10 - United States – Section 211 Omnibus Appropriations Act of 1998 (WT/DS176/AB/R): A Comment

Summary

As usual the authors have divided their labor, based on expertise. In particular, the economic analysis in section 4 was the responsibility of Damien Neven; Robert Howse's own understanding of the costs and benefits of international trade law rules with respect to intellectual property protection in general depends on a rather different framework for analysing the problem. However, in so far as the legal and economic analysis of the Havana Club case itself is concerned, which deals only with trademarks as a form of IP protection, the authors are in agreement.

Introduction

The first part of the chapter (section 2) summarizes the facts of the case and the decision taken by the Appellate Body (AB). We emphasize two issues that the AB dealt with, namely the extent to which the TRIPs may contain a substantive obligation to grant protection to a trademark registered in another country and National Treatment. Section 3 discusses the notion of trademarks, the trade-offs involved in protecting trademarks and the extent to which trademark protection should be coordinated across jurisdictions. We observe that there is a strong case in favor of trademark protection in terms of alleviating moral hazard and adverse selection in product choices but we also identify instances where trademark protection can be abused. We also observe that the case for coordination across jurisdictions is less compelling for trademarks than other forms of intellectual property.