Intellectual Property Rights In The Asia Pacific Trade Context

In this paper, we expand the analysis of intellectual property rights (IPRs) in free trade agreements (FTAs) undertaken by Puutio (2013). Our research is based on the AsiaPacific Trade and Investment Agreements Database (APTIAD) upon which we have built a parallel database that documents trends in the inclusion of IPRs in FTAs in the Asia-Pacific region. We note that: i. Technological progress, digitalization and globalization generate constant impetus towards international harmonization and increasingly complex IPRs legislation; ii. FTAs are flexible venue for international IPRs norm-setting, which poses significant challenges as well as opportunities; and iii. Forum shifting is best viewed as a rational response to private progress and public stagnation. In addition, we find that: i. Countries within the region have been involved in a growing number of bilateral and regional preferential trade agreements; ii. FTAs cover an increasing amount of subject matter over time, in line with technological progress and absorptive capacities; and iii. The stringency of IPRs in FTAs has grown; however, there is no clear evidence of spiraling or ratcheting up across all development groupings. In part I we discuss the foundations of assessing IPRs clauses in FTAs. In Part II we present the current state of affairs in Asia and the Pacific.

This book is highly topical. The shift from the multilateral WTO negotiations to bilateral and regional Free Trade Agreements has been going on for some time, but it is bound to accelerate after the WTO Doha round of negotiations is now widely regarded as a failure. However, there is a particular regional angle to this topic as well. After concluding that further progress in the Doha round was unlikely, Pacific Rim nations recently have progressed with the negotiations of a greatly expanded Trans-Pacific Partnership Agreement that includes industrialised economies and developed countries such as the United States, Japan, Australia and New Zealand, recently emerged economies such as Singapore, but also several developing countries in Asia and Latin America such as Malaysia and Vietnam. US and EU led efforts to conclude FTAs with Asia-Pacific nations are also bound to accelerate again, after a temporary slowdown in the negotiations following the change of government in the United States and the expiry of the US President’s fast-track negotiation authority. The book will provide an assessment of these dynamics in the world’s fastest growing region. It will look at the IP chapters from a legal perspective, but also put the developments into a socio-economic and political context. Many agreements in fact are concluded because of this context rather than for purely economic reasons or to achieve progress in fields like IP law. The structure of the book follows an outline that groups countries into interest alliances according to their respective IP priorities. This ranges from the driving forces of the EU, US and Japan, via Asia-Pacific resource-rich but IP poor economies such as Australia and New Zealand, recently emerged economies with strong IP systems such as Singapore and Korea to leading developing countries such as China and India and ‘second tier industrializing economies’ such as Thailand, Malaysia and Indonesia.

Trade mark law has become an increasingly important field of law in the context of a rapidly globalizing economy. The promotion and protection of marks is widely viewed as the most important tool for a successful expansion of business, particularly in areas of economic transformation such as the Asia-Pacific region. The importance of the Asian market for global competition makes the appearance of a book on the protection of well-known marks in Asia extremely timely. This collection of expert essays examines the legal protection of well-known marks both under trade mark and unfair competition law in 10 different jurisdictions of the Asia-Pacific region, analysing the still widespread piracy of well-known marks in the context of the underlying legal and cultural concepts. It explores the significance of trade marks in an information society, highlighting the tensions between those seeking to protect their well-established brands globally in an age of electronic commerce, and those concerned to prevent large firms from being granted indiscriminate control over certain marks without having made the corresponding marketing efforts. It examines the opportunities and problems arising from the advent of the new digital technology, and looks at some of the issues the technology gives rise to, such as the protection of domain names. The papers collected in this volume are the revised and updated proceedings of a conference on Trade Marks, Domain Names and Unfair Competition in the Information Age, held in Taipei in January 1999, as the result of the co-operation by the Sun Yat-Sen Institute for Social Sciences and Philosophy, Academia Sinica, Taipei, and the Max Planck Institute, Munich.

In several major areas of international trade'particularly software and technology transfer'a harmonised regime of intellectual property law is a crucial prerequisite to success. Yet this legal concept appears to be extraordinarily difficult to establish on any agreed-upon basis among countries. And nowhere has the sought-for harmonisation proven more intractable than in the countries of the Asia Pacific region. Intellectual Property Harmonisation in ASEAN and APEC investigates the complex issues that lie at the root of this major block to the unhampered global flow of commerce based on intangible assets. By highlighting the background of Asian legal systems, both in terms of culture and intellectual property systems, the authors suggest how the current obstacles towards greater harmonisation and integration may be overcome. Defining the accepted principles enshrined in TRIPS, the Paris Convention, and other international agreements, the presentation describes the relatively successful European experience and then goes on to develop strategic variations geared to relate more precisely to harmonisation, integration and co-operation in the East Asian region. Among the important elements of the problem (and its potential solutions) discussed in this book are the following: the strong influence of legal culture in the different Asian countries;the limits of IP harmonisation in Europe;the importance of understanding the political and cultural perceptions that prevail in the various Asian countries;the non-uniform approach of different Asian countries due in part to bilateral free trade agreements; andthe experience of patent office cooperation and its potential as a model for smaller countries. The contributing authors have all worked in the IP field for more than a decade and have followed closely the developments of intellectual property law since the advent of the TRIPS Agreement. Their collective expertise includes both academic and practical considerations on IP harmonisation. Intellectual Property Harmonisation in ASEAN and APEC will be of great value and interest to policymakers seeking effective enforcement of intellectual property rights, to international lawyers counseling clients on Asia, and to academics working in the fields of intellectual property or Asian law. MAX PLANCK SERIES ON ASIAN INTELLECTUAL PROPERTY LAW 10

Introduction -- Intellectual property rights basics -- Global intellectual property holdings -- Contribution of intellectual property to U.S. economy -- The organized structure of IPR protection -- U.S. trade law -- Issues for Congress.

Efforts to expand the scope of legal protection given to reputation and brands in the Asia Pacific region have led to considerable controversy. Written by a variety of experts, the essays in this book consider the developing law of reputation and brands in a fraught area.

Intellectual Property Rights as Obstacles to Legitimate Trade helps to understand one of the underlying rationales of the TRIPS Agreement in light of some of the most pertinent IP issues. The WTO/TRIPS Agreement for the first time put IP rights in the context of trade rules, such as when does the exercise of IP rights become an unjustified burden to legitimate trade? Cases have arisen where IP rights are conferred, used, or enforced in a manner that arguably impedes trade, both in domestic and international contexts. This groundbreaking book is the first comprehensive assessment of this controversial area of trade law, shedding important new light on the underlying rationales of the TRIPS Agreement. With contributions by both practitioners and academics working in a range of countries, this book considers thorny issues in such areas as the following: – interpretation of ‘obstacles to legitimate trade’ in the context of GATT/ WTO jurisprudence; – separating markets by preventing parallel importation in the context of patents; – geoblocking – territorial separation of digital markets; – using trademarks to prevent competition; – geographical indications – protection of terms that are considered generic in certain domestic markets; – seizure of goods in transit; – ‘evergreening’ patents – attempts to extend the duration of patents; – rights to second-hand digital goods or content; – unjustified threats – towards appropriate standards of liability. Focusing on topical and under-researched areas of IP law, the contributors stimulate a discussion on an overarching concern that is not often addressed – how to assess whether the protection and enforcement of certain IP rights in particular situations should be classified as trade barriers. As an incisive analysis of the desirable balance between the exercise of IP rights and the demands of legitimate trade, this book will be welcomed by practitioners, lawmakers, policy advisers, and academics in both trade law and IP law.

Economic growth across the globe increasingly depends on knowledge-based industries. As a consequence Intellectual Property Rights, or IPRs, are becoming increasingly integral to trade agreements. With the stagnation of the Doha Round the prospect of new global standards, to augment those already agreed through TRIPS (the Agreement on Trade Related Aspects of Intellectual Property Rights administered by WTO) is diminishing. Therefore some countries are using bilateral and multilateral trade agreements to push for strengthened IPR standards which they hope will become the new de facto international standards.At the turn of the millennium there were less than 10 agreements containing IPRs in the Asia-Pacific. At the end of April 2013, 51 trade agreements that include IPR provisions were in some stage of existence, according to Asia-Pacific Trade and Investment Agreements Database (APTIAD). The proliferation of IPRs within trade agreements has been notable and IPRs have become common subject matter for bilateral and multilateral treaties in the Asia- Pacific.Not all agreements give IPRs equal treatment however. Using the measure of impact explained in more detail in the paper it is possible to show that developed countries, Australia and the United States as well as the European Union show a persistent pattern of being involved only in high-impact agreements in terms of IPRs. Our findings also show that developing countries do not seek the inclusion of high-impact IPR standards in trade agreements when negotiating with another developing country. This finding validates the notion that the pressure for including IPRs in trade agreements originates from developed countries.