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Articles 1 - 18 of 18
Full-Text Articles in Intellectual Property Law
Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel Gervais
Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel Gervais
Michigan Journal of International Law
This Article attempts to resolve clashes between intellectual property and investor-state dispute settlement (“ISDS”). ISDS clauses contained in bilateral, plurilateral, or multilateral trade and investment agreements give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitral tribunal. This jurisgenerative right to file a claim against a state in an international tribunal with mandatory jurisdiction is exceptional; it is generally reserved to other states. Only multinational corporations can use ISDS to file claims against states in which they invest, provided the state is party to a bilateral investment treaty (“BIT”) or a trade …
Multipolarity, Intellectual Property, And The Internationalization Of Public Health Law, Sam F. Halabi
Multipolarity, Intellectual Property, And The Internationalization Of Public Health Law, Sam F. Halabi
Michigan Journal of International Law
The cause of global health today is arguably the most influential human rights movement ever seen, mobilizing vast flows of direct and indirect aid to the developing world to fight disease and build health care infrastructure; prompting the establishment of international organizations like UNAIDS and the Global Fund to fight AIDS, Tuberculosis and Malaria (Global Fund); including global health as a priority in major diplomatic summits; and driving the formation and implementation of international agreements to address global health threats. Champions of this movement claim that the diverse and influential state and non-state actors participating in the development of the …
Rebalancing Trips, Molly Land
Rebalancing Trips, Molly Land
Michigan Journal of International Law
Application of the World Trade Organization's (WTO) dispute resolution procedures to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) has provoked a variety of reactions over time. At its inception, the decision to enforce the treaty through the WTO's dispute resolution process was widely viewed as a loss for developing countries. Many feared it would lead to an explosion of litigation against developing countries and cause distortions in domestic intellectual property (IP) policy making. More recent scholarship, however, has argued that these fears were unfounded. Few disputes before WTO panels have involved violations of the TRIPS Agreement, even …
Toward A Trips Truce, Patricia L. Judd
Toward A Trips Truce, Patricia L. Judd
Michigan Journal of International Law
The World Trade Organization's (WTO's) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or Agreement), now over fifteen years old, regulates a marketplace characterized by extraordinary dynamism, influenced by the constant forces of globalization and technological evolution. Attempts to regulate this market raise natural, persistent questions concerning the Agreement's ability to serve its respective constituencies and adapt to change. The Agreement operates in the midst of an age-old dynamic pitting developing and developed countries against one another, especially when it comes to domestic enforcement against piracy and counterfeiting-a dynamic in which TRIPS has been criticized as a one-sided instrument. …
Acta's State Of Play: Looking Beyond Transparency, Michael Geist
Acta's State Of Play: Looking Beyond Transparency, Michael Geist
American University International Law Review
No abstract provided.
Transparency Soup: The Acta Negotiating Process And "Black Box" Lawmaking , David S. Levine
Transparency Soup: The Acta Negotiating Process And "Black Box" Lawmaking , David S. Levine
American University International Law Review
No abstract provided.
Acta And The Specter Of Graduated Response , Annemarie Bridy
Acta And The Specter Of Graduated Response , Annemarie Bridy
American University International Law Review
No abstract provided.
Acta - Risks Of Third-Party Enforcement For Access To Medinces, Brook K. Baker
Acta - Risks Of Third-Party Enforcement For Access To Medinces, Brook K. Baker
American University International Law Review
No abstract provided.
Paper Dragon: Inadequate Protection Of Intellectual Property Rights In China, Omario Kanji
Paper Dragon: Inadequate Protection Of Intellectual Property Rights In China, Omario Kanji
Michigan Journal of International Law
This Note will explore the extent to which China is in violation of its obligations under TRIPs. Section I surveys the current state of IPR infringement in China. Section II analyzes relevant TRIPs provisions, case law, and treaties that supplement TRIPs provisions. Section III analyzes Chinese criminal law, the December 2004 Judicial Interpretation of Chinese criminal law, and Chinese IP law as they pertain to IPR infringement. Section IV outlines enforcement efforts in China against the backdrop of the law analyzed in the previous section. Section V evaluates these enforcement efforts given China's capabilities and obligations, and Section VI concludes …
Power, Norms, And International Intellectual Property Law, Tai-Heng Cheng
Power, Norms, And International Intellectual Property Law, Tai-Heng Cheng
Michigan Journal of International Law
This Article begins with the premise that international law is the net result of global processes of interactions among state and non-state participants in the international system. The Article builds on the author’s previous work by proposing a theory of international law that fills the interstices between private and public international law. Participants generally deploy power and invoke legal and social norms in pursuit of interests and in response to the strategies of other participants. Eventually, outcomes that reflect both power and norms result, and these outcomes in turn modify norms and reallocate power. New outcomes then follow in future …
Staying Within The Negotiated Framework: Abiding By The Non-Discrimination Clause In Trips Article 27, Kevin J. Nowak
Staying Within The Negotiated Framework: Abiding By The Non-Discrimination Clause In Trips Article 27, Kevin J. Nowak
Michigan Journal of International Law
This Note argues that the Panel in Canada-Generic Medicines correctly decided that the non-discrimination clause in Article 27 applies to the exceptions of Articles 30 and 31. Because Article 27 is the guiding force of Section 5, any exceptions to the rights granted under Section 5 must comply with the requirements set forth in Article 27. Although extreme applications of the non-discrimination clause could be limiting upon some exceptions, Articles 30 and 31 were not placed into TRIPs as complete escape clauses from the framework of Section 5. Additionally, the application of the non-discrimination clause to Articles 30 and 31 …
Treaty Governance, Intellectual Property And Biodiversity, John Linarelli
Treaty Governance, Intellectual Property And Biodiversity, John Linarelli
Scholarly Works
When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …
Assessing Clashes And Interplays Of Regines From A Distributive Perspective: Ip Rights Under The Strengthened Embargo Against Cuba And The Agreement On Trips, Robert Dufresne
Michigan Journal of International Law
This Article examines the clash of the two regulatory frameworks from the angle of distributive justice. By doing so, I suggest that in addition to the important issues of legitimacy, substantive norms, and hierarchy of legal orders, clashes between potential regulatory frameworks should also be conceptualized in the way in which they allocate goods (here the rights associated with IP) or recognize claims to or interests in such goods. The reasons for being concerned with distributive justice are threefold.
The Desirability Of Agreeing To Disagree: The Wto, Trips, International Ipr Exhaustion And A Few Other Things, Vincent Chiappetta
The Desirability Of Agreeing To Disagree: The Wto, Trips, International Ipr Exhaustion And A Few Other Things, Vincent Chiappetta
Michigan Journal of International Law
This Article proposes a procedural and substantive approach specifically designed to achieve this result. Concerning process, interim national and regional decisionmaking and the multilateral debate must expressly broaden and clarify the values and interests at stake. Three basic operational principles advance this objective. First, comparisons based on IPR labels (patent, copyright, and the like) confuse rather than illuminate. Instead, focus must be on the actual underlying policy justifications and objectives. Second, the full range of implicated justifications (economic and otherwise), including those outside the decision-makers' own norms, must be expressly identified and considered. Finally, any position taken or decision reached …
Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray
Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray
Other Publications
MS. PERLMUTTER: We have heard today about copyright in two different regions of the world, in Central and Eastern Europe' and in China. In recent years there has been an increasing convergence in the substance of national laws in different regions of the world. One of the major factors has been the TRIPs Agreement? I will focus on the current efforts toward implementing the TRIPs Agreement, and this will be a procedure-oriented talk.
Theft By Territorialism: A Case For Revising Trips To Protect Trademarks From National Market Foreclosure, Beth Fulkerson
Theft By Territorialism: A Case For Revising Trips To Protect Trademarks From National Market Foreclosure, Beth Fulkerson
Michigan Journal of International Law
This Note will argue that the "well-known mark" standard of the Paris Convention, which is also adopted by the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS), the North American Free Trade Agreement (NAFTA), and the European Community (EC), is an artifact of an era when markets were circumscribed by national borders and granting a monopoly on a trademark in one country on the basis of its use in another was unreasonable because the likelihood of confusion was minimal. Today, however, the trademark originator's intent to expand beyond its original market should be presumed. …
Preventing The Theft And Illegal Export Of Art In A Europe Without Borders, Kimberly A. Short
Preventing The Theft And Illegal Export Of Art In A Europe Without Borders, Kimberly A. Short
Vanderbilt Journal of Transnational Law
The opening of internal borders within the European Community presents tremendous opportunity for European economic growth. Yet with all the potential benefits come many problems. Increased illegal art trafficking is one of these problems. This Note examines European treaties, laws of the individual EC Member States, and Community-wide treaties and regulations designed to prevent the theft and illegal export of art. The Note discusses how the differing interests of the Member States have prevented agreement on legislation to protect art and resulted in measures inadequate to protect Europe's vast art treasures. After analyzing the latest EC regulatory attempt to protect …
U.S.-Thailand Trade Disputes: Applying Section 301 To Cigarettes And Itellectual Property, Ted L. Mcdorman
U.S.-Thailand Trade Disputes: Applying Section 301 To Cigarettes And Itellectual Property, Ted L. Mcdorman
Michigan Journal of International Law
Irrespective of the close economic and strategic relationship between Thailand and the United States, the United States has utilized Section 301 (and Special 301), and the consequent threat of trade retaliation, in its relations with the Land of Smiles. The purpose of this article is to examine the operation of Section 301 and Special 301 regarding trade in cigarettes and intellectual property.