Charlier, Christophe --- "Mandatory Regulation versus Discretionary Regulation, Unilateralism, and National Treatment: An Analysis of the United States – Section 211 Omnibus Appropriations Act of 1998 Dispute" [2010] ELECD 567; in Correa, M. Carlos (ed), "Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801072

Section: Chapter 10

Section Title: Mandatory Regulation versus Discretionary Regulation, Unilateralism, and National Treatment: An Analysis of the United States – Section 211 Omnibus Appropriations Act of 1998 Dispute

Author(s): Charlier, Christophe

Number of pages: 16

Extract:

10 Mandatory regulation versus
discretionary regulation, unilateralism,
and national treatment: an analysis of
the United States ­ Section 211
Omnibus Appropriations Act of 1998
dispute
Christophe Charlier


The US ­ Section 211 Appropriations Act dispute1 arbitrated by the
Dispute Settlement Body (DSB) of the World Trade Organization (WTO)
was raised by Section 211 of the United States Omnibus Appropriations
Act of 1998 (Section 211). It opposed the European Communities (EC)
as complainant to the United States (US) as defendant. Section 211 deals
with trademarks and commercial names that are identical or similar to
trademarks and commercial names that were used in connection with a
business or assets that were confiscated by the Cuban Government on
or after 1 January 1959. The EC alleges that Section 211 is incompatible
with certain dispositions of the Agreement on Trade-related Aspects of
Intellectual Property Rights (the TRIPS Agreement), as read in conjunc-
tion with the relevant provisions of the Paris Convention for the Protection
of Industrial Property (the Paris Convention (1967)).
All transactions, involving goods under US jurisdiction in which a
Cuban national has an interest, require a licence from the Office of Foreign
Assets Control (OFAC). OFAC is an agency of the US Department of the
Treasury in charge of the Cuban Assets Control Regulations (CACR).
This specific regulation on the control of Cuban assets was set out in the
Code of Federal Regulations (CFR) in 1963 under the Trading with the
Enemy Act of 1917.
Section 211 has the effect of modifying dispositions ...