The CP is protected via Paris, TRIPS, and FTAs – it only gives more flexibility to reciprocal agreements
Suthersanen 19 [Uma, holds a Chair in Global Intellectual Property Law and is the current Director of the Queen Mary Intellectual Property Research Institute. Uma was previously the Academic Director of the London Intellectual Property Law LLM (2012-2021), and the Paris Intellectual Property Law LLM (2012-2015). “Utility models: do they really serve national innovation strategies?,” chapter from The Innovation Society and Intellectual Property, e,dited by Josef Drexl and Anselm Kamperman Sanders, https://www.elgaronline.com/configurable/content/edcoll$002f9781789902341$002f9781789902341.00010.xml?t:ac=edcoll%24002f9781789902341%24002f9781789902341.00010.xml, ALB]
2.2 International Rules The absence of a transnational pattern is reflected in the lack of international norms regarding the nature and extent of a second tier patent regime. For example, Article 1(2) Paris Convention merely states: ‘The protection of industrial property has as its object patents, utility models, industrial designs, trade marks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.’
Countries are free to formulate or reject utility model protection as they see fit; should a country introduce a utility model regime, it can tailor such a regime to exclusively adapt to local socioeconomic conditions and infra- structure. Nonetheless, it should also be noted that Paris Union countries which have a utility model regime cannot discriminate against a foreign rights holder in terms of recognition and enforcement of such utility models pursuant to the generally applicable national treatment obligation.11 Reciprocal national treatment will also apply for select international principles including the right of priority,12 the importation and forfeiture clauses,13 and the compulsory licensing arrangements.14 However, the Paris Convention is silent on the defi- nition, nature and scope of the right and protection. The TRIPS Agreement, by incorporating the main provisions of the Paris Convention, extends the WTO dispute settlement system to utility models; but the Agreement fails to estab- lish any other international benchmark for this form of protection.15
A consideration of other international arenas reveals that despite the recal- citrance of international instruments with regard to engagement with utility models, these rights are being increasingly recognised within the intellectual property chapters of free trade agreements (FTAs),16 or as investments under some international investment agreements (IIAs).1