National Treatment and Most Favoured Nation Treatment in Maastricht


The 14th EIPIN Congress took place in Maastricht, from January 31 to February 2, 2013. It was organized and hosted for the first time by the newly acquired member IPKM. During three days, 50 students selected among the participants in the ML, MIPLC, QMIPRI, CEIPI and IPKM, attended lectures held by highly qualified professionals coming from the WTO, the EPO, the European Commission and the universities and law firm leaders in IP Law either in Europe or around the world.

This year the main issue at the stage was the interpretation and the applicability of the principles of international law constituted by the National Treatment and the Most Favoured Nation (MFN) Treatment. In particular, the congress covered the analysis of the mentioned principles in light of the main International Treaties in force among the WTO members, such as GATS, GATT, TBT, TRIPS, PC, BC, and the consequences that those principles produce in the branches of the International trades, the international investments and IP rights, as determined by the WTO jurisprudence.

The last day of the congress, the news introduced was a Mock Trial prepared and argue by ten students acting on behalf of three invented WTO Member States (Futura, Utopia, Morgana) before a WTO panel directed by Mr. Christopher Heath who argued the same case in 2005. The Mock Trial related to the compatibility of a free trade agreement between Futura and Utopia (“FUFTA”) and the above mentioned principles, provided the presence of a regional exhaustion within FUFTA and the discrimination treatment claimed by Morgana as pursuant to TRIPS and GATT.

The verdict of the jury, composed by the audience of students, was in favour of the defendants, considering that no case could be made under Art. 3 and 4 TRIPS, and Art. 6 TRIPS does not apply because for trade mark law does not apply the notion of exhaustion, which pre-supposes that a right exhausts after the first act of marketing. For trade marks the function is limited to the prevention of acts of confusion in first place, regardless of before or after the first act of marketing. Also Art. 16 TRIPS could not apply because, though it defines the scope of trade mark rights, based on likelihood of confusion, which does not exist in a parallel imports scenario, where origin confusion is excluded.

On the contrary, the arguments provided under GATT of non-discrimination of the goods as to their origin should have been accepted, considering the applicability of the principles as of Art. III.1 National Treatment, of Art. I.4 MFN Treatment, and the limited exception as pursuant to Art. XX, opening the doors to an international exhaustion regime. In light of this last consideration, is it necessary to focus on the extention of compliance of the European Union regional exhaustion with the GATT and to consider the scope of potential bilateral free agreements with States that are not part in it.

Written by Valentina Torelli

Image: FaceMePLS under creative commons license BY

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