The Internet is abuzz with talk of the Trans-Pacific Strategic Economic Partnership Agreement, known in an abbreviated form as the Trans-Pacific Partnership Agreement (“TPPA”). Although there has been much speculation about how the TPPA will affect international commerce, the problem with such speculation is that many of the negotiations have been shrouded in secrecy.
Kelly Warner PLLC has researched the potential implications of TPPA based on what few documents have been disclosed publicly; a partial analysis of TPPA is below. Because the current draft of the TPPA is not publicly available, this article relies on an early draft made public by the New Zealand government on the New Zealand Ministry of Foreign Affairs & Trade’s website. Since the publication of that draft, the language of the treaty may have changed.
Current Treaty Rights Unaffected
To begin with our analysis, it is important to note that the state parties “affirm their existing rights and obligations with respect to each other under the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party.” So, for example, the TPPA is not going to have any effect on the Berne Convention for the Protection of Literary and Artistic Works or the Paris Convention for the Protection of Industrial Property, if a party to TPPA is already a party to one of those treaties.
Right to Cancellation & Opposition
According to the New Zealand draft, each part to TPPA “shall afford an opportunity for interested parties to oppose the application of a trade mark and request cancellation of a registered trade mark.” Since Section 102.02 of the United States Patent and Trademark Office’s Trademark Trial and Appeal Board Manual of Procedure already provides for an opposition and cancellation procedure, this will have no impact on business owners in the United States. It may, however, affect business owners in other states party to the TPPA, or American business owners who wish to register their trademarks in those foreign states, if those foreign states do not already have an opposition or cancellation mechanism. If such procedures apply retroactively to marks which have been registered prior to the adoption of TPPA by a signatory state, it could have a serious impact on businesses. If the TPPA is ratified with these provisions, those that have enjoyed their trademark registration for decades, may find themselves facing a cancellation request from someone else.
First Amendment Impact
According to Article 10.6 of the New Zealand draft, “The Parties shall provide the legal means for interested parties to prevent commercial use of country names of the Parties in relation to goods in a manner which misleads consumers as to the origin of such goods.” From the language of the Article, and its location under “Intellectual Property,” it appears that this is not about determining where goods are manufactured, but whether a country endorses a product.
The broad application of this section, without any caveat protecting freedom of the press, would appear to conflict with the First Amendment to the United States Constitution. It does not take much imagination to think of ways in which this Article could, if implemented in the United States, could conflict with the First Amendment.
For example, in the early days of Sacha Baron Cohen’s character “Borat,” a number of news reporters and others seemed to be legitimately fooled into believing that he was from the country of Kazakhstan. Had he sold a book or produced a fake film, a law implemented by Article 10.6 could be used to prevent him from continuing to do so. Without providing protection for commentary, parody, and other valid components of freedom of speech, Article 10.6 may not be constitutional in the United States, and may negatively affect the freedoms of people in other member countries where the right to speak freely has no real protections against the legislature.
Aside from the wording of the New Zealand draft, there have also been recent reports from Australia about leaked documents indicating there may a different “three step test” regarding fair use exemptions for use of copyrighted content that restricts the test currently in place for the unpaid use of others’ intellectual property. Unfortunately, there is much speculation but little substantive information available about what such a test would entail and how it would differ from the current tests of various member states. However, we would recommend watching news reports to determine how exactly the test will change, as this could affect all sorts of commentators and people who parody other materials, depending on how such a test is worded.
The TPPA affects a number of areas other than intellectual property. For the purposes of this analysis, we have focused only on a partial list of policy effects that the TPPA might have on intellectual property laws in member states. It appears that the provisions about cancellation and opposition would have little effect on current American intellectual property law, though Article 10.6, if implemented in its current form, could conflict with the First Amendment’s protections of those who use satire to mock certain countries. The reported but vague stories about a three-step test for fair use of copyrights or trademarks should also be watched for further developments, as it could affect any Internet publishers who publish their content firsthand (rather than those who allow third party submissions subject to Digital Millennium Copyright Act safe harbors). We will continue to monitor the coverage of the TPPA and publish more if we discover any major developments.