2)
The substantive patent law : a heterogeneous level of protection
Obtaining a legal protection on a patent is a lure if, in
practice, it is not possible to make it respect. However much of companies
question the effectiveness of protection when it is a question of making cease
and of repressing the counterfeit, in particular in certain countries of
Asia.
From this point of view, the rules of patent rights in Europe
are considered to be inadequate, even dissuasive, by many companies. Their
evolution is necessary so that strategic projects can be constant. Indeed, the
patent is par excellence the tool for protection of the technological
innovation, and undoubtedly that which France and its companies use the least
best.
In order to facilitate the diffusion and the access to
information, a project of world network of information, baptized WIPOnet, was
lately approved by the Member States of OMPI. The goal of this initiative is to
create data bases of quality, being able to be put on the network in full
safety by the means of numerical libraries making it possible to extract from
the data relating to the international requests of patent published. It is then
planned to proceed to the electronic deposit of the international requests for
patent, thus making it possible to lower the cost of the deposit. With the
European scale, the European Organization of the patents places at the disposal
nearly 30 million documents to patents published in the 19 Member States, in
order to promote the innovation in the European companies.
At the national level, an adaptation of the legal system
appears necessary. It is in particular necessary to examine the possibilities
of revaluing the damages granted to the victims of the counterfeit. Indeed, in
France, the allowances are founded on the repair of the damage undergone by
patented and not, as in the United States, on the confiscation of the illicit
benefit carried out by the counterfeiter. It is thus advisable to engage a
reflection on this topic, in order to make the sanctions more dissuasive.
To the United States, creation in 1982 of a single Court of
Appeal at the federal level for the patents and the tripling of the financial
sanctions inflicted to the «deliberated and conscious» counterfeiter
contributed much to return confidence in the patent and to develop its use.
3)
Conflicts of national laws and legal statuses as regards domain names.
· A conflict of legal statuses
The coexistence of the various procedures of recording of
domain name was the occasion of important conflicts between companies, because
of the use by thirds of their mark without preliminary authorization. Thus,
certain companies were seen refusing the use of their own mark for their
personal site. They were obliged to negotiate important financial transactions
in order to be able to employ their mark, recorded before in Internic under the
suffix « .com ». Thus, after the repurchase of DIGITAL and
its search engine called AltaVista, Compacq had to pay 3 million dollars at the
English company Alta Vista Corporation. This possibility of substantial profits
explains why companies specialized but also in the private individuals, deposit
domain names by pure gamble. This hacking is made possible by the existing gap
between the trade-mark law and the right of telecommunications. The rule in the
field of Telecommunications and applied by Internic, is that of
« arrived first, first owner », whereas the trade-mark law
is founded on the principle of speciality. That means that mark is deposited
and protected to indicate the products or services aimed at its recording.
March 12, 1998, the Court of Bankruptcy of Paris considered,
in this kind of business, that to recognize the thesis of « arrived
first, been useful first » is incontestably prejudicial at the oldest
company, which is thus dispossessed on Internet of the company name which
individualizes it in the whole of its existence and its activities, whereas it
enjoys a true right of ownership on this one.
· A conflict of national laws
The great diversity of the practices in the management of the
various domain names (that it is on the level of the nature of the organization
responsible for management, of the protection of the trade-mark law, of the
conditions of recording of the domain names) is at the origin of conflicts at
the international level.
Following the increase in this type of
conflicts, the NSI worked out a charter on September 9, 1996, of which the goal
is to envisage modes of payment of the litigations concerning the domain names.
It envisages the possibility for the holder of a mark, to lodg a complaint with
the NSI, when he is noted the recording by a third of a domain name comparable
with this trade mark. The NSI will send a setting then remains about it with
the depositor of the litigious name, forcing it to provide in the thirty days a
document in proof showing its titularity on its mark. If the organization or
the company in question does not manage to be justified, the NSI will require
of him to give up the domain name. In the event of refusal, the litigious
domain name will be put on standby and none the parts will be able to use it
until they find an area of agreement or which a judge sliced the business.
A French company could profit from such a procedure, in the
possibility or a foreign firm records a name similar to its mark within the
zone « .com ». However, the device is likely to be weighed
down, since one will need either diligenter a procedure in the State of the
contravening company, or to obtain the recognition of the French jurisdictional
decision in front of the foreign court.
On the level of the zone « .fr », the
control carried out by N.I.C-France makes it possible to eliminate the cases of
fraud manifest. The recording as domain name of the company name of a
concurrent company will be impossible. Let us recall that under the terms of
the L711-4 article of the Code of the intellectual property, it is interdict to
adopt a sign or a mark, if there is a risk of confusion with a company name or
a sign already known on the territory.
However, of the conflicts can occur between similar marks
indicating of the different products, but which wish to use the same domain
name on the network. This is why, a company eager to record the name of its Web
site will may find it very beneficial to deposit the corresponding mark
simultaneously. It seems indeed that in the event of litigation, a trade mark
will be more easily taken into account by a court or the N.S.I, rather than a
simple commercial name.
As for the holders of French marks, wishing an international
extension, they will have to address a request to the I.N.P.I which will be
transmitted to the O.M.P.I. It is however necessary to recall, that the
Anglo-Saxon countries and in particular the United States, do not adhere to the
treaties managed by the O.M.P.I.
Lastly, the Convention of the Union of Paris of March 20,
1883, where this time adheres the United States, installed a mechanism of
priority, authorizing the depositor of a national recording, to proceed to
deposits in the other Member States, within six month.
It is noted that the current system of management of the
domain names on Internet will not be able to satisfy a long time all the
holders of marks, or entities eager to protect their company name.
« The creation of a really international authority becomes a
need, One can imagine a structure depending on OMC in order to regulate this
kind of problems » estimates Pierre Reboul, president of
Electronic Business Group.
Conclusion :
The various problems of application which have been just
mentioned can nevertheless be solved, at least partly. Largest of the
difficulties resides in the transborder character of Internet vis-a-vis the
parcelling out of the legislations. Several solutions are to be considered,
that they are of a nature techniques (cryptography), legal, political
(international co-operations) or economic (self-regulation).
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