INTELLECTUAL PROPERTY LAW AND THE IDEA OF PROGRESS

William van Caenegem
Associate Professor
School of Law
Bond University
"Many of the features of intellectual property regimes that are most consistent over time arguably reflect the western belief in, or ideology of, material progress. The idea of progress is typified by belief in the limitless accumulation of new knowledge, and the potential for practical application of that knowledge; belief in the essential contribution of the individual mind to generating valuable new insights; and belief that technological development will allow the ever expanding and ever changing desire for material satisfaction to be met. A progressivist world view thus emphasises individual creativity, the practical use of knowledge, and constant innovation and change. These are all factors that play an important role in defining various forms of intellectual property rights."

THE EUROPEAN COURT OF JUSTICE IN PHILIPS V. REMINGTON - TRADE MARKS AND MARKET FREEDOM

Uma Suthersanen
Senior Lecturer and Senior Fellow,
Queen Mary Intellectual Property Research Institute,
University of London.

"The traditional rationales for denying protection to shapes under trade mark law range from the argument that shapes, per se, are unlikely to act as distinctive signs in the marketplace to the notion that shapes should properly seek protection under other intellectual property rights such as design or patent laws. Nevertheless, the 1989 Directive approximating the laws of the European Union Member States on trade marks made a deliberate policy choice in displacing this tradition by extending trade mark protection to encompass all types of indicators of source, including "designs…, the shape of goods or of their packaging". The European legislators instituted a further policy decision which is enshrined in Art. 3(1)(e). In contrast to other types of signs and marks that are subjected to the general exclusionary clauses which deny protection to non-distinctive, descriptive, customary, deceptive, offensive or immoral marks, shape signs are subjected to three further hurdles which seek to bar signs which consist exclusively of

• the shape which results from the nature of the goods themselves (first indent), or
• the shape of goods which is necessary to obtain a technical result (second indent),
  or
• the shape which gives substantial value to the goods (third indent).

The presence of Art. 3(1)(e) as a bastion of control for shape marks raises several questions. What is the raison d'être of the provision? Did the legislature construct this provision so as to minimise some areas of cumulative protection, or did it envisage the provision acting as a mechanism to prevent an anti-competitive trading environment? What are the tests to be applied in considering whether a shape is excluded under one or all of the three grounds provided within this provision? Is Art. 3(1)(e) to be considered in light of the other exclusionary devices within trade mark law, and in particular, should the interpretation of Art. 3(1)(e) be laced with and influenced by the distinctiveness criterion? In Philips v. Remington, not one, but four different tribunals, attempted to answer some of these questions, and did so in varying manners. Part 1 of the article briefly outlines the chronological history of the case, while part 2 critically examines the Court of Justice's discussion in relation to 3(1)(e). Parts 3 and 4 attempt to align this interpretation with the approach the Court has previously offered in relation to distinctiveness and global assessment, thereby postulating on the possible relationship between distinctiveness and the shape limitations, and on the potential impact of the Philips decision on future cases."

Copyright's bargain - defining our terms

Dr Catherine Seville
Newnham College
Cambridge

Whenever a copyright law is to be made or altered, then the idiots assemble.

"Mark Twain's aphorism should remind us that the drafting of copyright law is not a task to be undertaken lightly; or by the thin-skinned. Copyright regulates the protection of - and access to - a vast range of creative products. Creators, entrepreneurs and users all have interests in its workings, yet in its detail it can be complex and arcane. It is a subject about which people feel passionately, and it is also a matter of great economic significance. Controversy has often surrounded its legislative development, since the first English enactment, the Statute of Anne 1710. Successive legislatures throughout the world have therefore struggled to reconcile the needs of all those whom copyright law is intended to serve. In a global environment which is still exploring the effects of digital technology, the need for a balanced copyright law is ever more pressing. Demands, expectations and stakes are high on all sides. The United States Congress is the most recent body of lawmakers to feel the lash of criticism in this field, as a result of a challenge to its decision to extend copyright term for almost all copyright works. Although the United States Supreme Court has ruled in Eldred v. Ashcroft that Congress' actions were not unconstitutional, the episode should offer Congress little cause for self-congratulation or complacency."

The Doha Declaration - Good News for Public Health?
Dr Peter Rott, Bremen

On 14th November 2001 the 'Declaration on the TRIPS Agreement and Public Health' was adopted by the WTO Ministerial Conference as a reaction to the massive public health crisis in developing countries. It was celebrated as a major breakthrough, allowing developing countries to use patent law mechanisms in order to address their public health problems. The circumstances leading to the Declaration's adoption had been influenced by several key events including the US' failed attempt to pressure the Republic of South Africa into abandoning parallel importation of pharmaceuticals and compulsory licenses. The US had also settled a dispute with Brazil over provisions in Brazilian patent law (without gaining a substantive amendment of the law), and they had signalled to Thailand that they would not oppose compulsory licensing for an AIDS drug anymore. The World Health Organization and a number of NGOs, including Oxfam and Médecins sans Frontières, had voiced their support for an interpretation of the TRIPS Agreement favourable to public health. Lastly, but by no means the least important events, were the anthrax crises in the US and Canada in October 2001. The two countries experienced a shortage of supposedly urgently needed medicines, perhaps for the first time, thereby feeling the necessity for some flexibility in their dealings with patents on pharmaceutical inventions. Overall, the political climate was ideal for the adoption of the Declaration on the TRIPS Agreement and Public Health.
In the light of these circumstances, the content of the Declaration is rather disappointing. This author argues that in fact the Doha Declaration has merely reiterated or confirmed the obvious. This may, from a political perspective, be a success in itself since it may have, finally, stopped the most unreasonable political pressure on developing countries. From a legal perspective, the Declaration may have cleared the way for discussion of issues that really deserve to be considered when evaluating the freedom the TRIPS Agreement gives to national legislators wishing to cater for the public health needs of their people. Thus, the real importance of the Declaration lies in its political mandate for further negotiations.
This article evaluates the Doha Declaration (I), the subsequent process (II), and then further health-related issues are dealt with in greater depth (III and IV). The author concludes that the TRIPS Agreement has in fact always represented a sound compromise between the different interests at stake, with sufficient flexibility to take into account the specific circumstances and needs of states at various stages of societal and technical development.