writing through the Internet Gambling Regulation Act of 2009, introduced in the U.S House of Representatives on May 6, 2009, a first attempt is being made to bring U.S. laws into compliance with the 2007 WTO ruling, while the U.S. at the same time has been negoti-ating the nature and amount of the sanctions in order to mitigate the potential harm to intellectual property rights. While the standard is for retaliation to be imposed in the same sector as the non-compliance, this does not always occur. In such instances cross-sector retaliation can then be allowed, placing the sanctions in different sectors or through other WTO Agreements.31 As we shall see in the discussion of the Antigua internet gambling case, a disproportionate trade advantage – that of the U.S. in this in-stance, can readily, under such circumstances, turn into a substantial disadvantage with far reaching and potentially devastating effects.32 Section 211 - The Cuban Trademark Dispute. The passage and implementation of Section 211 grew out of the ongoing litigation between the claimants to the Havana Club rum trademark: the Bacardi Company and the joint venture company formed be-tween CubaExport and Pernod- Ricard.33 The Havana Club mark for rum produced in Cuba belonged to the Arechabala family before the Cuban revolution. When their company was nationalized and they fled Cuba, they did not continue in the rum business. The rum continued to be manufactured in Cuba and the Cuban government registered and used the mark Havana Club world-wide. Cuba maintained its U.S. registration, even though the rum could not be imported
30. Id. 31. See Section 211 DRB Report, supra note 17; Internet Gambling Regulation Act of 2009 supra note 3; and WTO Settling Dis-
putes, supra note 16. 32. See infra, Antigua –Gambling on Intellectual Property notes 61-79 and accompanying text. 33. American Trademarks Threatened: Conferees Call for Repeal of 211 Aimed at Cuba, Id. at 2. http://www.ciponline.org/
cuba/ipr/AmericanTrademarkThreatened.pdf (last visited April 22, 2009).
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
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under the regulations of the embargo against trade with Cuba.34 The farseeing Bacardi Company had already moved much of its operations out of Cuba before the revolution. They continued to manufacture their brand of rum outside Cuba, and it became the dominant brand worldwide.35 But Havana Club was still a significant competitor. When the Cuban government en-tered into a worldwide distribution agreement with the French company Pernod-Ricard, the stage was set for Havana Club, rum still made in Cuba, to become an even greater competitor to Bacardi. In a successful move to defeat the U.S. registration, Bacardi re-portedly purchased the Havana Club mark from the Arechabala family36 and then initi-ated proceedings in the U.S. Patent and Trademark Office (“USPTO”) and in U.S. Courts to block the renewal of the Havana Club mark registered by the Cuban govern-ment and the renewal and transfer of the registration from the Cuban government to a joint Cuban Pernod-Ricard holding company.37 The Arechabala family no longer held rights in the mark in the U.S. (or anywhere else in the world) because of decades of non-use as well as failing to take advantage of U.S. laws which would have allowed them to maintain the mark despite the non-use laws specifically designed to protect owners of property affected by embargoes.38 While the case was before a U.S. court, Congress passed Section 211, a provision tucked into a section of a massive omnibus appropriations bill, removing the obligation of the USPTO to register marks and removing the authority of U.S. Courts to settle dis-putes relating to such marks – for one and only one country – Cuba - and the nationals
34. See e.g. Havana Club Holding, S.A. v. Galleon S.A., 974 F. Supp. 302 (S.D.N.Y. 1997); 62 F. Supp 2d 1085 (S.D.N.Y. 1999);
203 F.3d 116 (2d Cir. 2000); 531U.S. 918 (2000) cert. denied; Empresa Cubana Exportada de Aliementos y Productos Varios /d/b/a CUBAEXPORT v. United States Department of Treasury, Office of Foreign Asset Control, et.al, Civil Action No.06-1692 516 F. Supp. 2d 43; 2007 U.S. Dist. LEXIS 71363. (9.27.07 [hereinafter Havana Club Trademark Cases].
35. Tom Gjelten, Bacardi and the Long Fight for Cuba, the Biography of a Cause (Viking, 2008) [hereinafter Gjelten] at 316-345;
See generally, Comment: Cigars and Rum: Hazardous to the Health of Intellectual Property Law? How the Cohiba Cigar and Havana Club Rum Cases Reveal a Carve-Out for Intellectual Property Disputes with a Cuban Nexus. Michael Riley, 38 U. Mi-ami Inter- Am. L. Rev. 457 (Winter, 2007);
36. Havana Club Trademark Cases, supra note 34 37. Id. 38. Trademark Act of 1946 As Amended 15 U.S.C. A. §§1051-1129 (“The Lanham Act”) at 1121; 8-1600; Gilson, supra note 1 at
1604. See also, Lanham Act §1126(b)”Any person whose country of origin is a party to any convention or treaty relating to trademarks, trade or commercial names…to which the United States is also a party… shall be entitled to the benefits of this section under the conditions expresses herein to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law.” Id.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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of one and only one country - Cuba.39 The actual wording of Section 211 does not refer to Cuba or Cubans specifically, but rather uses the term “designated national” as de-fined in section 515.305 of title 31, Code of Federal Regulations, applied pursuant to Section 515.527 of title 31, Code of Federal Regulations: the Cuban Asset Control Regulations (“CACR”).40 In a hearing before the House of Representatives on other trademark related matters, prior to the passage of Section 211, the International Trademark Association (“INTA”) testified that it would “actively oppose such a measure if it were introduced in Congress” as a revision to the Lanham Act.41 INTA expressed concerns both for what a measure of this sort would allow and what it would prohibit. The USPTO would lose discretion in applying standards for registration and would be placed in the position of making the fact based determination of what constitutes the expropriation of a mark. From a policy perspective, the House was cautioned that the proposed bill could interfere with U.S. foreign policy.
“…U.S. policy may well favor other foreign governments that could be ac-cused by their citizens or dissidents of having "expropriated" trademarks, through the nationalization of industries or otherwise. In such an instance, the application of this proposed legislation could actually run contrary to the interests of U.S. foreign policy.”42
Additionally, the proposed bill was criticized as creating a rigid rule of law in an area where flexible principles had prevailed and where recourse had been and continued to be available for affected parties through the court system.
“For this reason, INTA believes it would be best not to statutorily adopt a presumption as to which party (i.e., an individual or their government)
39. Section 211, supra note 24 and accompanying text; Havana Club Trademark Cases supra note 36. 40. 515 et. seq. of title 31, Code of Federal Regulations the Cuban Asset Control Regulations [Cuban Asset Control Regulations”
or CACR]. 41. Testimony of Frederick Mostert, LL.D., President, International Trademark Association, United States House of Representa-
tives, Committee on the Judiciary, Subcommittee on Courts and Intellectual Property, May 21, 1998 at http://www.inta.org/ index.php?option=com_content&task=view&id=625&Itemid#top6,(INTA Testimony)(last visited October 30, 2007).
42. Id.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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should be entitled to register a disputed trademark in the U.S. Instead, federal law should maintain the flexibility to address these questions in the context of their specific circumstances. In what we believe to be the in-stant case, plaintiffs who hail from Cuba have generally found favorable treatment in U.S. courts, and they already have a good body of precedent to draw on.”43
INTA's objections were circumvented. The Lanham Act was not amended, rather, the usual Congressional Committee process of hearing and debate by members experi-enced in the field of law at issue and who have had the opportunity to hear from all in-terested parties was evaded. Section 211, was dropped into an appropriations bill, with-out any legislative hearings or debate.44 There was no opportunity to focus Congres-sional and public opinion on the issues of national importance. This lack of process not only disregarded U.S. obligations under its major trade treaties, but deprived courts and government agencies of jurisdiction, all to assist a single private party to avoid competi-tion from a single competitor.45 Pernod-Ricard, the co-distributor with CubaExport, is a French company, and France is a member of the WTO, as is the U.S. and Cuba. In June 2000, the European Union (“EU”) at the request of Pernod-Ricard initiated a WTO dispute settlement proceeding on the grounds that Section 211 violates TRIPS. The Panel ruled against the U.S. in August 2001, and the DSB report of 2002 agreed in essential parts with the findings of the Panel. Although the WTO complaint was brought against all of Section 211, on ap-peal, the DSB ruling only held Section 211(a)(2) and (b), set forth below, in violation of NT and MFN. ….Sec. 211. (a)(2) No U.S. court shall recognize, enforce or otherwise validate any as-sertion of rights by a designated national based on common law rights or registration obtained under such section 515.527 of such a confiscated mark, trade name, or com-mercial name.
43. Id. citing Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 29.01[6] (3d ed. 1995) and e.g. Menendez et.
al v. Saks and Company et.al, 179 U.S.P.Q. 513 (2d Cir. 1973). 44. See supra note 33. See also Gjelten supra note 35 at 316-345. 45. Id.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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(b) No U.S. court shall recognize, enforce or otherwise validate any assertion of treaty rights by a designated national or its successor-in-interest under sections 44 (b) or (e) of the Trademark Act of 1946 (15 U.S.C. 1126 (b) or (e)) for a mark, trade name, or com-mercial name that is the same as or substantially similar to a mark, trade name, or commercial name that was used in connection with a business or assets that were con-fiscated unless the original owner of such mark, trade name, or commercial name, or the bona fide successor-in-interest has expressly consented. (c) The Secretary of the Treasury shall promulgate such rules and regulations as are necessary to carry out the provisions of this section. (d) In this section:
(1) The term "designated national" has the meaning given such term in section 515.305 of title 31, Code of Federal Regulations, as in effect on September 9, 1998, and includes a national of any foreign country who is a successor-in-interest to a designated national. (2) The term "confiscated" has the meaning given such term in section 515.336 of title 31, Code of Federal Regulations, as in effect on Septem-ber 9, 1998.46 [emphasis added]
In essence, the DSB held that Sections 211(a)(2) and (b), concerning court recognition or enforcement of trademark rights, were inconsistent with the NT requirements of the TRIPS Agreement and the Paris Convention. The DSB ruled that Section 211 imposes greater restrictions on Cuban nationals than it does on U.S. nationals or nationals from any other of those member states (violating both NT and MFN). Section 211 removes the authority of the U.S. courts to adjudicate trademark issues concerning Cuban marks (also violating both NT and MFN). Under the principle of NT as applied in this case, the U.S. is obligated to extend to owners of U.S. trademarks who are nationals of other WTO Members the same protections and remedies available to U.S. owners of U.S. trademarks. By making a distinction between the abilities of U.S. owners and Cuban owners of U.S. trademarks to protect their trademarks in U.S. courts, Sections 211(a)(2) and (b) violated the national treatment obligation. Sections 211(a)(2) and (b) were found
46. Section 211, supra note 22.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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to violate the U.S. obligation to afford treaty parties MFN status because “only a Cuban national was subject to the measure at issue, whereas a non-Cuban “original owner” was not”.47 The U.S., thus, was held in violation of MFN treatment as it is obligated as a WTO member extend to nationals of all other WTO Members any protections or rights that it extends to nationals of any WTO Member, so that there is no discrimination among WTO Members.48 On March 28, 2002, the U.S. agreed that it would come into compliance with the DSB ruling through legislative action by January 3, 2003.49 The U.S. further agreed to re-spond in a “reasonable time”.50 And indeed, Bills have been introduced into the U.S. Congress over the years since the ruling. No Bill has yet been passed, however, that would fulfill these assurances. The deadline has been extended. New Bills have been introduced, and have lapsed, and new assurances have been made to the WTO. In-stead of extending the deadline yet again, or, alternatively, seeking authority to retaliate, the EU has entered into an agreement with the U.S. regarding rights and procedures in-volving any future EU retaliation request.51 As of this writing, the EU has agreed to not request authorization from the DSB to suspend concessions, and has pledged to notify and consult with the U.S. before making any such request in the future. In turn, the U.S. has agreed not to block any retaliation request by the EU on the grounds that the re-quest is outside the 30-day window provided for in the DSU. The U.S. also retained the right to object to a proposed retaliation request and to refer the matter to arbitration.52 In a Report to the DSB on October 10, 2007, the U.S. stated that “[A] number of legisla-tive proposals relating to Section 211 that would implement the WTO/DSBR recom-mendations and rulings in this dispute have been introduced in the current Congress,
47. Section 211 DRB, supra note 17; See supra notes 4-32 and accompanying text (discussion of WTO, Paris Convention, Na-
tional Treatment (NT) and Most Favored Nation (MFN) status). 48. Section 211DRB Report, supra note 17. 49. Inside U.S. Trade, April 12, 2002, U.S., EU Agree on Deadline for Complying with Section 211 WTO Finding. 50. Section 211 DRB Report, supra note 17. 51. WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases, by Jeanne J. Grimmett (Updated August 14, 2007)
CRS Report RL32014 at 18. 52. Understanding between the European Communities and the United States, United States — Section 211 Omnibus Appropria-
tions Act of 1998, WT/DS176/16 (July 1, 2005); WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases, by Jeanne J. Grimmett (Updated August 14, 2007) CRS Report RL32014 at 18.
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both in the U.S. Senate and the U.S. House of Representatives.” And, the statement which appears in over 200 documents was repeated “[T]he U.S. Administration is work-ing with the U.S. Congress with respect to appropriate statutory measures that would resolve this matter”.53 On February 9, 2009, the U.S. once again submitted a status report, stating that: “[A] legislative proposal relating to Section 211 that would implement the DSB's recommen-dations and rulings in this dispute has been introduced in the current U.S. Congress in the U.S. House of Representatives. The U.S. Administration will work with the U.S. Congress with respect to appropriate statutory measures that would resolve this mat-ter.”54 The U.S. has appeared before the WTO dispute settlement board more than 20 times assuring that it will resolve its non-compliance. U.S. legislators have introduced Bills in varying forms to repeal the offending provisions of Section 211. None of these Bills has gone further than the Committee process. Some of these Bills try to do too much, addressing other contentious areas of U.S. relations with Cuba or by advancing narrow solutions to the objections of WTO, and in so doing creating new areas of possi-ble contention. One Bill, S.1806, The Judicial Powers Restoration Act introduced by Senator Patrick Leahy in 2007, offered a very simple and direct solution. The Judicial Powers Restoration Act provided for the complete repeal of Section 211, the cleanest way to excise the problems created by the enactment of Section 211.55 The unresolved
53. Section 211 Dispute Settlement Report, supra note 17. 54. Id. 55. Judicial Powers Restoration Act of 2007, 110 Congress S. Bill 1806 (July, 2007) (Leahy) (Introduced in Senate) 110th CONGRESS 1st Session S. 1806 To restore to the judiciary the power to decide all trademark and trade name cases
arising under the laws and treaties of the United States by repealing the prohibition on recognition by United States courts of certain rights relating to certain marks, trade names, and commercial names and impediments to registration of such marks, and for other purposes. IN THE SENATE OF THE UNITED STATES July 17, 2007Mr. LEAHY (for himself, Mr. CRAIG, Mr. BINGAMAN, and Mr. ROBERTS) introduced the following bill; which was read twice and referred to the Committee on the Ju-diciary A BILL To restore to the judiciary the power to decide all trademark and trade name cases arising under the laws and treaties of the United States by repealing the prohibition on recognition by United States courts of certain rights relating to cer-tain marks, trade names, and commercial names and impediments to registration of such marks, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Judicial Powers Restoration Act of 2007'. SEC. 2. PURPOSE. The purpose of this Act is to restore to the judiciary the power to decide all trademark and trade name cases arising under the laws and trea-ties of the United States by repealing the prohibition on recognition by United States courts of certain rights relating to certain marks, trade names, and commercial names and impediments to registration of such marks. SEC. 3. REPEAL. (a) In General- Section 211 of the Department of Commerce and Related Agencies Appropriations Act, 1999 (as contained in section 101(b) of division A of Public Law 105-277; 112 Stat. 2681-88) is repealed. (b) Regulations- Not later than 30 days after the date of en-actment of this Act, the Secretary of the Treasury shall issue such regulations as are necessary to carry out the repeal made by
LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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dispute is likely to become increasingly problematic for U.S. business interests, as the Obama Administrations moves toward normalizing trade relations with Cuba.56 As the National Foreign Trade Council (“NFTC”), has repeatedly stated in one forum or another over the years:
“NFTC members are concerned that maintaining this violation of both WTO rules and the Inter-American Convention for Trademarks and Commercial Protection will encourage the Cuban government to discriminate against the thousands of American trademarks registered in Cuba by hundreds of U.S. companies. The Leahy-Craig bill would restore to U.S. courts the full author-ity to decide trademark disputes and deprive Castro of any basis for such discrimination;” … “Unlike halfway measures, the Leahy-Craig bill would clean up the entire problem created by Section 211 almost 10 years ago. By repealing Section 211 in its entirety, the Leahy-Craig bill would bring the United States into compliance with its obligations under the WTO TRIPS Agreement and the more demanding standards of the Inter-American Con-vention for Trademarks and Commercial Protection. It is also important to note that the Leahy-Craig bill would not settle any pending trademark dis-putes. It would merely return them to the courts where they belong.”57
Although outside the scope of this paper and its emphasis on WTO, in addition to the important multilateral agreements, the U.S. and Cuba are party to an important regional
subsection (a), including removing or revoking any prohibition on transactions or payments to which subsection (a)(1) of sec-tion 211 of the Department of Commerce and Related Agencies Appropriations Act, 1999 applied. Id.
56. See supra notes 2-3. 57. Statement by National Foreign Trade Council (NFTC) President William A. Reinsch on the Introduction of S. 1806 to Repeal
Section 211, USA Engage, July 18, 2007, http://www.nftc.org/newsflash (last visited April 28, 2009). USA Engage is self de-scribed as “the leading business organization supporting reform of US policy towards Cuba” and “ a coalition of business and agriculture groups and trade associations working to promote the benefits of U.S. engagement abroad and educate the public on the harmful effects of unilateral U.S. sanctions.” Id.; See also Letter of National Foreign Trade Counsel President William A. Reinsich to then Secretary of State Colin Powell, February 20, 2004 at http://www.nftc.org/default/usa%20engage/ Cuba%20Commission%20letter%20February%202004.pdf (last visited April 28, 2009). “ Integral to any successful open mar-ket economy is protection of intellectual property rights. Despite the over four decade long embargo on trade with Cuba, both countries have reciprocally recognized trademark rights since 1929 as signatories to the General Inter-American Convention for Trademarks and Commercial Protection. The continuation of this essential policy paves the way for future U.S. commercial engagement, and guards against exploitation of intellectual property rights in the interim. Currently, under the Trade Sanctions Reform and Export Enhancement Act of 2000, many American companies are legally exporting branded humanitarian goods to the island for the first time since the adoption of the embargo, making these protections all the more urgent.” Id. The NFTC is “…an organization comprised of over 300 U.S. companies advocating an open, rule based global trading sys-tem.” Id. See generally http://www/ nftc.org.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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agreement the violation of which has been raised in complaints by Cuba in and outside of the ongoing litigation on the issue. Section 211 also violates the U.S.' obligations un-der the Inter-American Convention for Trademarks and Commercial Protection (“IAC” or “Pan American Convention”). The U.S. ratified the IAC in 1931. Among other protec-tions, the IAC affords full recognition of trademarks to treaty partners, based on registra-tion in the originating country and contains a national treatment provision.58 And, in fact, U.S. marks have been given complete protection in Cuba.59 This protection for U.S. companies and brands afforded by all of our IAC trading partners, as well as Cuba, is at risk as long as the U.S. does not comply with the core principles of the Agreement.60 Whichever party ultimately prevails in this dispute is of little consequence to many of the organizations which have called for the repeal of Section 211. What is of great conse-quence is restoring U.S. compliance with its trade treaty obligations, affording U.S. business the advantages and certainty related to the stronger protections in those trea-ties, and eliminating an aberrant and pernicious departure from U.S. principles of due process under which trademark disputes are resolved by the USPTO and by the judici-ary or by administrative agencies subject to judicial review, under statutes and regula-tions of general application.
58. Inter-American Convention for Trade Mark and Commercial Protection, 46 Stat. 2907 (February 27, 1931). (“IAC” or "Pan
American Convention"). Along with the United States and Cuba, the member states are Columbia; Guatemala; Haiti; Honduras; Nicaragua; Panama; Paraguay and Peru. All of these countries, with the exception of Cuba, are full trading partners and allies of the US. The two bases under which foreign applicants may seek US registration are (a) a valid registration or (b) an applica-tion to register in any of the member countries listed. Foreign applicants are granted a right of priority if the US application is filed within 6 months of the date of the first filing of the foreign application. All countries have a ten year renewal term. . In sig-nificant part, the IAC states that (1) “[e]very mark duly registered or legally protected in one of the Contracting States shall be admitted to registration or deposit and legally protected in the other Contracting States, upon compliance with the formal provi-sions of the domestic law of such states”. The IAC gives full recognition to the registration proceedings of member states “transfer of the ownership of a registered or deposited mark . . . shall be recognized in the other Contracting States”. This is predicated on the transfer being lawful under the rules of the state where the transfer occurred, not under the laws of the treaty partner state. Id. See also Anne Gilson LaLonde, Jerome Gilson, Gilson on Trademarks, 8-B at APPENDIX B.
59. Cuba Trader, April 1, 2002 “USA-Engage Joins Cuba Fight.” (On file with Pamphlet authors.). Over 5,000 trademarks belonging to
approximately 500 US companies are currently registered in Cuba. Id. Cited in http://fpc.state.gov/documents/organization/94107.pdf (last visited April 28, 2009).
60. Cf. Fidel Castro, speech at the Univ. of Havana, May 4, 1999 (“I hope no one complains if we start producing Coca-Cola...
Someone might say: Let's try Cuban-Coca-Cola! Or it might be toiletries with brand names or other articles to sell in duty-free shops.” (translated into English), original text at http://www.cuba.cu/gobierno/discursos/1999/esp/f040599e.html. See, also, Ana Stone, Decision on Trademark Rights for a Rum Spurs a Global Dispute, New York Times, June 1, 1999, http://query.nytimes.com/gst/fullpage.html?res=9401E0D71230F932A35755C0A96F958260&sec=&spon=&pagewanted=allhttp://query.nytimes.com/gst/fullpage.html?res=9401E0D71230F932A35755C0A96F958260&sec=&spon=&pagewanted=all; see also BBC News, March 20, 2001 at http://news.bbc.co.uk/1/hi/business/1233256.stm (last visited Oct. 30, 2007).
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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But, what might happen if the EU decides not to forbear any longer, or one of the Latin American neighbors of the U.S. asserts its rights of reciprocity under the IAC – a right, in this instance, to limit the protection of marks held by U.S. nationals? The WTO ruling on the Antigua dispute is illustrative and a warning to U.S. intellectual property owners. The Antigua Dispute – Gambling on Intellectual Prop erty. The Antigua internet gambling dispute is a shorter and more recent story than that of Section 211: the WTO Arbitrator's ruling on U.S. non-compliance was handed down in 2007.61 The threat to in-tellectual property rights is immediate. U.S. non-compliance has already led to an award of sanctions, the amount and absolute nature of which are currently under negotiation. Although the permitted retaliations (sanctions and suspension of compliance with trade obligations) are generally applied in the same sector under GATT, cross –sector retalia-tion in the form of substitute sanctions is permitted when there is no equivalency.62 A violation of one part of the WTO Agreements, in this case GATS has thus led to the im-position of sanctions under TRIPS. This is currently the case in the U.S. dispute with Antigua, and it may soon be the case in developing countries around the world, where U.S. services have a disproportionate valuation than those of the receiving country or where the cessation of trade obligations might be of no consequence to the offending party or could be more detrimental to the complaining country. While the arguments raised and countered in this issue are less the subject of this pa-per on intellectual property, as they lie in the services covered by GATS and in the is-sues of gambling, it is the consequences of U.S. violation of national treatment and the application of substitute sanctions which places U.S. intellectual property at risk and at the center of an issue (online gambling) and an area of the WTO (GATS) well outside their own activities. The Antigua internet gambling dispute brought the U.S. before the WTO under viola-tions of GATS resulting in a ruling unfavorable to the U.S. which involved issue of na-tional treatment, and to a lesser extent, most favored nation status. The dispute be-
61. Antigua Dispute Report, supra note 22; See generally, Shamnad Basheer, Turning TRIPS on its Head: Cross Retaliation at the
WTO (Feb. 14, 2008).http://spicyipindia.blogspot.com/2008/02/turning-trips-on-its-head-cross.htm (last visited April 28, 2009) Note: Drawing Dead: Recognizing Problems With Congress' Attempt To Regulate The Online Gambling Industry And The Negative Re-percussions To International Trade, Eric J. Carlson 32 Suffolk Transnat'l L. Rev. 135 (Winter, 2008) [hereinafter Carlson].
62. What is the WTO supra note 7 at Chapter 3 (last visited April 28, 2009).
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
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tween Antigua and the U.S. began on March 27, 2003, when Antigua and Barbuda (“An-tigua”) filed a Request for Consultation with the U.S. and the DSB, pursuant to GATS.63 The government of Antigua complained that U.S. federal and state laws and regulations prohibiting online gambling placed greater restrictions on the provision of those services outside of the U.S. than were imposed internally in the U.S, a violation of NT.64 Al-though all of the restrictions under the U.S. federal and state laws were initially at issue, the final Appellate Body ruling only related to online betting on horse races. Antigua brought the proceedings because its online gaming industry had become an essential part of its economy. Servicing the U.S. gaming industry had become a large industry in over a decade of activity and cut backs by the imposition of U.S. regulations had led to the decimation of that industry.65 The U.S. regulations at issue had not af-fected the U.S. online gaming industry, as they were designed to have only an extra-territorial effect.66 Goods and services are specifically included in GATT or GATS by member countries, with the option at the time of agreement of excluding specific items. And, those goods and services are then subject to binding tariff negotiations. Excluded goods and services remain outside the Agreements and, therefore, are not subject to NT, MFN or any other universally applied principles. In addition to excluding specific goods and services, a member country can limit trade based on a claim that it is against “public morals”, an exception permitted in the GATS.67 In the Antigua dispute, the U.S. invoked arguments in its defense on both of these grounds. Antigua argued, among other points, that the U.S. ban on cross-border gambling ser-vices violated GATS as a denial of NT, because those cross border services were “like
63. http://docsonline.wto.org/GEN_highLightParent.asp?qu=%28%40meta%5FSymbol+WT%FCDS285%FC1%29&doc=D%3A%
2FDDFDOCUMENTS%2FT%2FS%2FL%2F110%2EDOC%2EHTM&curdoc=3&popTitle=S%2FL%2F110%3Cbr%3EWT%2FDS285%2F1 [hereinafter Antigua Complaint] (last visited April 28, 2009).
64. Id. 65. See Carlson supra note 61. 66. Id. 67. WT/DS285/AB/R, http://docsonline.wto.org/GEN_highLightParent.asp?qu=%28%40meta%5FSymbol+WT%FCDS285%FCAB
%FCR%2A+and+not+RW%2A%29&doc=D%3A%2FDDFDOCUMENTS%2FT%2FWT%2FDS%2F285ABR%2EDOC%2EHTM&curdoc=6&popTitle=WT%2FDS285%2FAB%2FR [hereinafter Antigua Report of the Appellate Board] at ¶¶ 293-327 (last vis-ited April 28, 2009).
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
those” offered domestically in the U.S.68 In November, 2004, the Panel issued its Report finding that the U.S. measures at issue were inconsistent with U.S. obligations under GATS.69 Because of its finding that the measures were a denial of market access non-compliant with GATS, the Panel found the claim of denial of national treatment to be moot.70 On appeal, the DSB reversed the Panel's finding that challenged measures were not “necessary to protect public morals or to maintain public order,” but ruled the measures did not satisfy the requirements of GATS, because the applicable test was two-tiered,71 and it had not been shown that they “are applied to both foreign and do-mestic suppliers of services,72 i.e., NT had not been accorded a member nation. Antigua and the U.S. agreed to submit the matter to arbitration. In August, of 2005, the Arbitrator determined that the U.S. should effect compliance within eleven months and two weeks after the date of the Appellate Board Report73. In July 2006, Antigua moved for the establishment of a second Panel under Article 21.5 of the DSU, claiming that the U.S. had failed to comply. In March 2007, the Panel so held.74 In June 2007, Antigua requested “authorization from the DSB to suspend the application to the U.S. of concessions and other obligations” of Antigua under GATS and TRIPS with respect to copyright, trademarks, industrial designs and protection of undisclosed information as well as communications services.”75 On December 21, 2007, the Arbitra-
68. Antigua Complaint at , ¶¶186-195 69. WT/DS285/R http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm [hereinafter Antigua Arbitration Report] (last
accessed April 28, 2009). 70. Id at ¶6.426. 71. Antigua Report of the Appellate Board supra note 67 at ¶¶ 293-327 . 72. Id. at ¶373 (D)(vi)(a). 73. WT/DS285/13, http://docsonline.wto.org/GEN_highLightParent.asp?qu=%28%40meta%5FSymbol+WT%FCDS285%FC%2A%
29+and+%28%40meta%5Ftitle+Award+of+the+Arbitrator+or+Report+of+the+Arbitrator%29&doc=D%3A%2FDDFDOCUMENTS%2FT%2FWT%2FDS%2F285%2D13%2EDOC%2EHTM&curdoc=3&popTitle=WT%2FDS285%2F13[herinafter Antigua Arbi-tration Report] (last visited April 28, 2009).
74. WT/DS285/RW, http://docsonline.wto.org/GEN_highLightParent.asp?qu=%28%40meta%5FSymbol+WT%FCDS285%FCRW%
2A+and+not+RW2%2A%29&doc=D%3A%2FDDFDOCUMENTS%2FT%2FWT%2FDS%2F285RW%2D00%2EDOC%2EHTM&curdoc=3&popTitle=WT%2FDS285%2FRW [Recourse by Antigua to Article 21.5 of the DSU] (last visited April 28, 2009).
75. WT/DS285/RW, http://docsonline.wto.org/GEN_highLightParent.asp?qu=%28%40meta%5FSymbol+WT%FCDS285%FCRW%
2A+and+not+RW2%2A%29&doc=D%3A%2FDDFDOCUMENTS%2FT%2FWT%2FDS%2F285RW%2D00%2EDOC%2EHTM&curdoc=3&popTitle=WT%2FDS285%2FRW [Recourse by Antigua to Article 22.6 of the DSU] (last visited April 28, 2009).
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
tor upheld Antigua's argument, finding that it was not practicable to confine counter-measures to the sector in which the violation occurred and authorizing Antigua to re-quest the DSB to suspend Antigua's obligations under TRIPS with respect to the subject intellectual property up to an annual level of $21 million a year.76 Intellectual property owners thus are exposed to having their rights disregarded in Antigua because of a dis-pute over the application of U.S. gambling laws. Antigua had sought the imposition of billions of dollars of sanctions through a reduction of tariff obligations equivalent to that amount. Since the Appellate Board Report of April 2005, the U.S. and Antigua have been negotiating: (1) the dollar amount and for (2) a timetable for the application of the sanctions, and most critically for what it portends for in-tellectual property owners – the area of trade in which the sanctions were to be imposed. Antigua calculated its damages on the theory that it could get unrestricted access to all gambling services in the U.S. The arbitrator found that unreasonable, ultimately con-cluding that the relevant market was Internet based betting on horse races, and, after a complex independent economic analysis, the value of that was $21 Million a year.77 The Arbitrator then concluded that due to the small size of the Antiguan economy and the composition of its trade with the U.S., retaliation in the entertainment services sector (gambling, in this instance) would not make Antigua whole, hence it allowed retaliation under TRIPS, by withdrawal of recognition of U.S. intellectual property rights up to the amount of harm assessed.78 It remains to be seen if the, newly introduced Internet Gambling Regulation Act of 2009 , adequately addresses the objections raised, or if it will raise new issues; and, it remains to be seen if it will be passed - a process which can take several years as a Bill moves from legislative committee to legislative commit-tee and from the House of Representatives to the Senate, where there is currently no counterpart Bill.79 During this intervening time span, intellectual property owners may have a reprieve and with it the opportunity to negotiate settlements which bring the U.S in accord with its treaty obligations without collateral risk to intellectual property rights.
76. Antigua Arbitration Report supra note 69 at ¶ 5.7 77. Id. at ¶¶ 4-5.13 78. Id. 79. See Internet Regulation Gambling Act of 2009, supra note 3.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
Section 211 and the Antigua Internet Gambling Dispu te – Harbingers and Motivators. The cross-sector retaliation which Antigua has so far been allowed sends a warning to the U.S. and other nations with strong IP industries: under the DSB ruling Antigua would be al-lowed to suspend its obligations to protect U.S. intellectual property. What is particularly concerning here is that a WTO arbitrator has in fact permitted the violation of other in-ternational conventions, here the Paris Convention and the Berne Convention.80 In es-sence, the Arbitrator's decision sanctions IP piracy, a dangerous result both in this case and for the entire multilateral trading system. Although the dollar amount of this cross-sector retaliation was set far lower than the billions initially proposed by Antigua, the troubling issue remains that a single violation of an intellectual property right can cause incalculable damage to the value of that intellectual property. As we have already seen too often, a DVD of one movie released in even a hard copy in one small market can be sent instantly around the world over the Internet causing immense harm to the rights holder and the rule of law. An already existing rampant problem, worldwide unauthor-ized dissemination of intellectual property, could thus actually be permitted under inter-national law. A precedent is being created whereby a violation of our treaty obligations under GATT, GATS and TRIPS might lead to an application of cross-sector retaliation and substitute sanctions, where no other recourse is practical or equitable. Today's threat to the copyright industry can be tomorrow's problem for trademarks and other ar-eas of intellectual property law. Adherence to the rule of law is essential to the workings of a global society and the global marketplace; and, it is an important goal for a just society. The mutual benefit which the U.S. and its treaty partners derive from these heavily negotiated agreements serves to further that goal. Disputes between trade partners are to be expected; no agreement can fully contemplate all future arrangements and conflicts. But, as the Sec-tion 211 and Antigua internet gambling disputes illustrate, non-compliance poses seri-ous risks for intellectual property worldwide. The U.S. can and must act quickly to re-store its international reputation and its support of the international trade system by complying with the DSB rulings in the Section 211 dispute and must mitigate the poten-
80. WIPO/Paris Convention, surpa note 12; Berne Convention for the Protection of Literary and Artistic Works (1886), completed at
Paris (1896), revised at Berlin (1908); completed at Berne 1914, revised at Rome (1928), at Brussels (1948), at Stockholm (1967), and at Paris (1971), and amended in 1979. The United States became a party to the Berne Convention in 1989. The Berne Con-vention is the preeminent multinational copyright agreement. It addresses the protection of literary and artistic works, such as mov-ies, software and books. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html (last visited April 28, 2009).
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
tial collateral damage flowing from the Antigua gambling dispute. Repeal of Section 211 and a negotiation and restructuring of the legislation at issue in the Antigua dispute will reaffirm our commitment to the principles of NT and MFN and our other treaty obliga-tions. This will strengthen those very principles and treaties so that they provide the in-tended protection and reciprocity to the U.S. and its trading partners and predictability and security to U.S. trademark owners as well as creators and owners of all other forms of intellectual property. Click here for more Emerging Issues Analyses relate d to this Area of Law.
About the Authors. Henry Z. Horbaczewski is Senior Vice President and Gen-eral Counsel of Reed Elsevier Inc., of which LexisNexis is a division, at its head-quarters in New York City. Reed Elsevier Inc. is the principal U.S. subsidiary of Reed Elsevier, an international publisher and provider of information services for science, technology and medicine, education, business and the legal profession. Mr. Horbaczewski practices commercial, intellectual property and corporate transactional law. Prior to joining Reed Elsevier, he was a partner at Coudert Brothers in New York City. Mr. Horbaczewski has written and been a speaker on the subject of intellectual property law before the American Bar Association, the Association of American Pub-lishers, American Business Media and the International Publishers Association. He received his J.D. in 1975 from Harvard University, and his B.A., magna cum laude, in 1972 from Harvard College, where he was Phi Beta Kappa. He is admit-ted to the bars of New York and Massachusetts. Iris C. Geik is an Adjunct Professor, Intellectual Property Concentration, at Suf-folk University Law School and is Outside Counsel, Senior Policy Analyst for In-tellectual Property to Reed Elsevier Inc. The Office of Iris C.Geik specializes in copyright and trademark transactions for entertainment, publishing, general busi-ness, and high tech corporate clients. She was in-house Counsel at WGBH, the public broadcaster, and at Montuno Productions. Prior to her career in law, Ms. Geik worked in the then emerging high tech field, developing products for the handicapped and some of the first online services.
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LexisNexis® Emerging Issues Analysis Henry Z. Horbaczewski and Iris C. Geik on
Trading In Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders – Section 211 and the Antigua Internet Gambling Disputes
T O T A L S O L U T I O N S
LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.
She has written and spoken extensively in the field of intellectual property and was the senior editor and a contributor to an Unhurried View of Copyright: Re-published and With Contributions from Friends (Matthew Bender). She is a graduate of Hunter College (B.A.), Lone Mtn. College/USF (M.A.) and Suffolk University Law School (J.D.). The Authors of this Pamphlet thank Anne Gilson LaLonde and Maria Strong for their review, comments, and corrections – with the caveat that all errors and omissions are ours. We are grateful to Andrew Stein of LexisNexis for his pa-tience, guidance, and assistance in moving this project from concept to comple-tion. Renee Simonton, of Reed Elsevier Properties, is thanked for her continual guidance and support in all things trademark. To the many brand owners and representatives of organizations around the world, we hope that we have given your concerns the forum that you have asked for, and we look forward to a continued open dialogue on the subjects broached herein. Henry Z. Horbaczewski & Iris C. Geik New York and Boston, April 2009
Emerging Issues Analysis is the title of this LexisNexis® publication. All information provided in this publication is provided for educational purposes. For legal advice applicable to the facts of your particular situation, you should obtain the services of a qualified attorney licensed to practice law in your state.
