Cross border trade refers to trading of goods and services between two commercial entities or consumers and commercial entities across state borders. This gives consumers a huge range of commodities to choose from and provides commercial entities with a plethora of opportunities and new markets to exploit. Cross border trading and outsourcing to meet necessary requirements has been an important part of civilizations since the inception of the barter system. The motivations of cross border trade and expansion of markets lies at the very foundation of international relations. While cross border trade is not new by any means, the role that it plays today in markets across the globe is unprecedented. This is a boon of modern technology and the internet marketplace.
It is estimated that by 2022, cross border shopping will take up about one-fifth of the e-commerce space along with sales recording a whopping 627 billion dollars. The Indian market, ranked ninth in cross-border growth, is showing growth projections of upto 4% of the total retail trade by 2025.
While the scope for profit and promotion has increased manifold with the popularization of cross border trading, additionally has spiked the risk of infringement of Intellectual Property Rights (IPR), duplication and counterfeit of the products.
The protection of intellectual property on a global scale can be a complex issue, a tight rope to walk while balancing national autonomy at the same time as to drive further into global existing markets. The risk of IPR infringement exists at multiple areas in the transit of goods. The many working aspects of the supply chains further complicate the issue.
Protection for IPR exists at various levels, internationally which simply implies that the said protection of property extends across numerous regions and nationally. The World Intellectual Property Organization (WIPO) founded in 1967 is the foremost intergovernmental organization working towards ensuring protection of intellectual property rights across borders. International conventions such as the Paris Convention and the Hague Agreement for Industrial property and designs, and the Madrid Agreement regarding deceptive indication and false goods date back to the 19th century, India is party to most of these agreements except The Hague Agreement. However, the protection these treaties offer extends only to the territories of member countries; this magnifies the risks that exist in the countries that are not signatories to the treaty. Though this protection includes goods being exported, imported and also those in transit i.e only passing through these member states, it is not adequate.
While international conventions grant rights, aid in easing the application procedure across member states and in some cases even outline procedural aspects they do not provide for mechanisms to enforce these rights. Territorial or national enforcements of these rights leave space for multiple interpretations, some of which can be unjust and ill motivated. This also happens due to IP rights registered and enforced in bad faith, as is the case with Chinese patents, copyrights and designs.
In recent times ecommerce giants such as Amazon and popular clothing sites like Shein have faced slander for copying designs from small time designers, a piece of clothing designed in interior North America might very well gain immense popularity in cities far away without the designers ever getting any deserved (or even legal) recognition. This speaks to the potential and scope of IPR infringements and the impact it carries.
As of today six BIPOC have been awarded copyrights, for choreographies they created that went viral during the first set of lockdowns imposed world-wide and are highly used and recognised amongst young adults. These copyrights now ensure credit is given to them in case these are used in games or movies. Though considering the multiple languages and regions that produce cinema and e-games the scope of infringement is wide and questions of justness and ease of the process of redressal in such cases arise. This copyright in a global sense would be granted under the WIPO Performances and Phonograms Treaty of 1996, the issue of justice in case of violation remains open ended so far.
The latin maxim Ubi jus ibi remedium est used in various areas of law, including contract law, supports the idea that the existence of right also implies the need for a remedy, rights that are not justiciable are no rights at all. Like most practices of international law, the conventions and agreements under the WIPO and IPR protection purview is not by nature applied in its whole essence, the application and adoption lie with the member states as sovereignty of nations is priority.
But sovereignty cannot take precedence in the face of blatant violation of rights of individuals. It is also important to note that WIPO does have an Arbitration and Mediation Center, traditional methods of recourse and redress are still lacking.
Simply put, there is a need for an intergovernmental organisation, a neutral adjudicator. This could be in the form of an appellate dispute resolution body on an international level, exercising the powers of review and recall, or in terms of separate councils for different continents consisting of members elected by various states exercising the powers of regulation.
While many approaches can be thought of, to solve this problem, the root of all such approaches must be with the intention of maximum utility and enforcement of all intellectual property rights across the world.
Author: Vaishnavi Srinivas of RV Institute of Legal Studies
Contact us at info@origiin.com to avail services in Patent, Trademark, Contracts, Patent Licensing, M&A
Subscribe to our YouTube Channel HERE
Email: info@origiin.com
Whatsapp: +91 7483806607
