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IV. Potential Remedies Available in Trademark Law One remedy to tackle Big Tech’s monopoly power includes breaking up Big Tech and regulating Big Tech merger activity (and its trademarks) to prevent unfair competition.151 Big Tech’s trademark dominance readily brings to mind the power and influence held by oil barons and the various monopolies of the early 1900s. Anti-trust laws were enacted to prevent the dominance of the various monopolies that emerged in the U.S.152 Although the problem is similar today, this solution probably is unrealistic due to the different nature of the dominance held by Big Tech and the old oil barons. Whereas the previous monopolies dominated in obviously distinctive spheres, many Big Tech companies exist in the same plane but in slightly different niches. Facebook, Google, Apple all share notable number of users, yet their business model does not conflict with one another. Therefore, even if these three companies are broken up, other companies will likely just take their place because the space these companies occupy on the economic ladder is so undefined and subject to change. An alternative remedy available in trademark law includes imposing higher fees on Big Tech companies that engage in frivolous or meritless trademark infringement claims. However, this is a difficult proposition because the likelihood of confusion multifactor test, discussed supra, is implemented differently by different circuits.153 Because no uniform standard has emerged on how many factors are needed to trigger a likelihood of confusion, the only way that this solution can become realistic is if the Supreme Court, or relevant authorities, implement a consistent confusion-based multifactor test to be used by all circuit courts. A uniform standard established across all circuits, will likely discourage Big Tech companies from pursuing trademark infringement suits based on meritless claims for likelihood of consumer confusion. A uniform standard would mean Big Tech companies who rely on their jurisdictional advantages would no longer be able to hide behind the shield of the law simply because they have more resources to file an infringement suit in a favorable jurisdiction. This should lead to less frivolous and meritless infringement claims and encourage additional competitors to enter the market. Conclusion The current market dominance by Big Tech makes the cost of market entry prohibitive and chances of success slim.154 As Big Tech acquires more technology companies, its market dominance is strengthened; thereby, making it more difficult for consumers to switch providers. High entry barriers and high switching costs reinforce Big Tech brand loyalty.155 Big Tech strategies run contrary to the intent of U.S. trademark law (i.e., to promote quality of goods and services by allowing customers to associate brands with quality). Big Tech has used trademark law to promote their monopoly power while decreasing the quality of their services. This is a significant problem in the Intellectual Property sphere today and requires immediate correction. Because we are in unchartered historical waters, the solutions are not clear, but what is clear is that unless an actionable solution emerges soon, Big Tech market dominance will not stop, and their continued exploitation of trademark law will only increase as they seek to further entrench themselves into the lives of every American.

US is also first to use requirement jurisdiction[2]. Commercial use is not just a need for registration in the United States, but it also emphasises the applicability of other trademark-related concepts. To explain, courts bolster the stipulation by extra doctrines in addition to Section 45 of the Lanham Act[3], which requires ‘use by a person’ as a prior prerequisite. Despite this policy, trademark trolling has been reported in both the United States, India and many other countries. More than 600 applications to register marks related to COVID-19 have been lodged with the US Patent and Trademark Office[4]. The quantity of applications is increasing, with many of them appearing to be “opportunistic” trademark applications. One, for example, is attempting to register the trademark “COVID-19 VIRUS FREE GUARANTEED” for clothing and other consumer items. Another is attempting to register the trademark “COVIDFREE” for antibacterial products. Indian courts have recently recognised these flaws and ruled in favour of legitimate users in a number of situations. Hennes and Mauritz v. HM megabrands Pvt. Ltd[5] was a case where H&M had filed a trademark infringement lawsuit against HM Megabrands. The Delhi High Court issued an interim injunction in this matter, finding that the plaintiffs will suffer injury and substantial economic loss if the injunction was not granted. This decision stresses that trademark trolling will not be tolerated by the courts, and that international trademarks are protected equally in the country. Ways to tackle the Trademark troll menace Trademark applications should be filed as soon as possible, not just in the countries where one does business, produces, or supplies commodities, but in all countries where future expansion is probable. Transliterating one’s trademarks, including logos, into the local language. Improving the registration procedure, especially in areas where the first-to-file strategy is used. Companies should perform vigilant searches and set up watch systems to discover trolls early on. To prevent uncontrolled registrations, fees for filing trademark registrations should be revised on a regular basis, and suitable changes should be made as economic condition and time changes. Companies or entities can keep track of the use of their own trademark in troll-friendly nations by archiving invoices, contact with distributors, and commercial papers. Legislative changes in the realm of trademark law, as well as judicial backing, will aid in the fight against the problem. The courts have lately made it clear in their judgements that applications filed frivolously or with malice will not be considered. To identify prospective trolls early on, set up watch services or do trademark searches. Updating the search and examining local media for references to the trademark on a regular basis will assist trademark owners in staying on top of local changes. Trademark trolling is a threat to growth and expansion of legitimate trademark users. The adoption of the First to Use policy is preferable to the First to File approach in terms of preventing trademark trolling.. In todays globalised economic world growth of business is the utmost priority and trademark trolling being a hindrance to growth must be mitigated by countries using first to file policy by adopting First to use policy. It must be noted that First to use policy is also not fully shielded as evident from the fact that common law jurisdictions such as India and USA too faces many cases of trademark trolling ,there are some loopholes on which the Govt. and the trademark holders should work to prevent them from being a victim of this menace.

Republican China hawks have a problem. They're eager to sell us on the notion that China is, as old GOP hand Newt Gingrich puts it, "the greatest threat to a free America that we have faced in our lifetime." Gingrich pins China's ascendancy on its "totalitarian system, extraordinary organization, and immense population," brushing aside the economic liberalization and market reforms initiated by former leader Deng Xiaoping—which ushered China out of Maoist isolation and into the global market—as mere smoke and mirrors, a "40-year-long propaganda campaign" masking the "real China."

This presents a quandary for the hawks. If they argue that China's meteoric rise is indeed the fruit of its "totalitarian system and extraordinary organization," does that mean they'll have to eat their words on the virtues of free enterprise and stop scoffing at socialist economies? Could it be that China has cracked the code on making a centrally planned economy thrive, a feat unseen elsewhere?

The international intellectual property system is expanding rapidly, yet it is at a point where its future remains undetermined. Although there has been wide disagreement over where the balance should be struck, the future standards are likely to fall somewhere in the middle—between what developed countries desire and what less developed countries can afford. Although some commentators have argued that less developed countries will eventually make a transition to become developed countries, it is premature to assume that less-developed countries, once developed, will always want the existing international intellectual property system. There is a good chance that they may want or need something rather different!

Secondly, many of the existing bilateral, regional and multilateral intellectual property rules may make it difficult for these countries to cross over from one side of the intellectual property divide to the other. As we learn from those subscribing to the Realist tradition, countries are likely to push for rules and regimes that reflect their self-interests. Upon crossing over, these countries may become strong intellectual property powers that compete effectively against existing developed countries. At some point, the existing intellectual property powers, therefore, may express a preference for measures that prevent the emerging powers from reaching the crossover point, notwithstanding their concerns about the global piracy and counterfeiting problems. After all, if everything (including intellectual property standards) is the same, what would prevent multinational corporations from relocating their operations to countries that have drastically lower production, labour and distribution costs?

To be certain, a one-size-fits-all model—such as the one pushed by the TRIPS Agreement and the TRIPS-plus bilateral and regional trade agreements—is problematic. However, harmonisation is not entirely bad. Even if it would be highly impractical to have a multi-size model, there remains a serious and important question about what size the model should take. Should it be extra large, or should it be extra small?41 The fact that less-developed countries strongly oppose a super-size-fits-all model does not necessarily mean that these countries will always resist greater international harmonisation. After all, both the Paris and Berne Conventions began with a focus on setting up only ‘‘size S’’ minimum international standards which most of today’s less-developed countries are likely to find acceptable.

Finally, the growing activities in the various international regimes have made salient the spill-over effects and unintended consequences of intellectual property protection, as well as the high complex interdependence among policies in different issue areas. Today, intellectual property protection has impacted a wide variety of areas, including agriculture, health, the environment, education, culture, competition, free speech, privacy, democracy and the rule of law. The access-to-essential-medicines problem, for example, has raised difficult issues concerning public health, human rights, institutional infrastructure and government expenditures, in addition to the protection of pharmaceutical patents and clinical trial data. Likewise, the protection of traditional knowledge and cultural expressions implicates human rights, indigenous rights, cultural patrimony, biological diversity, agricultural productivity, food security, environmental sustainability, business ethics, global competition, scientific research, sustainable development and wealth distribution.25

On the other hand, a proliferation of fora will benefit more powerful countries by raising the transaction costs for policy negotiation and co-ordination, thereby helping these countries to retain the status quo.18 The higher costs, along with the increased incoherence and complexities of the international intellectual property regime complex, are particularly damaging to less-developed countries, which often lack resources, expertise, leadership, negotiation sophistication and bargaining power. There are also justified fears that developed countries and their powerful supporting industries would launch what one commentator has described as a ‘‘multiple forum capture’’19—a multi-forum strategy that seeks to shape the agenda, discussions, and norm development in areas that are implicated by intellectual property protection.20 Secondly, with the arrival of the TRIPS Agreement and the growing use of TRIPSplus bilateral, plurilateral, and regional trade agreements, the international intellectual property system is no longer as international as it was originally designed. Rather, the system has now become global and somewhat supranational.21 While Paul Geller alluded to the new ‘‘network model’’ of intellectual property lawmaking,22 Jane Ginsburg observed the emergent development of a ‘‘supranational code’’.23 In the provocative words of noted English jurist Robin Jacob L.J., ‘‘as time goes on . . . the world will realize that at least for intellectual property the days of the nation-state are over’’.2

Most recently, the uncertainty brought about by the economic crisis has aggravated concerns on both sides of the intellectual property debate. While tension between developed and less-developed countries is already high, the crisis has created many serious domestic problems that make political compromises difficult to strike at the international level. Corporate downsizing has also led to a significant reduction in investment in research and development, although the changing economic structure does open up new opportunities for entrepreneurs, innovators, consultants, start-ups and other newcomers.

Let’s not mince words here. This is code for the US needs to change its patent laws and become like the rest of the world, which is an extraordinarily bad idea with extreme consequences.

I have never been a fan of harmonization, and undoubtedly many will take what I say with a grain of salt. That is fine, and to be expected. The reality, however, is when it comes to patent harmonization the debate is always about how the United States can, should and/or must change its patent laws to become more like the rest of the world. There is never any discussion about whether what the rest of the world is doing makes any logical sense, rather only that the US is different and needs to come into line. Whether you like me, whether you agree with me and whether you are a fan of harmonization or not, everyone must realize that change for the sake of change, change to just become like others and for no other logical reason, is asinine! What every parent knows inherently — just because your friends do it doesn’t mean you should do it — is simply ignored and treated as if it is irrational when debating international policy and harmonization. If you do not understand that logic and reason must play a role in the debate then you are a part of the problem and the rest of us need to be the solution.

Establishing a sound legal system for intellectual property rights

The Outline provides a strong legal framework to stimulate innovation and protects intellectual property rights.

​Geneva, Switzerland - After 11 days of intensive negotiations, the International Diplomatic Conference at the World Intellectual Property Organization (WIPO) Headquarters in Geneva, Switzerland has agreed on and adopted the International Treaty on the Protection of Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (24/5).

The final round of negotiations, which were attended by 193 WIPO member states and representatives of Indigenous People and Local Communities, lasted until early Friday, finally agreeing on a new international law in transparency and protection of the global patent system.

At its core, the DLT aims to simplify and harmonize the procedural requirements for obtaining registered industrial design rights across national and regional intellectual property (IP) offices. In the US, these are design patent rights. The DLT is intended to benefit designers seeking multinational protection for their designs by reducing discrepancies between jurisdictions’ filing requirements and associated costs and complications.no

In contrast, the proposed DLT is a harmonization treaty that aims to streamline and align the procedural requirements for obtaining industrial design protection at the national level. The DLT would set a maximum set of requirements that contracting parties can impose on design applicants, reducing differences in national and regional design registration procedures.

For utility patent experts, it may make sense to think about the relationship between the Hague and DLT as similar to that between the PCT and PLT in that one set (Hague and PCT) provides a framework for centralized applications and preliminary assessments at an international level, while the other set (DLT and PLT) focuses on harmonizing procedural requirements across jurisdictions at the national stage to streamline the application process nationally.

Lets see some Color: Although I have not fully contemplated the details of the proposed DLT, I believe that it would not require any changes to US patent law. One change in USPTO practice will be that the drawings / photographs may be in color “at the option of the applicant.” Currently, the PTO only permits color in the drawings based upon a petition with a showing as to why why the color drawings or photographs are necessary. In addition, the drawings rules in the DLT would permit a combination of photograph and drawing. It is not clear whether this rule is meant to include photographs that have been drawn-upon. Most design patent applicants include multiple views of the design. DLT makes clear that “the industrial design may, at the option of the applicant, be represented by one view that fully discloses the industrial design, or by several different views that fully disclose the industrial design.”

A. The Paris Convention for the Protection of Industrial Property8 The need for international protection of intellectual property'9 was realized as early as 1873.20 Many inventors kept their inventions secret due to the fear of having their ideas stolen or exploited.2' The Paris Convention for the Protection of Industrial Property (Paris Convention) was entered into in1883 to reduce these fears.22 This treaty was the precursor of all modern-day multinational protection for intellectual property.23 The Paris Convention established several fundamental principles.24These fundamental principles of "national treatment, "right of priority,""26 and "special agreements"27 have been incorporated in all subsequent multinational patent agreements.2 8 "National treatment" requires member states to accord nationals of other member states the same advantages under their domestic patent laws as they accord to their nationals.2 9 "Right of priority “entitles a patent applicant of one member country to a period of twelve months after the initial patent application to apply for protection.3 ° Member nations can also enter into "special agreements," forging stronger cooperation in patent protection.31 "These 'special agreements' may be bilateral or multilateral, but they must not contravene the other provisions of the Paris Convention."2 This is an important part of the treaty because all subsequent multinational and regional patent protection schemes are derived from this provision and are regarded as "special agreements.,33Although the Paris Convention eliminated some major roadblocks,34 itis rather rudimentary in providing inventors with any uniform standard of substantive patent rights.35 In short, the Paris Convention provides an important entry for inventors to journey down the path of multinational patent protection.3627.

B. The Patent Cooperation Treaty ("PCT")37"Whereas the Paris Convention dealt with substantive issues of patent protection, the... [PCT] deals with procedures to obtain international patent protection.'38 The United States took the lead role in the late 1960s in creating a new multilateral patent treaty to minimize duplicative patent application and examinations worldwide.39 The PCT took effect on January 1, 1978.40 The PCT constituted an important step towards rationalizing the filing of patent applications worldwide." "Stripped down to its essentials,4 2 the PCT enables an inventor to prosecute a single international patent application to obtain patent protection in multiple regions."43Although the PCT did not focus directly on the substance of patent law, it indirectly provided substantial impact." Also, the PCT rationalized the patent application process concerning filing, searching, and preliminary examination, it does not result in a globally harmonized patent system, which would result in one international patent.45

On Tuesday, May 7, the U.S. Court of Appeals for the Federal Circuit will hear argument in a long-awaited appeal addressing the inventorship of the Nobel Prize-winning CRISPR technology. The case is the latest in a continuing legal battle between two groups of innovators, each asserting patent rights to key aspects of the groundbreaking technology.

The facts on appeal are numerous, and the issues nuanced, covering questions of conception, reduction to practice, and written description (as well as cross-appeal issues). This article’s purpose is not to reiterate each side’s various legal positions, but to explore a narrower issue intertwined with the global CRISPR patent disputes: considerations of patent harmonization and the thus-far inconsistent patent outcomes.

Proponents argue this “formalities treaty” would particularly benefit small entities and those in developing countries, who currently face significant hurdles protecting designs abroad due to inconsistent and burdensome procedural requirements. By establishing a ceiling on what countries can require, the DLT constrains national flexibility, but also ensures applicants “maximum predictability and simplicity of procedures.”

Most Americans want the Biden administration to protect intellectual property rights at the World Trade Organization (WTO) and express concerns about waiving those rights, finds a new poll commissioned by the Bayh-Dole Coalition.

Why it matters: In 2022, the U.S. Trade Representative (USTR) agreed to a waiver of WTO IP protection for COVID vaccines. Now, USTR is considering an extension of the waiver to include COVID diagnostics and therapeutics.