Intellectual Property in the WTO Volume II
Edited by Carlos M. Correa
Chapter 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 conjunction 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 of the CACR (Section 515 of Title 31 CFR). Before it came into force, a general licence was available under the CACR for the registration and...
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