December 14, 2000

William O.Hennessey


This is a two-hour examination. (3 hours for non-native English speakers)  Students are allowed to bring any materials they wish into the examination.  Students are not allowed to discuss the questions with one another or ask assistance of one another during the examination.  Nor should students "comment" or otherwise communicate with one another on the questions at any time during the examination.  Answers should be written in an exam booklet.  Do not put your name or any other identifying device on your exam booklet -- just your exam number.  Do not write “MIP,” “2L”, or “Class of ‘02” etc. on the booklet.  You should keep your answers BRIEF AND TO THE POINT, but there are no page limitations  Write on one side of a bluebook page only.

Select three (3) of the following five (5) questions (40 minutes for each question):

1. To what extent are Sections 301-306 of the Trade Act of 1974 (19 U.S.C. §§2411-2416) consistent with the obligations of the United States under the World Trade Organization’s Dispute Settlement Understanding (1994)?  Please provide the reasons for your answer.

2.  The United States enacted the Fairness in Music Licensing Act of 1992, which added Section 110(5)(B) to the U.S. Copyright Act (17 U.S.C. §110(5)).  A panel of the World Trade Organization (p. 434) found this provision to violate the obligations of the United States under the TRIPs Agreement.  What does the U.S. have to do to comply?   If the U.S. merely rescinds the 1998 amendment and returns to the version of Section 110 which existed prior to 1998, will it then be in compliance with its TRIPs obligations?  Please explain your answer.

3.  An insurance policy can be thought of as a form of protection against risk of harm.  As has been discussed (in the readings on p. 500 and in class), the Berne Convention is sometimes viewed as “the insurance policy of copyright.” Please explain how the Berne Convention has performed such a role and discuss the risks, rewards, and costs which face member states which participate in the Convention.

4.  In the facts of the 1990 Person’s case (p.178) , the TTAB found (and the CAFC accepted the finding) that “when Christman initiated use of the mark, Person’s Co. had not yet entered U.S. commerce.  The Person’s Co. had no goodwill in the United States and the “PERSON’S” mark had no reputation here.” Please explain in detail how that factual finding was significant to the outcome of the case.  Does the finding comport with Article 6bis of the Paris Convention? Should the language of Article 16.2 TRIPs, which states: “In determining whether a trademark is well-known, account shall be taken of the knowledge of the trademark in the relevant sector of the public…” provide any additional protection for trademark owners such as Person’s Co. not found in Article 6bis of the Paris Convention?  Please explain your answer.

5.  Article 30 TRIPs states: “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions …do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.” (emphasis added)  In theWTO case of “Canada@Patent Protection of Pharmaceutical Products”, the panel makes a distinction in its findings between the “legal interests,” “legitimate interests,” and “normative interests” of the European Communities in the subject matter of the case.   Explain how the different of “interests” are addressed by the panel decision under Article 30 TRIPs.

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