MOR BAKHOUM, Max Planck Institute for Intellectual Property and Competition Law
Email: mor.bakhoum@ip.mpg.de
JULIA MOLESTINA, Max Planck Institute for Intellectual Property and Competition Law
Email: julia.molestina@ip.mpg.de

In the context of globalization the shift from the national to the global has become an economic reality and advanced the emergence of regional integration groups alongside regional competition policies. In the same vein, the West African Economic and Monetary Union (WAEMU) has adopted a regional competition law, which entered into force in 2003.

WAEMU follows a centralized approach to its competition policy, in which the Union not only has the exclusive competence to legislate on anticompetitive practices, but also bears the exclusive decision-making power regarding the enforcement of the law. National competition-law authorities are mainly excluded from the decision-making process and limited to consulting or executive functions.

However, the centralized approach is not flawless. The expected reforms in the member states are still pending, the collaboration of national structures and the community is not effective and the regional institutional level, which was supposed to constitute a strong authority, faces severe constraints in terms of resources and flexibility. The regional case law also remains limited. The effectiveness of the community competition law thus far has failed to live up to its expectations.

This paper builds on WAEMU’s eight years experience of enforcement as well as other regional integration experiences, such as ECOWAS or the EU, and identifies a certain number of criteria, which should be taken into account when designing a regional competition policy. The so called “competition constraints� are the number of states and the level of integration of the regional market, the fluidity of trade between member states, the respective institutional capacities of the member states and the Union, the existence or lack of a competition culture in the member states and the time dimension.

By analyzing the interaction between the competition constraints and the institutional design of a regional competition policy, one can extract certain principles of orientation regarding the applicable substantive law and the distribution of competences.

Applying the lessons learned to the case of WAEMU, the insufficient involvement of the national competition law authorities appears as one of the main deficiencies of the institutional framework of WAEMU. Therefore, this paper calls for a “controlled decentralization�, which includes the installation of a new collaboration framework between the regional and the national level.

JASON J. DU MONT, Max Planck Institute for Intellectual Property & Competition Law, Chicago-Kent College of Law
Email: jason.dumont@imprs-ci.ip.mpg.de
MARK DAVID JANIS, Indiana University Maurer School of Law
Email: mdjanis@indiana.edu

Design patent protection is the oldest American form of intellectual property protection for ornamental designs, but still the most enigmatic. Congress passed the first design patent legislation in 1842, operating on the assumption that existing rules for utility patents could be incorporated en masse to protect designs. This Article questions that assumption. Drawing on new archival research and historical analysis, this Article demonstrates for the first time how the design patent system originated. We analyze the international trade aspects of the first design patent legislation, linking the legislation with a brief burst of protectionist measures associated with the Whig party. We also examine technological innovations that ushered in the first major era of American industrial design in key antebellum industries, and we analyze lobbying efforts on behalf of those industries that led to proposals for early design protection, proposals that did not assume the incorporation of patent rules. We also prove for the first time how the American design patent system originated as a knock-off of British copyright and registered design legislation, and why the American system was likely forced into a patent rubric. Finally, we conclude by offering concrete suggestions for the courts and Congress to ease the design patent system back to its original roots.

SETH ERICSSON, Max Planck Institute for Intellectual Property and Competition Law, MIPLC
Email: seth.ericsson@miplc.de

This article analyses the potential impact of mega-event organizer (MEOs) efforts to combat advertising practices commonly lumped together and referred to as 'ambush marketing.' In particular, the article examines the MEO lobbying efforts to expand national trademark and unfair competition systems to include an event organizer right of association.

In order to present ambush marketing as an advertising tool, Section 2 begins by giving examples of ambush marketing methods, i.e. competitive marketing techniques regularly employed by nonsponsor businesses around mega-events. Section 2 then goes on to define ambush marketing in light of these selected examples, existing law and an event organizer right of association.

Section 3 introduces approaches MEOs have developed and implemented to reduce the avenues open to, and supposed detrimental effects of, ambush marketing in the absence of an event organizer right of association. A review of these strategies helps to contextualize the perceived need to expand legal systems to include an event organizer right of association.

Section 4 provides a survey of the sui generis protection regimes a growing number of countries have enacted so as to shield MEOs and their corporate sponsors from the alleged ill-effects of ambush marketing.

Section 5 concludes by critiquing the introduction of such laws from both a legal and a policy perspective. It is argued that the danger at play here is not so-called ambush marketing; instead, the real threat is posed by the MEO frontal attack on competitive advertising practices.

HENNING GROSSE RUSE-KHAN, Max Planck Institute for Intellectual Property and Competition Law
Email: henning.gr-khan@ip.mpg.de

Dispute settlement Panels and the Appellate Body of the World Trade Organization (WTO) have long been criticised for a ‘textual’ approach to treaty interpretation which focuses too much on the ordinary meaning of treaty provisions. Arguably this approach responded to fears of judicial activism and overreach by the judicial bodies which in turn may encroach upon sovereignty and national autonomy of WTO Members. In some decisions however, especially the Appellate Body has taken a more pro-active role, using for example object and purpose of the WTO Agreements to fill gaps and clarify ambiguities. For example in the famous US – Shrimp dispute, the Appellate Body emphasised that the sustainable development objective enshrined in the WTO preamble ‘must add colour, texture and shading to our interpretation of the Agreements annexed to the WTO Agreement’.

This of course includes the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). With its Articles 7 and 8, TRIPS is probably the only WTO Agreement which contains explicit textual expressions of its object and purpose. In the Doha Declaration on TRIPS and Public Health, all WTO Members stressed the importance of these norms for interpreting TRIPS. In substance, they align with the principle of integration and reconciliation of economic, social and environmental objectives. This principle is at the core of the notion of sustainable development as a concept in international law. It has been expressed in the ILA Declaration of Principles of International Law Related to Sustainable Development.

Against this background, one would expect Articles 7 and 8 TRIPS to play a prominent role in WTO dispute settlement related to TRIPS. Anyone familiar with IP-related disputes in the WTO however knows that this is not the case. This paper analyses when and how TRIPS jurisprudence has utilised these norms and tries to offer explanations for their (non) use.

ANNETTE KUR, Max Planck Institute for Intellectual Property and Competition Law
Email: annette.kur@ip.mpg.de

Under European trade mark law, ‘functional’ signs, i.e. signs exclusively consisting of shapes which result from the nature of the product, are necessary to achieve a technical result, or give substantial value to the goods, are barred from trade mark protection with absolute and permanent effect, without the possibility to establish secondary meaning. While the rule may appear sound as such, its application in practice is problematic, in particular as regards the third ground for exclusion, which is often referred to as ‘aesthetic functionality’. The article traces the origins of that rule in US case law and its application in Europe. It is argued that the original aim of the functionality doctrine in its various forms, namely to foster and maintain efficient competition, has been lost out of sight. Instead of embarking on an analysis of competitive concerns, courts tend to focus their attention on elements of largely accidental character, like the attractiveness of shapes in the early stage of marketing. Against that, the position is endorsed that it should not be precluded forever that a shape, initially attracting customers by its pleasant appearance, will become a valid sign at a later stage. Instead of focusing on how the public, at a given point in time, perceives and evaluates a certain shape, the crucial test should consist of an analysis of the competitive potential of the shape at stake, considering to what extent its assignment to one particular right holder would be liable to impede, or even exclude, efficient and meaningful competition.