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Enforcing the WTO rulings on trade marks and trade names in Havana Club

Matthew Kennedy

Keywords: trade marks; trade names; WTO; TRIPS; Paris Convention; DSU; retaliation

The WTO decided in 2002 that a provision of US law blocking enforcement of rights to the Havana Club rum trade mark and trade name was inconsistent with the TRIPS Agreement. Even though the WTO's rulings remain unimplemented today, the European Union has never requested a remedy to enforce them. The difficulties in enforcing the rulings cannot simply be explained by the US embargo on trade with Cuba. Rather, the rulings were based on hypothetical scenarios and a category of intellectual property right (trade name protection) that is not covered by the WTO rules on retaliation. In these circumstances, the WTO dispute settlement rules are not designed to provide an effective inducement to compliance. The problematic rulings were all introduced on appeal and expose operational problems in the Dispute Settlement Understanding (DSU) procedures as applied to TRIPS.

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