|Free Trade Area of the Americas - FTAA|
Original: English –
FTAA - COMMITTEE
OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
INTA COMMENTS ON CHAPTER ON INTELLECTUAL PROPERTY RIGHTS
The Draft Agreement has the intention to comply with prior IP agreements, as the Trade-related Aspects of Intellectual Property Agreement (TRIPS) and the Trademark Law Treaty (TLT). However, references to the Lisbon Agreement should be removed as TRIPS superseded it. INTA applauds the Negotiating Group for their support of the Madrid Protocol.
Protectible Subject Matter:
INTA urges that sound marks, three-dimensional marks and retail services are adopted as protected signs and services, respectively, as foreseen in TRIPS.
Absolute and relative prohibitions:
Plant varieties - The proposed prohibition relating to the registration of certain plant varieties as trademarks should be deleted, since it is unnecessary and unclear.
Indigenous signs - INTA urges the deletion of provisions regarding indigenous signs that grant exclusive rights without an analysis on likelihood of confusion. Furthermore, considering that many signs are combinations of common geometric shapes and there are currently over 550 Federally recognized US tribes, granting exclusive protection risks denying availability of shapes in instances where no likelihood of confusion exists.
Exhaustion of rights (Parallel Imports):
In order to ensure consumer confidence in the consistent level of quality of trademarked products and services, INTA urges the Negotiating Group to remove provisions that would provide for either regional or international exhaustion. Such provisions would deny a trademark owner’s right to control the quality and image associated with its goods in each.
INTA proposes adoption of the provisions of the WIPO Joint Resolution of September 1999. The Draft’s provisions include a limited definition of a “well known” mark. Insufficiencies include: the unwarranted requirement for registration; failure consider dilution as damage; and overly limited remedies.
Term of protection:
INTA is in agreement with the initial trademark term of ten years and the renewal term of ten years.
Requirements of use:
INTA recommends the provisions recommended in its “Model Law Guidelines” of May 1998, which contains provisions accepted by a consensus of the membership regarding cancellation of a registration for lack of use.
Exception to use:
Considering subparagraph (b) limits the right to enforce trademark rights with respect to parallel imports, it should be deleted.
Licensing and assignment:
The recording requirements create an undue burden on trademark owners and unjustified impediments to the enforcement of trademark rights, and, therefore unnecessarily impede trade.
The proposed provisions conflict with trademark laws of certain proposed members (U.S. and Canada) in regard to the “first to file” rule.
Domain names on the Internet:
INTA is in agreement with the participation of contracting parties and national governments in the Government Advisory Commitee (GAC) of the Internet Corporation of Assigned Names and Numbers (ICANN).
INTA also endorses the requirement of participation of country-code top-level domains (ccTLDs) of contracting parties in the ICANN Uniform Dispute Resolution Procedures (UDRP) for resolving alleged cybersqatting.
INTA proposes that contracting parties provide for an accurate, publicly accessible WHOIS database.
INTA requests the clarification of the cancellation and transfer of the domain names provision.
GEOGRAPHICAL INDICATIONS-APPELLATIONS OF ORIGIN
INTA encourages adherence to the provisions of TRIPS.
INTA suggests the adoption of the anti-counterfeiting and anti-piracy measures proposed in TRIPS Part III; the WIPO Model Anti-Counterfeiting and Anti-Piracy Laws; and the World Customs Organization (WCO) Model Legislation.
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