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The TRIPS regime of trademarks and designs / Nuno Pires de Carvalho.
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Title:The TRIPS regime of trademarks and designs / Nuno Pires de Carvalho.
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Variant Title:Trade-Related Aspects of Intellectual Property Rights regime of trademarks and designs
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Author/Creator:Carvalho, Nuno Pires de, author.
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Published/Created:Alphen aan den Rijn, The Netherlands : Kluwer Law International, [2014]
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Holdings
Holdings Record Display
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Location:LAW LIBRARY (level 3)Where is this?
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Call Number: K1555 .C37 2014
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Number of Items:1
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Status:Available
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Location:LAW LIBRARY (level 3)Where is this?
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Library of Congress Subjects:Trademarks (International law)
Design protection (International law)
Intellectual property (International law)
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Subject(s):Agreement on Trade-Related Aspects of Intellectual Property Rights (1994 April 15)
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Edition:Third edition.
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Description:xviii, 578 pages ; 25 cm
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Notes:Includes bibliographical references and index.
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ISBN:9789041150172
904115017X
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Contents:Machine generated contents note: I. Primary Function of Intellectual Property and the Role of Trademarks and Industrial Designs
II. Trademarks and Industrial Designs from National Protection to the Paris Convention and to the TRIPS Agreement
[A]. Trademarks
[B]. Industrial Designs
Preamble Agreement on Trade-Related Aspects of Intellectual Property Rights
1. Scope, the Nature and the Function of the TRIPS Agreement
(a). scope of the TRIPS Agreement
(b). dynamic dimension of the TRIPS Agreement
(c). nature and the function of the TRIPS Agreement
(i). first objective of the TRIPS Agreement: to reduce distortions and impediments to international trade
(ii). second objective of the TRIPS Agreement: to protect private property rights
2. Intellectual Property and Trade
(a). TRIPS and the GATT
(b). WTO and WIPO
3. Trademarks and Designs and Economic Development
pt. I General Provisions and Basic Principles
Article 1 Nature and Scope of Obligations
TRIPS Agreement: A Minimum Standards Agreement (IN PART)
2. Method of Implementing the Provisions of the TRIPS Agreement
3. Implementation
4. Scope of TRIPS Obligations
Article 2 Intellectual Property Conventions
1. National Treatment Principle under the Paris Convention
2. Priority
3. Principle of Independence
(a). Independence of trademarks
(b). Independence of designs
4. Protection of Foreign Trademarks "As Is" in the Context of the TRIPS Agreement: A Difficult Conciliation
5. Article 5(B) of the Paris Convention and Trade Protectionism
6. From the Paris Convention to the TRIPS Agreement
7. Relation between the TRIPS Agreement and the Paris Convention
Article 3 National Treatment
1. "No Less Favourable" Treatment Standard of the TRIPS Agreement as Opposed to the "Same" Treatment Standard of the Paris Convention
2. Concept of "Necessity" in the TRIPS Agreement
3. Two GATT Panel Reports on the National Treatment Principle and Article XX(D) of the GATT 1947
4. Principle of National Treatment in the European Communities Cases
5. Scope and Reach of Footnote 3
Article 4 Most-Favoured-Nation Treatment
1. MFN Treatment Principle
2. MFN Principle and the National Treatment Principle: A Rule of Thumb
3. Scope of the MFN Principle
4. Exemptions from the MFN Principle
Article 5 Multilateral Agreements on Acquisition or Maintenance of Protection
1. Scope of the Exemption under Article 5
2. Example of an Admissible Exemption: Discriminatory Reduction of Fees
Article 6 Exhaustion
1. Exhaustion
2. Meaning of Article 6
3. Legal Implications of International Exhaustion
4. Using Exhaustion as a Tool to Address Anti-competitive Practices
5. Other Modalities of Exhaustion
Article 7 Objectives
1. Origins of Article 7 and the Notion of Intellectual Property
2. Article 7 Is Not about the Objectives of the TRIPS Agreement
3. Meaning of the Second Part of Article 7
Article 8 Principles
Paragraph 1
1. Article 8 Is Not about Principles of the TRIPS Agreement but about Principles of Its Implementation
2. Origins of Article 8
3. Conditions of the Application of Article 8.1
4. Article 8.1 and Non-violation Complaints
Paragraph 2
1. Meaning and the Reach of Article 8.2
2. Trademarks, Designs and Competition Law
(a). Introduction
(b). interface between intellectual property and competition law
(c). three levels of the interface
(i). Intellectual property in the wrong dosage
(ii). Anti-competitive abuses
(iii). (Rare) cases of anti-competitive intellectual property rights (even if in the correct dosage and not abused)
3. Interface between Intellectual Property and Antitrust in the TRIPS Agreement
4. Work in the WTO on the Interface between Intellectual Property and Antitrust
pt. II Standards Concerning the Availability, Scope and Use of Intellectual Property Rights
Section 2 Trademarks
Article 15 Protectable Subject Matter
1. Brief History of the Negotiations
2. Subject Matter of Section 2 of Part II: Registered and Unregistered Trademarks
3. Functional Definition of Trademarks
4. Distinctiveness: Relative and Absolute
5. Signs that Constitute Trademarks
6. TRIPS Agreement Covers Collective Marks but Not Certification Marks
7. Service Marks
8. Condition of Distinctiveness
9. Non-visually Perceptible Marks: Sounds, Scents and Tastes
10. Signs that Are Not Inherently Capable of Distinguishing versus Signs that Are Inherently Incapable of Distinguishing
Paragraph 2
Paragraph 3
Paragraph 4
Paragraph 5
Article 16 Rights Conferred
Paragraph 1
1. History and the Scope of Article 16.1
2. Likelihood of Confusion
3. Prior Rights
Paragraph 2
1. Objectives and Scope of Article 16.2
2. Protection of Well-Known Marks Does Not Depend on Actual Use
3. Well-Known Trademarks Do Not Need to Be Well Reputed: Notoriety Suffices
4. Quantitative Approach of Article 16.2
5. Elements that Can Assist in Identifying a Well-Known Mark
6. Scope of Article 16.2 Contrasts with that of Article 16.1
7. Registration as a Condition for Enforcing Rights in Well-Known Marks
8. Ultimate Criterion: Prohibition of Parasitic and Dishonest Practices
9. Article 16.2 Does Not Apply to Trademarks that Are Not Eligible for Protection under Paragraphs 1 and 2 of Article 15
Paragraph 3
Article 17 Exceptions
1. TRIPS "Flexibilities"
2. Scope and the Meaning of Article 17
Article 18 Term of Protection
Article 19 Requirement of Use
Paragraph 1
1. History and the Scope of Article 19.1
2. Justification of Lack of Actual Use
3. Relationship between Articles 19.1 and 15.3
4. Relationship between Articles 19.1 and 20
Paragraph 2
Article 20 Other Requirements
1. History of Article 20
2. Five Elements of Article 20
(a). Article 20 is about the use of trademarks in the course of trade, not about their enforceability
(b). In the course of trade
(c). Justifiability of the encumbering special requirements
(d). Encumbrances
(e). three examples of encumbering special requirements
3. Article 20 and Non-violation Complaints
4. Relationship between Articles 20 and 17
5. Meaning of the Second Sentence of Article 20
6. Implementation of Article 20
Interpretation and Practice
Article 20 and Public Health
(a). Encumbrances affecting the use of trademarks of pharmaceutical products
(b). Encumbrances affecting the use of trademarks of nutrition-related products
(c). Encumbrances affecting the use of trademarks of tobacco products
8. Global Trademarks and the Cultural Exception
Article 21 Licensing and Assignment
1. Scope of Article 21
2. Quality Control
3. Compulsory Licenses of Trademarks
4. Compulsory Assignments of Trademarks
5. Solutions Alternative to Trademark Compulsory Licensing
(a). Prohibition of use and cancellation of registration
(b). Restrictions on injunctions
6. Article 21 and Article 6quater(1) of the Paris Convention
7. Implementation of Article 21
8. Article 21 and Certification Marks
Section 3 Geographical Indications
Article 22 Protection of Geographical Indications
Paragraph 3
Article 23 Additional Protection for Geographical Indications for Wines and Spirits
Paragraph 2
Article 24 International Negotiations; Exceptions
Paragraph 5
Paragraph 7
Section 4 Industrial Designs
Article 25 Requirements for Protection
1. Section 4 of Part II Is about Protection, Not Registration of Industrial Designs
2. Substantive Conditions for Protection of Industrial Designs
(a). Independence of creation
(b). Novelty or/and originality
(c). Designs essentially dictated by technical or functional considerations
Article 26 Protection
Paragraph 1
Paragraph 2
1. (Non-remunerated) Exceptions to Rights in Industrial Designs: The Three Step Test
2. (Remunerated) Exceptions to Design Rights: Compulsory Licenses
Paragraph 3
Section 8 Control of Anti-competitive Practices in Contractual Licences
Article 40
1. Meaning and the Scope of Article 40
2. Legislative History of Article 40
3. Exhaustive or Indicative List? The Impact of the Language of Article 40.2 on the Freedom of WTO Members to Address Anti-competitive Practices in Contractual Licenses
4. Anti-competitive Clauses in Trademark Licensing Agreements
5. Article 40.2 and Non-violation Complaints
6. International Cooperation in the Field of Antitrust Violations in Licensing Agreements
pt. IV Acquisition and Maintenance of Intellectual Property Rights and Related Inter Partes Procedures
Article 62
Paragraph 1
Paragraph 2
Paragraph 4
pt. V Dispute Prevention and Settlement
Article 64 Dispute Settlement
1. Objectives and Nature of the Dispute Settlement Mechanism
2. Main Features of the Dispute Settlement Mechanism
3. Conciliatory Steps
4. Outcome of the Dispute Settlement Mechanism
5. Specific Issues Concerning the Withdrawal of Concessions in the TRIPS Agreement: The Problem of Cross-Retaliation Sanctions
6. Non-violation and Situation Complaints
7. Special (and Overlooked) Interest of LDCS in Non-violation Complaints
8. Disputes
9. Lessons from the Dispute Settlement Mechanism
Contents note continued: (a). First lesson: good intentions do not count
(b). Second lesson: more (protection) is always better than less
(c). Third lesson: international trade has reasons that the reason does not know
pt. VI Transitional Arrangements
Article 65 Transitional Arrangements
Paragraph 5
1. Standstill
2. Standstill and LDCs
Article 66 Least-Developed Country Members
Paragraph 1
Article 70 Protection of Existing Subject Matter
Paragraph 1
Paragraph 2
Paragraph 3
Paragraph 4.