Madrid Protocol

The Madrid system for the international registration of marks, also conveniently known as the Madrid System, is the primary international system for facilitating the registration of trademarks in multiple jurisdictions around the world.

The Madrid system provides a centrally administered system of obtaining a bundle of trademark registrations in separate jurisdictions. Registration through the Madrid system does not create an 'international' registration, as in the case of the European CTM system, rather it creates a bundle of national rights, able to be administered centrally, provided that the target jurisdiction is a party to the system.⁽¹⁾

The Madrid system is administered by the International Bureau of the World Intellectual Property Organisation (WIPO) in Geneva, Switzerland.

Madrid system offers a trademark owner the possibility to have his trademark protected in several countries by simply filing one application directly with his own national or regional trademark office

Members

As of 8 December 2010, there will be 85 members^[1] comprising the Madrid Union of jurisdictions which have become party to the Agreement or the Protocol or both.

The primary reason why the Protocol — which has been in operation since 2004 and has 78 members — is more popular than the Agreement — which has been in operation for more than 110 years and has 56 members^[2] — is that the Protocol introduced a number of changes to the Madrid system which significantly enhanced its usefulness to trademark owners.

Protocol versus Agreement:

Under the Protocol it is possible to obtain an international registration based on a pending trade mark application, so that a trade mark owner can effectively apply for international registration concurrently with or immediately after filing an application in a member jurisdiction. By comparison, the Agreement requires that the trade mark owner already holds an existing registration in a member jurisdiction, which may often take many months and sometimes years to obtain in the first place. In addition, the Agreement does not provide the option to ‘convert’ international registrations which have been ‘centrally attacked’

[edit]Advantages

The Madrid system provides a mechanism whereby a trademark owner who has an existing trademark application or registration (known as the 'basic application' or 'basic registration') in a member jurisdiction may obtain an ‘international registration’ for their trademark from the WIPO. The trademark owner may then extend the protection afforded to the international registration to one or more member jurisdictions, a process known as ‘designation’. A useful feature of the Madrid system is that this protection may generally be extended to additional jurisdictions at any time, such that international trade mark protection can be extended to new jurisdictions which subsequently join Madrid, or to such other jurisdictions as the trade mark owner may choose. In basic terms, the primary advantage of the Madrid system is that it allows a trademark owner to obtain trademark protection in any or all member states by filing one application in one jurisdiction with one set of fees, and make any changes (e.g. changes of name or address) and renew registration across all applicable jurisdictions through a single administrative process.

Filing these International applications can be accomplished without the appointment of a local agent in the designated countries. Thus, proceeding through the Protocol is much less expensive than filing nationally. These International rights are sought through the applicants’ home office using either the English or French language. A single filing fee is payable in the applicant’s home currency

[edit]Disadvantages

One disadvantage of the Madrid system is that any refusal, withdrawal or cancellation of the basic application or basic registration within five years of the registration date of the international registration will lead to the refusal, withdrawal or cancellation of the international registration to the same extent. For example, if a basic application covers 'clothing, headgear and footwear', and 'headgear' is then deleted from the basic application (for whatever reason), 'headgear' will also be deleted from the international application. Therefore, the protection afforded by the international registration in each designated member jurisdiction will only extend to 'clothing and footwear'. If the basic application is rejected as a whole, the international registration would also be totally refused.

The process of attacking the basic application or basic registration for this purpose is generally known as ‘central attack’.

Under the Madrid Protocol, the effects of a successful central attack can be mitigated by transforming the international registration into a series of applications in each jurisdiction designated by the international registration, a process known as ‘transformation’. Although transformation is an expensive option of last resort, the resulting applications will receive the registration date of the international registration as their filing date.

In 1997, less than half of a percent of international registrations were canceled as a result of central attack^[3].

The costs savings which usually result from using the Madrid system may be negated by the requirement to use local agents in the applicable jurisdiction if any problems arise.

Kyoto Protocol

Kyoto Protocol

The Kyoto Protocol is a protocol to the United Nations Framework Convention on Climate Change (UNFCCC or FCCC), aimed at fighting global warming. The UNFCCC is an international environmental treaty with the goal of achieving "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The Protocol was initially adopted on 11 December 1997 in Kyoto, Japan and entered into force on 16 February 2005. As of July 2010, 191 states have signed and ratified the protocol.

Under the Protocol:

(i) 37 countries ("Annex I countries") commit themselves to a reduction of four greenhouse gases (GHG) (carbon dioxide, methane, nitrous oxide, sulphur hexafluoride) and two groups of gases (hydrofluorocarbons and perfluorocarbons) produced by them, Annex I countries agreed to reduce their collective greenhouse gas emissions by 5.2% from the 1991 level. Emission limits do not include emissions by international aviation and shipping, but are in addition to the industrial gases,chlorofluorocarbons, or CFCs, which are dealt with under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.

(ii) All member countries give general commitments.

The five principal concepts of the Kyoto Protocol are:

§ Legally binding commitments for Annex I countries. Only the Annex I countries in 1997, were seen as having the economic capacity to commit themselves and their industry were made to commit to the protocols limitations.

§ Implementation: In order to meet the objectives of the Protocol, Annex I countries are required to prepare policies and measures for the reduction of greenhouse gases in their respective countries. In addition, they are required to increase the absorption of these gases and utilize all mechanisms available, such as joint implementation, the clean development mechanism and emissions trading, in order to be rewarded with credits that would allow more greenhouse gas emissions at home.

§ Minimizing Impacts on Developing Countries by establishing an adaptation fund for climate change.

§ Accounting, Reporting and Review in order to ensure the integrity of the Protocol.

§ Compliance: Establishing a Compliance Committee to enforce compliance with the commitments under the Protocol.

Flexible mechanisms

§ The Protocol defines three "flexibility mechanisms" that can be used by Annex I countries in meeting their emission reduction commitments:

(i) International Emissions Trading (IET)

(ii) Clean Development Mechanism (CDM)

(iii) Joint Implementation (JI)

§ IET allows Annex I countries to "trade" their emissions (Assigned Amount Units, AAUs, or "allowances" for short). For IET, the economic basis for providing this flexibility is that the marginal cost of emission abatement differs among countries. Trade could potentially allow the Annex I countries to meet their emission reduction commitments at a reduced cost. This is because trade allows emissions to be abated first in countries where the costs of abatement are lowest, thus increasing the efficiency of the Kyoto agreement.

§ The CDM and JI are called "project-based mechanisms," in that they generate emission reductions from projects. The difference between IET and the project-based mechanisms is that IET is based on the setting of a quantitative restriction of emissions, while the CDM and JI are based on the idea of "production" of emission reductions. The CDM is designed to encourage production of emission reductions in non-Annex I countries, while JI encourages production of emission reductions in Annex I countries.

§ The production of emission reductions generated by the CDM and JI can be used by Annex B countries in meeting their emission reduction commitments. The emission reductions produced by the CDM and JI are both measured against a hypothetical baseline of emissions that would have occurred in the absence of a particular emission reduction project. The emission reductions produced by the CDM are called Certified Emission Reductions (CERs); reductions produced by JI are called Emission Reduction Units (ERUs). The reductions are called "credits" because they are emission reductions credited against a hypothetical baseline of emissions.

Principle of UNFCC:

UNFCCC adopts a principle of "Common but differentiated responsibilities". The parties agreed that:

1. The largest share of historical and current global emissions of greenhouse gases originated in developed countries;

2. Per capita emissions in developing countries are still relatively low;

3. The share of global emissions originating in developing countries will grow to meet social and development needs.

Enforcement:

If the enforcement branch determines that an annex I country is not in compliance with its emissions limitation, then that country is required to make up the difference plus an additional 30%. In addition, that country will be suspended from making transfers under an emissions trading program.

Base Year:

The choice of the 1990 main base year remains in Kyoto, as it does in the original Framework Convention. The desire to move to historical emissions was rejected on the basis that good data was not available prior to 1990. The 1990 base year also favoured several powerful interests including the UK, Germany and Russia. This is because the UK and Germany had high CO₂ emissions in 1990. In the UK following 1990, emissions had declined because of a switch from coal to gas ("dash for gas"), which has lower emissions than coal. This was due to the UK's privatization of coal mining and its switch to natural gas supported by North Sea reserves. Germany benefitted from the 1990 base year because of its reunification between West and East Germany. East Germany's emissions fell dramatically following the collapse of East German industry after the fall of the Berlin Wall. Germany could therefore take credit for the resultant decline in emissions

Parties to UNFCCC are classified as:

§ Annex I countries – industrialized countries and economies in transition

§ Annex II countries – developed countries which pay for costs of developing countries

§ Developing countries.

Annex I countries which have ratified the Protocol have committed to reduce their emission levels of greenhouse gasses to targets that are mainly set below their 1990 levels. They may do this by allocating reduced annual allowances to the major operators within their borders. These operators can only exceed their allocations if they buy emission allowances, or offset their excesses through a mechanism that is agreed by all the parties to UNFCCC.

Annex II countries are a sub-group of the Annex I countries. They comprise the OECD members, excluding those that were economies in transition in 1992.

Developing countries are not required to reduce emission levels unless developed countries supply enough funding and technology. Setting no immediate restrictions under UNFCCC serves three purposes:

§ it avoids restrictions on their development, because emissions are strongly linked to industrial capacity

§ they can sell emissions credits to nations whose operators have difficulty meeting their emissions targets

§ they get money and technologies for low-carbon investments from Annex II countries.