Nationals of countries outside the Union who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union shall be treated in the same manner as nationals of the countries of the Union.
165 Uso indireto é valer-se da Estátua da Liberdade por Estados Unidos, por exemplo.
166 Article 10 False Indications:Seizure, on Importation, etc., of Goods Bearing False Indications as to their Source or the Identity of the Producer
(1) The provisions of the preceding Article shall apply in cases of direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer, or merchant.
(2) Any producer, manufacturer, or merchant, whether a natural person or a legal entity, engaged in the production or manufacture of or trade in such goods and established either in the locality falsely indicated as the source, or in the region where such locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party.
Article 10bis Unfair Competition
(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.
(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.
(3) The following in particular shall be prohibited:
(i) all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;
(ii) false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;
(iii) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.
Article 10ter Marks, Trade Names, False Indications, Unfair Competition: Remedies, Right to Sue
(1) The countries of the Union undertake to assure to nationals of the other countries of the Union appropriate legal remedies effectively to repress all the acts referred to in Articles 9, 10, and 10bis.
(2) They undertake, further, to provide measures to permit federations and associations representing interested industrialists, producers, or merchants, provided that the existence of such federations and associations is not contrary to the laws of their countries, to take action in the courts or before the administrative authorities, with a view to the repression of the acts referred to in Articles 9, 10, and 10bis, in so far as the law of the country in which protection is claimed allows such action by federations and associations of that country.
A CUP deixa às leis internas de cada país a repressão à concorrência desleal o que está previsto no art. 10bis que por sua vez refere o art. 9 e o art. 10.
Article 9 Marks, Trade Names: Seizure, on Importation, etc., of Goods Unlawfully Bearing a Mark or Trade Name
(1) All goods unlawfully bearing a trademark or trade name shall be seized on importation into those countries of the Union where such mark or trade name is entitled to legal protection.
(2) Seizure shall likewise be effected in the country where the unlawful affixation occurred or in the country into which the goods were imported.(3) Seizure shall take place at the request of the public prosecutor, or any other competent authority, or any interested party, whether a natural person or a legal entity, in conformity with the domestic legislation of each country.
(4) The authorities shall not be bound to effect seizure of goods in transit.
(5) If the legislation of a country does not permit seizure on importation, seizure shall be replaced by prohibition of importation or by seizure inside the country.
(6) If the legislation of a country permits neither seizure on importation nor prohibition of importation nor seizure inside the country, then, until such time as the legislation is modified accordingly, these measures shall be replaced by the actions and remedies available in such cases to nationals under the law of such country.
167 Article 28 Disputes
(1) Any dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement. The country bringing the dispute before the Court shall inform the International Bureau; the International Bureau shall bring the matter to the attention of the other countries of the Union.
(2) Each country may, at the time it signs this Act or deposits its instrument of ratification or accession, declare that it does not consider itself bound by the provisions of paragraph (1). With regard to any dispute between such country and any other country of the Union, the provisions of paragraph (1) shall not apply.
(3) Any country having made a declaration in accordance with the provisions of paragraph (2) may, at any time, withdraw its declaration by notification addressed to the Director General.
168 Article 19 Special Agreements
It is understood that the countries of the Union reserve the right to make separately between themselves special agreements for the protection of industrial property, in so far as these agreements do not contravene the provisions of this Convention.
171 The 1891 Madrid Agreement Concerning the International Registration of Marks ou o Acordo de Madrid para o Registro Internacional de Marcas – outro Acordo - permite que IG’s sejam protegidas como Marcas Coletivas e como Marcas de Certificação desde que o sistema seja usado por países que não têm normas específicas para a proteção das IG’s e que as protejam através de regime de marca certificada. Em 15/01/2008 este acordo tem 81 Partes Contratantes entre as quais não se encontra o Brasil.
172 Em geral considera-se falso o que não corresponde ao fato que refere e enganosa/falaciosa/deceptiva a afirmação inexata com o objetivo de enganar/mistificar.
173 Article 1
(1) All goods bearing a false or deceptive indication by which one of the countries to which this Agreement applies, or a place situated therein, is directly or indirectly indicated as being the country or place of origin shall be seized on importation into any of the said countries.
(2) Seizure shall also be effected in the country where the false or deceptive indication of source has been applied, or into which the goods bearing the false or deceptive indication have been imported.
(3) If the laws of a country do not permit seizure upon importation, such seizure shall be replaced by prohibition of importation.
(4) If the laws of a country permit neither seizure upon importation nor prohibition of importation nor seizure within the country, then, until such time as the laws are modified accordingly, those measures shall be replaced by the actions and remedies available in such cases to nationals under the laws of such country.
(5) In the absence of any special sanctions ensuring the repression of false or deceptive indications of source, the sanctions provided by the corresponding provisions of the laws relating to marks or trade names shall be applicable.
(1) Seizure shall take place at the instance of the customs authorities, who shall immediately inform the interested party, whether an individual person or a legal entity, in order that such party may, if he so desires, take appropriate steps in connection with the seizure effected as a conservatory measure. However, the public prosecutor or any other competent authority may demand seizure either at the request of the injured party or ex officio; the procedure shall then follow its normal course.
(2) The authorities shall not be bound to effect seizure in the case of transit.
175(2) Any producer, manufacturer, or merchant, whether a natural person or a legal entity, engaged in the production or manufacture of or trade in such goods and established either in the locality falsely indicated as the source, or in the region where such locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party.
176 Article 3
These provisions shall not prevent the vendor from indicating his name or address upon goods coming from a country other than that in which the sale takes place; but in such case the address or the name must be accompanied by an exact indication in clear characters of the country or place of manufacture or production, or by some other indication sufficient to avoid any error as to the true source of the wares.
The countries to which this Agreement applies also undertake to prohibit the use, in connection with the sale or display or offering for sale of any goods, of all indications in the nature of publicity capable of deceiving the public as to the source of the goods, and appearing on signs, advertisements, invoices, wine lists, business letters or papers, or any other commercial communication.
The courts of each country shall decide what appellations, on account of their generic character, do not fall within the provisions of this Agreement, regional appellations concerning the source of products of the vine being, however, excluded from the reservation specified by this Article.
178 A expressão abrange ‘vinhos’ ou também ‘vinhos e seus derivados’? a maioria dos autores percebe que somente vinhos estão enquadrados; Ribeiro de Almeida discorda.
179 Mostarda de Dijon e Água de Colónia caíram em domínio público; mas há nomes – como Pilsner ou Pilsen – que ainda geram desacordos.
182 A proteção da DO no país de origem pode ser assegurada por lei, por regulamento, por disposição estatutária da associação criada para fiscalizar a DO e por decisões judiciais.
183 Article 1 [Establishment of a Special Union; Protection of Appellations of Origin Registered at the International Bureau]
(1) The countries to which this Agreement applies constitute a Special Union within the framework of the Union for the Protection of Industrial Property.
(2) They undertake to protect on their territories, in accordance with the terms of this Agreement, the appellations of origin of products of the other countries of the Special Union, recognized and protected as such in the country of origin and registered at the International Bureau of Intellectual Property (hereinafter designated as "the International Bureau" or "the Bureau") referred to in the Convention establishing the World Intellectual Property Organization (hereinafter designated as "the Organization").
184 Relembrando: O Vinho do Porto nasce e cresce no Douro, é elevado no Douro ou em Vila Nova de Gaia e exportado através do porto de Leixões. A cidade do Porto não tem conexão com o famoso vinho, portanto. Se teve, e grifamos o SE, foi há muito tempo atrás, antes de 1750, quando diz a lenda os ingleses iam ao porto da cidade do Porto buscar seu vinho, porto este de onde o vinho era ex-port-ado.
185 Brasil (1996).
186 Grifo nosso.
187 Article 3 [Content of Protection]
Protection shall be ensured against any usurpation or imitation, even if the true origin of the product is indicated or if the appellation is used in translated form or accompanied by terms such as "kind", "type", "make", "imitation", or the like.
Article 4 [Protection by virtue of Other Texts]
The provisions of this Agreement shall in no way exclude the protection already granted to appellations of origin in each of the countries of the Special Union by virtue of other international instruments, such as the Paris Convention of March 20, 1883, for the Protection of Industrial Property and its subsequent revisions, and the Madrid Agreement of April 14, 1891, for the Repression of False or Deceptive Indications of Source on Goods and its subsequent revisions, or by virtue of national legislation or court decisions.
188 Article 6
An appellation which has been granted protection in one of the countries of the Special Union pursuant to the procedure under Article 5 cannot, in that country, be deemed to have become generic, as long as it is protected as an appellation of origin in the country of origin.
190 Acordo sobre Aspectos dos Direitos de Propriedade Intelectual relacionados ao Comércio, aprovado, no Brasil, como parte integrante do Acordo de Marraqueche, pelo Decreto Legislativo no 30, de 15 de dezembro de 1994, e promulgado pelo Decreto no 1.355, de 30 de dezembro de 1994.
191 O artigo 1(3) da CUP já apregoava esta intenção: a propriedade industrial entende-se na mais ampla acepção e aplica-se não só à industria e ao comércio propriamente ditos, mas também às industrias agrícolas e extrativas e a todos os produtos ou naturais, por exemplo: vinhos, cereais, tabaco em folha, frutas, animais (sic), minérios, águas minerais, cervejas, flores, farinhas. O artigo 1(2) dizia: a proteção da propriedade industrial tem por objeto as patentes de invenção, os modelos de utilidade, os desenhos ou modelos industriais, as marcas de serviço, o nome comercial e as indicações de proveniência (sic) ou denominações de origem, bem como a repressão da concorrência desleal.
192 Grifo nosso.
193 “A definição do artigo 22/1 está longe da definição do Acordo de Lisboa, sendo muito mais simplificada e ampla”, é o dito de Ribeiro de Almeida (1999, p. 199). Aliás, como vimos, Lisboa privilegia a DO e não a IG esta sem qualquer menção anterior em Tratados, como remarcamos nós. Fica, todavia, a noção de IG do TRIPS como conceituação mais específica que a noção de IP do Acordo de Madrid.
194 Grifo nosso.
195 À doutrina tem sido difícil precisar o que seja exatamente os tais ‘fatores naturais e humanos’; o TRIPS fugindo da discussão aborda o tema pela ótica mais simples e genérica da ‘origem geográfica’.
2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:
(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;
(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).
3. A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.
4. The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.
197 O artigo 22.2. (b) fala da Ata de Estocolmo (1967) da CUP.
198 Article 23 Additional Protection for Geographical Indicationsfor Wines and Spirits
1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like.
2. The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member's legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.
3. In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
4. In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.
199 Lembremos que a nossa LPI permite, criando choque entre diplomas legais.
200 Article 24 International Negotiations; Exceptions
1. Members agree to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23. The provisions of paragraphs 4 through 8 below shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or multilateral agreements. In the context of such negotiations, Members shall be willing to consider the continued applicability of these provisions to individual geographical indications whose use was the subject of such negotiations.
2. The Council for TRIPS shall keep under review the application of the provisions of this Section; the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compliance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.
3. In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.
201 4. Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either (a) for at least 10 years preceding 15 April 1994 or (b) in good faith preceding that date.
202 5. measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:
(a) before the date of application of these provisions in that Member as defined in Part VI; or
(b) before the geographical indication is protected in its country of origin;
203 6. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.