Journal of World Intellectual Property最新文献

The second year of the COVID-19 pandemic has not shown any sign of decline. Considering that COVID-19 is a new virus variant, and vaccines are pharmaceutical and life science products that are full of inventions and innovations, the issue of vaccine patents is in the spotlight and attention of the world. Previously, Indonesia had taken the Government's Patent Implementation mechanism for antiviral and antiretroviral drugs used for HIV and Hepatitis B in an effort to reduce the price of these drugs. In light of the global impact of the COVID-19 Pandemic that causes a large number of victims, the idea arose to apply a patent waiver to the COVID-19 vaccine. Second, to formulate what efforts the Government of Indonesia can take in responding to the patent waiver. Results of this study indicate that a patent waiver will actually have an impact on the exclusive rights attached to the inventor, but efforts to implement patents by the Government while respecting patent holders are considered appropriate in emergency conditions such as the COVID-19 pandemic situation, to increase the supply of vaccines globally and provide convenience for the public to access the COVID-19 vaccine. Second, in an effort to address the COVID-19 vaccine patent waiver, Indonesia can apply the Government's Patent Implementation for the COVID-19 vaccine to reduce the price of the vaccine to fulfill public health rights in the midst of the pandemic, while still respecting the vaccine inventors.

To strike the post-grant balance of interests between copyright owners and users, this paper defines three normative types of implied licenses. The typological framework recognizes a hierarchical degree of deference to copyright owners' intent, such that its function varies from the high degree of deference in the opt-in system to the intermediate degree of the opt-out system, down to the lowest degree of the nonoption system. The three systems in this framework, working on a sliding scale, reflect and further the flexibility of the doctrine. Moreover, given the complexity of weighing the conflicting interests of copyright owners and users, a prescription for elements to be considered, taken from existing cases and the function of the doctrine, is required to slide the application of the doctrine from one type to another. In this way, a greater degree of certainty of the doctrine is improved and the predictability of judicial decisions is increased.

A paradigm shift towards IPR policy and technology commercialization have been observed in India, during the post-World Trade Organization (WTO) regime. Protecting innovative agricultural technologies through IPR and technology commercialization are of utmost significance to enhance country's public research enterprise, promote economic development and national competitiveness. This has impacted the innovations in a positive direction in these areas. The present article reviews in-depth process of IPR management and technology commercialization attempted by the Indian Council of Agricultural Research (ICAR)—Vivekananda Parvatiya Krishi Anusandhan Sansthan (VPKAS). Earlier, ICAR established a three-tier model for technology management and transfer namely, central, zonal, and institute level committees/units. Of late, Agrinnovate India Limited (AgIn), which works to meet with world-wide commercial success of the invented technologies, have come in to facilitate the commercialization process and thus a renewed three-tier model is in place now. The paper also presents a case study of ICAR-VPKAS, highlighting the unique experiences, lessons learnt and evolution in managing IP and process of technology commercialization. This is purposely drawn as an early example in managing IP and commercializing the argicultural technologies, despite the challenges faced by the institute due to its remoteness, difficult accessibility and hilly location. These together, may catalyze similar efforts throughout the developing countries to promote innovation and global competitiveness.

The creation and implementation of competitive digital technologies is an important task for every state striving for global political and economic leadership. Today, the issue of creating and implementing components of the digital industry (Industry 4.0), the use of which can significantly affect the development of industrial production of the state, is especially relevant. At the same time, solving this problem is extremely difficult due to the need to overcome some barriers that hinder the development of the digital industry (Industry 4.0). Among these, legal barriers pose a major problem. The purpose of the article was to identify the key legal barriers to the implementation of the components of the digital industry (Industry 4.0) and choose the best ways to overcome them. The methods that formed the basis of the study were a comparative legal analysis of the current domestic and foreign legislation, as well as scientific literature on the digital industry, its components, barriers that hinder their development and tools to overcome them, as well as a systemic method and method of legal modeling. As a result of the study, the authors identified the key legal barriers to creating and implementing components of the digital industry (Industry 4.0). To overcome them, the authors propose to use legal instruments, the complex application of which will contribute to the improvement of the current legislation in the field of digital technologies creation, the attraction of investments in their creation and implementation, as well as ensuring the digital sovereignty of the country.

This study investigates the potential benefits of geographical indications (GIs) for the sustainable development of handicraft communities in developing countries. The current research also explored the challenges faced by developing countries regarding GI legislation and suggested relevant policies to address the identified problems for the sustainable development of the handicraft communities. This study is exploratory and based on a thorough review of relevant theoretical and empirical literature, including policy documents. Secondary data regarding Handicraft GIs worldwide were utilized to provide empirical evidence of GI legislation's importance for developing countries. This study argues that protected GIs potential benefits include not only social and economic but also cultural and environmental, which previous studies have not explored deeply. Arguably, in the case of handicrafts, besides economic benefits (such as value addition, price premium, quality assurance, increase in sales, and profit), GIs also help in the development of local communities through generating employment opportunities, improving living condition, poverty alleviation, and social cohesion (social benefits). GIs also play a crucial role in promoting, elevating, reinforcing, and preserving cultural traditions (cultural benefit). Finally, GIs also help in biodiversity and sustainable use of raw materials (environmental benefit). This study also underlined key challenges regarding GI legislation in developing countries.

In the European Union Trademark law (EUTM), clear and precise subject-matter of a trade mark is a prerequisite of proper filing and determines the conditions and scope of protection. Registration rules have evolved together with the meaning of this standard. The paper examines the legal status of position marks, which lacked their own registration specifics within initial EUTM, and thus were usually filed through other categories (figurative, colour, three-dimensional), and contrasts this practice with the registration scheme of the new law. The analysis looks into the effects of Court of Justice's guidance when retroactively applied to trade marks registered upon earlier law. The exemplary case of a blade of grass inside a bottle is used to map the meaning of ‘unaligned’ description and/or indication vis-à-vis the prime relevance of (graphic) representation. The final part explores how identifying the subject-matter of a position mark has an impact on assessing its distinctiveness, engaging within functionality objections and proving genuine use. The paper advocates for refraining from applying a fixed understanding of the requirement of clear and precise subject-matter, especially with regard to old registrations, and, a fortiori, to flexible subject-matter, such as position signs.

Article 23.4 TRIPs instructs World Trade Organisation members to negotiate a multilateral system of notification and registration of geographical indications (GIs) for wines (extended to spirits at the 1996 Singapore Ministerial Conference) to facilitate the protection of GIs. Much has been written about moral rights, law and economics and cultural protection as less rational justifications for the enhanced protection of wines and spirits GIs. This article explores the rational justifications of enhanced protection of wines and spirits GIs against dilution through the lens of universality, and distinctiveness. Subsequently, this article provides an updated analysis of four proposals for a multilateral register for wines and spirits GIs that have not led to a consensus between the Old and New World countries. Therefore, this article is proposing the construction of a multilateral register by combining the best elements of these proposals, measured along the yardstick of universality and distinctiveness and maps the contours of the bargaining space between the Old and New World countries in regard to the determination of genericism, to spark new interest in breaking the stalemate between the Old and New World countries in regard to fulfilling the mandate of Article 23.4 TRIPs.

Geographical indications (GIs) are distinctive signs used on goods or services, the reputation or characteristic of which arises from their origin. Examples are Champagne, Darjeeling, Canastra, among others. They were created to prevent fraud, but they can serve and have been used by scholars, governments, and entities as an instrument for development. To discover the components of the development resulting from registration of GI, we conducted an integrative literature review regarding GIs and development. We found 122 articles (ScienceDirect: 38 and ISI Web of Science: 84) which was reduced to 81 following verification by content analysis. The elements constituting this development were understood as consequence of actions and conditions prior and subsequent to recognition of GI. The proposed new synthesis linked these issues with both positive and negative effects. Based on these relationships, it is evident that development is not an immediate consequence of registration, it depends on a series of factors (of which public support, producer engagement, and consumer recognition stand out) and to what extent they are present.

Trademark Laws should be understood in light of public interest in protecting the public from falling into the trap of confusion, and not as rights that are excluded from scrutiny. It aims to protect trade symbols to avoid the likelihood of confusion among consumers. It is to be seen whether the broad protection is giving any benefit to consumers or it is serving badly the public interest by shielding firms from healthy competition. Broad legal protection to the trade symbols can sometimes disserve the competition and harms the consumer and larger public as well. The paper questions and analyses the objectives of Trademark Law. Are these trademarks untouchable? Can perpetual monopoly be ever touched on public interest grounds? Can public interest grounds supersede economic interests of individual trademark owners? It can be believed that trademarks can definitely be touched and can be objected on the grounds based on public interests. Also, it must be remembered that intellectual property is not a positive right to use the mark but a negative right to stop others from exploiting it. Thus, the ban on controversial brands can very well be held if found obscene or scandalous in nature or if hitting public interest.

Geographical indications (GIs), one of a subset of intellectual property rights (IPR), have recently assumed significant role in regulating variety of sectoral policies and national and regional, and international levels. Its relevance makes it one of the critical agenda in areas such as agriculture and international trade. Internationally, the articulation of GIs under TRIPs Agreement remains unclear and leaves policy and regulatory space for each country to choose their own path. The Continental Strategy for Geographical Indications in Africa—2018–2023 has introduced a new dimension about GIs. Legal instruments governing the East African Community (EAC) proffer a harmonized policy and regulatory framework for IPR as one of the means to attain the regional objectives. However, laws governing GIs in the partner states of EAC vary in terms of the nature and scope of protection and the underlying regulatory structures, resulting into heterogeneity in GIs protection in each country. Amid this regulatory dilemma, this paper examines the GIs laws in EAC by bringing to the fore the obtaining substantive and procedural differences amongst the partner states to EAC. The paper, among others, proposes a centralized regional approach for GIs protection to attain EAC's objective.