Official Journal of the International Trademark Association. INTA 125 Years of Excellence. Vol. 93 January-February, 2003 No. 1

Transcription

1 Official Journal of the International Trademark Association INTA 125 Years of Excellence Vol. 93 January-February, 2003 No. 1

2 Vol. 93 TMR 101 INTA AND ASEAN OR AROUND THE WORLD IN A STATE-FREE HAZE By David C. Stimson * I. INTRODUCTION In the 1970s song Rocky Mountain High, John Denver sang about coming home to a place I ve never been before. That experience of feeling at home in a new place happened to me in March 1998, when I, as President of the International Trademark Association, attended the first International Conference and General Meeting of the ASEAN (Association of Southeast Asian Nations) Intellectual Property Association in Kuala Lumpur, Malaysia. Although it was my first trip to Southeast Asia, my hosts, led by the ever-gracious Dato V. L. Kandan, first president of the ASEAN IPA, were so welcoming that I indeed felt that I had come home. It was a small illustration of a large truth that I have seen again and again in INTA, that despite our many differences in nationality, ethnic background, age and gender, we members are bound together by our common interest in and commitment to trademarks. As a consequence, in imperceptible ways this shapes the way that we view the world and each other. Because we deal in a global trademark system we are more apt to see the world through global eyes and see each other as neighbors and friends, rather than as foreigners and strangers. II. ONE WORLD, ONE WORLD-VIEW From my first minutes in Malaysia I felt a powerful confirmation of the international scope of INTA. I had been attending INTA meetings, serving on INTA committees and socializing for years at INTA functions with many of the people who were attending the ASEAN IPA meeting. I knew them well and felt at home through my participation in INTA over the years. It was one world and I was part of it. * Chief Trademark Counsel for Eastman Kodak Company, Rochester, New York, Regular Member of the International Trademark Association. He was President of INTA from 1997 to He also has served on INTA s Board of Directors and as chair of the Federal Legislation, Finance, Planning, Nominating and Management Committees.

3 102 Vol. 93 TMR A review of INTA s Membership Directory illustrates both the international make-up of INTA as well as the importance of Asia to the world trademark community. INTA has 65 members in China, 30 in Indonesia and 20 in Malaysia, just to give a few examples. These high numbers would have been inconceivable just ten short years ago. INTA s organizational structure reflects this as well. There are dedicated and separate subcommittees for the Asian region dealing with anticounterfeiting and enforcement, legislation and treaties. A review of the work performed by these INTA committees just in the five years since I attended the first ASEAN IPA meeting reveals not only the broad array of trademark issues they have dealt with but also the obvious fact that these Asian issues are faced by every other region of the world: protection of famous and well-known marks harmonization of trademark laws and practices central trademark filing systems adherence to the Madrid Protocol and the Trademark Law Treaty compliance with TRIPS scope of protection of geographic indications parallel imports counterfeiting licensing better coordination between industry and government simplification and standardization of administrative, examination and registration procedures improved enforcement and judicial procedures customs recordation systems government trademark office computerization and electronic filing education and training These issues of importance to the Asian trademark community are consistent with the priorities set forth in INTA s Strategic Plan for , including: harmonization of trademark laws and procedures greater protection against piracy and counterfeiting

4 Vol. 93 TMR 103 balanced trademark protection against parallel imports balanced protection of trademarks in relation to geographical indications increased participation with national and international trademark authorities and organizations, both governmental and nongovernmental meetings, forums, seminars and publications on trademark issues III. ASEAN AND ASIA ASEAN was founded for political and security reasons in 1967 by five original member countries: Indonesia, Malaysia, the Philippines, Singapore and Thailand. Since that time, Brunei Darussalem, Laos, Vietnam, Myanmar and Cambodia have joined. In the thirty-six years since ASEAN was established, the region has undergone dramatic economic growth and has attracted much foreign investment. Trademarks have played a major role in this economic development and expansion. ASEAN as an organization is based on principles of consensus and cooperation with decisions made by the consent of all members. The centerpiece of ASEAN economic cooperation is the ASEAN Free Trade Area, the goal of which is to establish a regional free trade area by the early 21st Century by bringing down tariffs on trade within ASEAN. In addition to trade, ASEAN economic cooperation includes trademarks and other intellectual property, finance, investments, services, industrial cooperation, transport and communications, tourism, agriculture and forestry, small and medium enterprises, energy and minerals. The reason for my trip to the ASEAN IPA s inaugural meeting in 1998 was to represent INTA at that important occasion, lending INTA s support and emphasizing the shared goals and missions of INTA and ASEAN IPA. The cooperation and shared interests between the two trademark organizations have continued and grown in the years since my trip. In 2000, then INTA President Kim Muller, Executive Director Alan Drewsen and INTA Director, International Relations Bruce MacPherson led a large INTA delegation that attended the second ASEAN IPA conference in Singapore, advancing the mutual objectives of both organizations. The organizations strong affiliation is demonstrated by a statement on ASEAN s official website in July 2002, that ASEAN is also maintaining close relations with private sector

5 104 Vol. 93 TMR organizations, such as the ASEAN Intellectual Property Association and the International Trademark Association through regular consultations and other cooperative activities on various intellectual property issues. This connection between the two organizations is obvious. ASEAN serves as a regional microcosm for what is taking place on a larger scale around the world. These developments include economic growth, reduced tariffs and trade liberalization, more regional or multinational trademark systems such as the Madrid Protocol and the Community Trademark and the overall globalization of the world economy. Trademarks, as the calling cards for the products and services that both create and result from this globalized economy, play a crucial role. The universal nature of the topics for my presentation to the ASEAN IPA, although tailored to the ASEAN countries, demonstrated the internationalization of trademark law and practice. These topics included promoting the role of nongovernmental organizations, strengthening trademark protection in general, fighting counterfeiting in particular, educating governments and the public as to the importance of trademarks, increasing the role of Customs services in the protection of trademarks, providing more funds for trademark protection, passing more effective legislation and promoting adherence to and compliance with TRIPS and other international trademark-related treaties. In other words, what is on the minds of Asian trademark owners and practitioners is the same as the concerns of their counterparts anywhere else in the world. IV. MEMORIES AND METAPHORS As I reflect back on my visit to Malaysia, several memories serve as metaphors for the roles that INTA, ASEAN IPA and trademarks in general play in the worldwide marketplace. A. Information and Education My first morning in Malaysia, I attended the official opening of the Malaysia Intellectual Property Training Centre. On behalf of INTA, I presented a number of books on trademark issues to help start the library s collection. The crucial importance of education in general and of the new library in particular was recognized by the presence of Malaysia s Minister of Domestic Trade and Consumer Affairs, who formally accepted the books from INTA. This was a powerful statement by the government of Malaysia that information and knowledge about trademarks and the expertise of INTA are important to the future of both Malaysia and the ASEAN region.

6 Vol. 93 TMR 105 B. Cooperation of Associations and Governments The presence of several Malaysian governmental officials at the ASEAN IPA meeting illustrated the relevance of the premise of my main address to the meeting entitled, Cooperation from Non- Governmental Organizations: the Role of the International Trademark Association. It discussed the ways in which nongovernmental organizations such as INTA are cooperating with government officials around the world to promote the importance of protecting the rights of trademark owners. It focused on INTA s role in strengthening trademark protection globally and on INTA s efforts to combat serious counterfeiting problems in Southeast Asia. I stressed that the public and private sectors must work together and proposed concrete ways in which organizations such as INTA and ASEAN IPA can cooperate with governments and trademark owners to control counterfeiting. C. A World Without Borders During my visit, there was a constant haze in the sky caused by the smoke from massive forest fires in Indonesia, which is separated from Malaysia by miles of ocean. Despite this distance and the physical barrier of the ocean, what took place abroad affected us in Malaysia. So it is in the world of trademarks. With the proliferation of the global economy, worldwide corporations, regional organizations such as ASEAN, economic unions such as the European Community and the North American Free Trade Agreement (NAFTA) and trademark treaties, this truly is one world in which borders are becoming more and more irrelevant. Trademarks are leading the way by becoming universal brands and serving as the universal language of the new global village. If you mention KODAK, COCA-COLA or SONY to people almost anywhere in the world, chances are you re speaking their language. This globalization has accelerated since that first meeting of the ASEAN IPA. Nowhere is this more apparent than in the explosion of the Internet, a medium that knows no borders. Anyone anywhere can access any website, regardless of the physical location of the website s owner. The implications of this in the area of domain names and other trademark-related challenges are dealt with elsewhere in this issue of The Trademark Reporter, but they illustrate the validity of ASEAN s vision of regional and global cooperation and of pushing for a region and world that emphasizes our similarities and cooperation, rather than our differences and conflicts.

7 106 Vol. 93 TMR D. The Big Picture One night during the ASEAN IPA conference all the delegates went out to dinner in a revolving restaurant. Although it felt as if we were standing still, in reality in one hour we turned 360 degrees and saw the entire landscape as it lay beneath us. So it is in the world of trademarks today. It is constantly changing. In recognition of this, ten years ago the United States Trademark Association became the International Trademark Association and five years ago the ASEAN IPA was formed. The world is not standing still, but it is turning fast and we need to look up and out from our local perspective and see the big picture. E. The Proud Tower The most prominent sight that we saw as the restaurant revolved was the twin Petronas Towers, completed the year before as the tallest buildings in the world with heights of 1483 feet. The Petronas Towers were intended to serve as a dramatic symbol of the strength and importance of the ASEAN countries and the significance of their economies to the world. Now, of course, after the September 11, 2001, terrorist attacks on the twin World Trade Center towers in New York City, we see other meanings in tall buildings. In addition to power and strength, they now also symbolize vulnerability and weakness. The very factors that make them positive symbols their size and status also make them symbols to and targets of people who wish to take negative and destructive actions. In many ways, just as the perception of progress symbolized by the Petronas Towers has changed since they opened in 1997, so the economic progress of the ASEAN countries has changed since the first ASEAN IPA meeting in We hear less talk today of the Asian Tigers as powerhouses of the world s economy. Many members of ASEAN have seen their fortunes turn in the past five years. Indonesia barely survived an economic crisis from which it has not yet recovered. Malaysia and the Philippines have undergone political crises. Vietnam, Cambodia and Laos continue to await the benefits of the global economy. Just as there are positive and negative aspects to tall buildings, there are positive and negative sides to internationalization. We in the trademark community tend to see internationalization as a good that promotes trade and spreads and strengthens our brands. We favor uniform laws and treaties that add certainty and consistency to the protection of our brands. But internationalization is a means, not an end in itself. The goal of internationalization must be to benefit and better the lives of people around the world, such as by facilitating the free flow of goods, increasing consumer choices and decreasing costs. However,

8 Vol. 93 TMR 107 the common good inherent in environmental protection, workers rights and economic justice cannot be sacrificed on the general altar of internationalization. In the trademark arena, this means working for internationalization that will benefit both trademark owners and the public through easier registration, more consistent protection and stronger penalties for infringement and counterfeiting. Internationalization of trademark law should not mean favoritism and closed markets in the guise of protection of trademark ownership, watered down standards in the guise of uniformity or unfair trade practices in the guise of property rights. The founding of the ASEAN IPA illustrates the way in which the ASEAN region and all of Asia has aligned itself with the legitimate global free market economy, for which trademarks are the most potent symbol. In the past, when some of these countries were involved in illegitimate global markets, thinking that they had the most to gain by promoting counterfeit products and stacking the deck against foreign trademarks, they often fought against effective trademark laws and enforcement, both internally and abroad. Now that many of these countries have realized that they have more to gain by internationalizing and welcoming foreign trade and investment, they have revised and strengthened their own trademark laws and joined international treaties and organizations, such as INTA and ASEAN IPA, to promote the protection of trademarks and enhance the rights of trademark owners and consumers everywhere, both in their own countries and abroad. V. CONCLUSION The internationalization of INTA reflects, on a larger scale, the increased international focus of the world at large and, on a smaller scale, the internationalization of the Asian region as symbolized by ASEAN and the ASEAN Intellectual Property Association. When astronauts first went to the moon in the late 1960s, the photographs of the planet Earth as a small blue and white sphere in the vastness of space were a powerful demonstration of the common home we share, with common interests, problems and opportunities. The INTA logo, with its stylized globe, reflects this in a symbolic way. In a more concrete way, INTA s agenda and accomplishments demonstrate the international nature of trademark practice on INTA s 125th anniversary. Those of us who have been fortunate enough to travel as part of our trademark jobs, to work with our trademark colleagues around the world and to see the local market conditions in which the trademarks are used have similar reactions to those that must

9 108 Vol. 93 TMR have been felt by those early astronauts. This is indeed one world and the things that bind us together are much more numerous and important than those that separate us.