T Domestic - CNDI 2024

T – “Domestic”
Resolution
Resolved: The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.
Plans that Violate
E-Commerce
The United States federal government should determine that constructive knowledge of trademark infringement creates contributory trademark liability and a duty to investigate for online intermediaries.
This is a trademark affirmative that tries to increase trademark enforcement against online platforms (like Amazon, eBay, etsy or Facebook marketplace) that don’t take action against counterfeiting. Counterfeiting is a specific form of trademark infringement regulated under the Lanham Act, where a bad actor tries to sell a product under a counterfeit trademark. The problem with counterfeiting enforcement is that most counterfeit products sold in the United States are made in other countries, and it’s impossible to prosecute someone in China for selling a counterfeit good online in the United States. The affirmative claims that instead, the platforms that list and sell those counterfeit products should be held liable for trademark infringement and damages if they do not take proactive measures to enforce anti-counterfeiting measures.
Waivers
The United States federal government should significantly strengthen its protection of domestic intellectual property rights in patents from biotechnology patent waivers.
This AFF strengthens domestic IP protections by making patent waivers (the government’s ability to seize the intellectual property rights to an invention or a set of inventions) in biotechnology (encompasses vaccines, gene-editing, biofuels, medicines and therapeutics for healthcare, and far more) illegal. In 2022, the World Trade Organization (WTO) passed a patent waiver for COVID-19 vaccines, which the U.S. supported. This waiver exempted all of the consigning countries from certain protections under TRIPS (The Agreement on Trade-Related Aspects of Intellectual Property Rights, which compels WTO members to implement a set of IP protections.)
1NC
1nc – T domestic
a. “Domestic” means the plan must exclusively create protection within the United States
Kellie Kunkle, 2023 – “Understanding The Difference Between Domestic And International Intellectual Property Law” Intellectual Property Law, 8/31, https://www.intipsa.com/what-is-the-difference-between-domestic-and-international-intellectual-property-law //DH
Intellectual property (IP) law is a complex and ever-evolving field, with different rules and regulations governing different countries. It is essential to comprehend the distinction between domestic and international IP law to guarantee that your IP rights are secured. Domestic IP law is the set of laws that control intellectual property inside a particular nation. These laws are typically set up by the legislature of that nation and are intended to secure the privileges of people and organizations to their intellectual property.
This incorporates patents, trademarks, copyrights, trade secrets, and other forms of IP. Domestic IP law is usually enforced by the courts of that country, although some countries may have international agreements in place that allow for enforcement of IP rights in other countries as well. International IP law, then again, is a set of laws that control intellectual property across multiple countries. These laws are typically established through international treaties or agreements between countries.
International IP law is intended to give a uniform set of rules for protecting IP rights across multiple countries. This incorporates giving assurance for patents, trademarks, copyrights, trade secrets, and other forms of IP. International IP law is usually enforced by international courts or tribunals. The primary contrast between domestic and international IP law is that domestic IP law applies just inside a particular nation, while international IP law applies across multiple countries. Domestic IP law is typically more prohibitive than international IP law, as it is intended to secure the privileges of people and organizations within a particular country.
b. Violation – The plan goes beyond the United States, including international infringement and protection.
c. Vote NEG:
1. LIMITS---international rights are a separate can of worms, making NEG prep untenable---hurts fairness and topic education.
2. PRECISION---only our evidence defines ‘domestic’ in the context of IP---predictable definitions maximize clash.
2NC
2nc – Effects Violation
Just having some domestic activity doesn’t make the plan domestic – that broad interpretation means anything has an effect on domestic commerce would be topical
Samuel Alito, 2023 – justice of the US Supreme Court, writing the majority opinion in a 9-0 decision. ABITRON AUSTRIA GMBH ET AL. v. HETRONIC INTERNATIONAL, INC. 6/29, https://www.supremecourt.gov/opinions/22pdf/21-1043_7648.pdf //DH
italics in original
JUSTICE SOTOMAYOR’s expansive understanding of the Lanham Act’s domestic applications threatens to negate the presumption against extraterritoriality. In Morrison, we warned that “the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.” 561 U. S., at 266. If a claim under the Act involves a domestic application whenever particular “‘effects are likely to occur in the United States,’” post, at 5–6, the watchdog is nothing more than a muzzled Chihuahua. Under such a test, it would not even be necessary that “some” domestic activity be involved. It would be enough for there to be merely a likelihood of an effect in this country. Applying that standard here would require even less connection to the United States than some explicitly extraterritorial statutes, which must have, at a minimum, actual domestic effects to be invoked. See, e.g., Hartford Fire Ins. Co. v. California, 509 U. S. 764, 796 (1993) (holding that the extraterritorial provision at issue “applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States”).
This approach threatens “‘international discord.’” Kiobel, 569 U. S., at 115. In nearly all countries, including the United States, trademark law is territorial—i.e., “a trademark is recognized as having a separate existence in each sovereign territory in which it is registered or legally recognized as a mark.” 5 McCarthy §29:1, at 29–4 to 29–5. Thus, each country is empowered to grant trademark rights and police infringement within its borders. See, e.g., ibid.; Ingenohl v. Olsen & Co., 273 U. S. 541, 544 (1927); A. Bourjois & Co. v. Katzel, 260 U. S. 689, 692 (1923).
2nc – International Violation
‘Domestic’ means U.S., excluding international agreements.
Emejuo ’20 [Ckukwuemezie; August; Nigerian attorney specializing in patent law; My IP Law Guide, “What Is Domestic Intellectual Property (IP) Law: An Introduction,” https://myiplawguide.com/wp-content/uploads/2020/08/WHAT-IS-DOMESTIC-IP-LAW-BY-C-C.-EMEJUO.pdf]
In understanding what Domestic IP Law means, we have to understand the context in which the word “domestic” is used. The English electronic dictionary defines domestic to mean “of or relating to home” and “internal to a specific country”. Adopting this definition, “domestic” qualifies activities peculiar to a locality which is home to some persons. Thus, an opposite of “domestic” will be “foreign” or “international”.
Therefore, Domestic IP Law will refer to the IP Laws of a region, state, or nation that applies to the people of such region, state, or nation. This is opposed to the International IP Laws. Here when we refer to the Domestic IP Law in this sense, we refer to the Domestic IP Law of States like Nigeria, Ghana, England, South Africa, Britain, USA, Cameroon, to mention but a few. For every State, reference must be made to its specific legislation, although the provisions of the law may be similar. There are, however, subsidiary legislations that may be made in a state to regulate IP practices, this class of legislations shall not be treated in this discourse. For the purpose of this discourse I shall identify the Domestic IP Laws of Nigeria, Cameroon and Ghana and reference shall only be made to legislations. I encourage detailed discussions on them on later sessions.
“Domestic” law is explicitly distinguished from treaty law.
Horn ’23 [Marian Blank; September 13; Senior Judge of the U.S. Court of Federal Claims; “Christensen v. United States,” 168 Fed. Cl. 263, lexis]
According to plaintiffs, "the [Internal Revenue] Code need not expressly provide for a foreign tax credit if the foreign levy in question falls within the treaty definition of a creditable tax" because "what constitutes a United States income tax for purposes of the application of a treaty derives from the treaty's definition and not from domestic law."32 (emphasis in original; alteration added). Plaintiffs argue that "[d]omestic law therefore does not constitute an absolute limitation on the rights and entitlements that may be granted to treaty beneficiaries under the terms of a U.S. tax treaty." (alteration added). Plaintiffs state that "[t]he parties agree that the NIIT constitutes a United States income tax as defined in Article 2(1) and 2(2) of the French Treaty," and, therefore, "that when a treaty provides a definition of a covered tax, it is that definition, and not the more limited definition under United States or foreign law, that is applied." (alteration added).
2nc – E-Commerce Violation
Enforcement against trademark counterfeiting is extraterritorial, not domestic
Kari Kammel, et al, 2023 – Director of the Center for Anti-Counterfeiting and Product Protection at Michigan State University and an adjunct professor of law at MSU College of Law“Trademark Counterfeiting Enforcement Beyond Borders: The Complexities of Enforcing Trademark Rights Extraterritorially in a Global Marketplace with Territorial-Based Enforcement,” 33 Fordham Intell. Prop. Media & Ent. L.J. 595 (2023). https://ir.lawnet.fordham.edu/iplj/vol33/iss3/3 //DH
Today, e-commerce and the sale of products occurs on a global scale. Whereas commerce and the trade of goods used to be done almost entirely within a territory or through goods moving across borders, the global supply chain now has many different forms and can cross many borders, jurisdictions, and the online space. While reaching consumers has become easier for sellers, protecting intellectual property has become increasingly complex. Globalization is prompting a reevaluation of this field as the Internet reduces the importance of national borders. Trademarks are particularly susceptible to the effects of globalization because, unlike copyrights and patents, trademark law is perceived, at least in the United States, to “extend across national borders.”1 In this paper, we focus on the enforcement of trademark rights, particularly those used against counterfeiters. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and review how different countries and jurisdictions approach this practice. In order to examine extraterritoriality in this context, we need to review the history and basis of jurisdiction. In the global enforcement of intellectual property rights, a general principle of territoriality exists.2 This principle exists beyond the scope of intellectual property and goes to the root of international law, noting that countries, or nation-states, can only enact and enforce laws within their own territory.3 This concept originates in public international law and can be found in international intellectual property conventions and treaties, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights,4 the Madrid Agreement Concerning the International Registration of Marks,5 and the Protocol Relating to the Madrid Agreement.6 However, while spelling out details of enforcement in intellectual property, these international agreements contain only minimum standards,7 and each individual country must have domestic implementing legislation to enforce that law and fulfill their treaty obligations.8 Once a country creates and implements domestic legislation, the executive, judiciary, or other appropriate government body interprets the laws, which is often where we see the doctrine of extraterritoriality arise.9
The plan’s extraterritorial because it applies to e-commerce
Kari Kammel, et al, 2023 – Director of the Center for Anti-Counterfeiting and Product Protection at Michigan State University and an adjunct professor of law at MSU College of Law“Trademark Counterfeiting Enforcement Beyond Borders: The Complexities of Enforcing Trademark Rights Extraterritorially in a Global Marketplace with Territorial-Based Enforcement,” 33 Fordham Intell. Prop. Media & Ent. L.J. 595 (2023). https://ir.lawnet.fordham.edu/iplj/vol33/iss3/3 //DH
Despite the seemingly territorial nature of trademarks, the sale of trademarked goods on e-commerce and social media have exponentially increased the amount of cross-border transactions, and therefore also the amount of infringing goods sold online across multiple jurisdictions. Because infringers can reach potential consumers of goods and services anywhere in the world, a tension now exists between the territorial nature of a trademark and the global nature of the potential consumer. The basis for extraterritorial reach is mainly “to either prevent spillovers from extraterritorial activities into the local market (inbound regulation) or to protect and enforce the interests of the rightsholders also in other territories by implementing the local IP regime (outbound regulation).”19
Domestic means the plan can only apply to actual harm in US commerce – a broader interpretation is unpredictable
JEFFREY A. LAMKEN, 2022 – Counsel of Record for Arbitron. Brief for Petitioners in the case ABITRON AUSTRIA GMBH, ET AL., Petitioners, v. HETRONIC INTERNATIONAL, INC. Respondent. https://www.supremecourt.gov/DocketPDF/21/21-1043/250394/20221219183705310_Abitron%20-%20Brief%20for%20Petitioners.pdf //DH
II.A-B. The government agrees the Lanham Act does not apply extraterritorially. It suggests that applying the Act to a foreign sale represents a “domestic” application if the “effect” of that sale might be U.S. consumer confusion. That argument is waived and without merit. The Lanham Act requires “use in commerce.” Because the Act’s definition of “commerce” does not extend to foreign conduct, the “use in commerce” must be in the United States.
Likewise, the Act’s text and structure make clear that its “focus” is trademarks’ “use in commerce.” It is that “use” that must be domestic. The government suggests that the statute’s “focus” is consumer confusion, such that the Act is applied “domestically” to foreign conduct if that conduct has the potential “effect” of confusing U.S. consumers. But extraterritoriality is primarily concerned with conduct, not effects. The government’s standard is a test for determining when an extraterritorial law should cover foreign conduct—not distinguishing extraterritorial from domestic application. The government’s test gives the statutory term “use in commerce” inconsistent meanings. It is unpredictable, threatens international friction, and serves little practical purpose.
III.A. The Tenth Circuit’s diversion-of-foreign-sales theory—that the Lanham Act applies extraterritorially whenever U.S. plaintiffs claim lost foreign sales—distorts the Act beyond recognition. It is divorced from statutory text; exceeds the commerce power; and would impose a protectionist regime in breach of treaty obligations.
2nc – WTO/TRIPS Violation
They don’t meet---even if the protections are domestic, the rights they’re protecting are international.
Subhan ‘6 [Junaid; July; Vice President of Legal Affairs and Chief Compliance Officer at Sagard; “Scrutinized: The TRIPS Agreement and Public Health,” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2323529/]
The World Trade Organization’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994 seeks to implement a uniform set of intellectual property protection across member nations to provide greater stability in international economic relations. Critics argue that the TRIPS agreement provides unnecessarily strong protection of intellectual property rights which serves to prevent the ill in developing nations from having access to affordable essential medications.
TRIPS is an international agreement that modifies IP law across borders.
Petersen ’22 [Douglas and Ernest Kawka; November 29; PhRMA’s Deputy Vice President for International Trade, previously served as International Trade Counsel for the U.S. Senate Committee on Finance; PhRMA’s Deputy Vice President for International Intellectual Property, J.D. from the University of New Hampshire School of Law; PhRMA; “Word of the Month: What is TRIPS?” https://phrma.org/en/Blog/Word-of-the-Month-What-is-TRIPS]
The World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a comprehensive international agreement dating from 1995 that establishes minimum intellectual property (IP) protections. Signed by the vast majority of WTO member countries, TRIPS provides a basic global floor for IP standards. TRIPS seeks to ensure that IP is protected and enforced across borders and that bad actors do not get a free ride on innovators’ investments. Least-developed countries are exempt from meeting most substantive TRIPS obligations, while countries seeking to promote and lead innovation, such as the United States, provide IP protections beyond the minimum requirements of TRIPS.
TRIPS ‘originates’ from Morocco.
Kassor ’18 [Alphonso; 2018; Mitchell Hamline School of Law; Vol. 9, Is. 1, “The World Trade Organizations' Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement: The Compelling Challenges for Developing and Less Developed Member Countries-Implementation and Enforcement,” https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1079&context=cybaris]
Against this backdrop, GATT contracting parties’ multilateral trade meeting, known as the Uruguay Round negotiations in Uruguay, TRIPS was put on the table. Finally, “the TRIPS agreement was adopted in Marrakesh, Morocco in April, 1994.”3 Articles 7 and 8 of the agreement were adopted with minimal modifications from proposals submitted by developing and less developed countries.
2nc – Only PTO/CO Enforcement
‘Domestic’ IPR can only be enforced through the PTO or Copyright Office. Any other remedy, like the ITC or CBP, is ‘international.’
Purdy & Bailey ’23 [Purdy & Bailey, LLP; December 12; IP litigation firm; “Understanding Intellectual Property Rights for Businesses,” https://www.purdybailey.com/blog/2023/december/understanding-intellectual-property-rights-for-b/]
Intellectual properties provide the foundation for much of our modern economy. They relate to both creativity and commerce.
Intellectual property rights include patents, trademarks, copyrights, and trade secrets. They can promote innovation, and they help businesses protect valuable assets. Understanding these concepts and how they apply in different situations is critical for success, but the topic can be complex.
This article breaks down key aspects of intellectual property rights. This knowledge can help your business flourish in a highly competitive environment.
Definition of Intellectual Property Rights
Intellectual property rights (IPR) are legal rights granted to individuals or businesses. They give you ownership over ideas, characters, sound effects, logo designs, and much more. Put simply, IPR allows you to own and control creations that exist solely in the mind.
Intellectual property rights give the crea

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