SpicyIP Weekly Review (15 June – 21 June )

The highlight of the week was Swaraj’s extremely fascinating post on the US and Switzerland’s efforts to bring back to life a provision that would allow complaints to be brought before the WTO Dispute Settlement System even when TRIPS provisions were not violated. India’s very much TRIPS compliant pharmaceutical patents provisions – Section 3(d) particularly – have escaped what could potentially be an explosively controversial discussion at the WTO, despite the mounting pressure from the US. Swaraj writes that even if the two countries go ahead with their ‘empty threat’, there may just be a possibility that the very same provision could be used to bring a WTO challenge against the US, EU, etc for insisting on TRIPS plus provisions. Explaining the essence of a non-violation complaint, Swaraj states that while this is permitted in two of the WTO’s agreements (GATT and GATS), there has been a moratorium on its application to the TRIPS agreement as under Art 6.2-3  –a series of extentions has followed the the initial five year moratorium period from 1994, with the most recent extending upto 31st December, 2015. He quoted Professor Frederick Abbot’s considerations concerning the possible challenges to be faced if the moratorium was removed in line with US and Switzerland’s hopes. Swaraj noted that as according to the WTO non-violation background document which was last updated in 2009, the two countries have previously shown interest in allowing non violation com-plaints as well – to no significant effect. Lastly, he considers, in the light of Prof. Susy Frankel’s paper here, whether an argument can be made that developing countries are facing nullification or impairments of benefits that were reasonably expected to flow due to the signing of the TRIPS Agreement, but haven’t happened due to subsequent TRIPS+ FTAs, and whether the countries could bring non-violation complaints against US/EU for this.

In his article here, Matthew drew attention to the recently released ‘Trade Policy Review’. He writes that the extent to which IPR has been discussed in the review, and especially so in reference to India, is highly indicative of how the world is watching us closely. He encapsulates the most pertinent issues considered in the review, noting the mention of the draft National IPR Policy submission made by India. He goes on to quote important passages from the Preview with regard to the IPR Regulatory infrastructure and its dismal state of affairs, and then briefly mentions the critical note on Guidelines for Examination of Patent Applications. He further discusses the various important observations made in the Review concerning Trademark, Industrial Designs, Copyright, Test Data, Trade Secrets and test data protection, and finally – IP enforcement.

In the next post for the week, Anubha noted (and with considerable disappointment) the rather secretive nature of the RCEP negotiations that came to a close last week. She states that the very fact that access to information concerning your government’s international dealings is confined to negotiating officials or leaks from KEI (as in this case) or WikiLeaks, definitely points to something fishy. She writes that with the RCEP, each negotiating round appears to add more draconian elements to the existing texts. She quickly documents KEI’s previous leak on Japan’s IP proposal, and discusses the proposal tabled by South Korea in the October negotiations released in last week’s leak. She observes that all FTAs except TPSEP are competing in a race to kill public interest, consumer rights, innovation and free speech, and considers Jeremy Malcolm’s suggestion that RCEP could have been designed to be anti-TPP. She hopes that the next RCEP document leak looks more promising than this one.

In the next post for the week, Aparajita discussed the impending need to revive fading GIs in the light of the former judge of the Madras High Court and former Chairperson of the IPAB, Justice Prabha Sridevan’s article in the Hindu, where she discusses the need to extend active protection not only to conventional forms of IP Rights, but also to GIs. Aparajita notes that GIs seek to empower and benefit from a collective and unified perspective, and not from the point of view of each individual producer as often is the case in a number of intellectual property rights. She discussed the need for governments and government bodies to be actively involved in GI awareness initiatives so as to further the socio economic progress of the concerned regions, instead of appropriating the GIs for themselves( as discussed by Prashant here and here).

Our next post was a Tidbit, where Kartik briefly discussed the rather intriguing decision in Delfi AS v. Estonia (no.64569/09) , where the Grand Chamber of the European Court of Human Rights found the news portal Delfi AS liable for the illegal comments made by third parties on its website despite the fact that Delfi had taken the comments down as soon as it was notified about it. This had much to do with the fact that Delfi invited comments, and a direct connection could be established between Delfi’s revenue and number of comments – indicative of the fact that Delfi had considerable economic interest in the comments. Delfi’s commenting system allowed only and only Delfi to make any changes to the content of the comments – whether deletion or otherwise – leaving no control in the hands of the author after the comment had been posted. This extent of control, in the Court’s opinion went beyond that of an intermediary – thereby not giving the portal a free ticket to escape liability. She writes that this decision was widely regarded as a blow to free speech, but at the same time acknowledges the soundness of the reasoning employed by the court, noting that the consequences of the decision will have much to do with the manner in which the line between ‘Control’ and ‘intermediation’ is demarcated.

International Developments

• EU court lawyer advises Kit Kat shape cannot be trademark : Nestle’s attempt to trademark the shape of its four finger Kit-Kat bar in the UK fails.
• Lego figures are trademarked cannot be copied : Held by a European Court after competitor Best-Lock challenges Lego’s attempt to protect shape of its human figures.