What the EU and Japan trade talks mean for IP
The EU and Japan have announced that they will begin formally negotiating a free trade agreement (FTA), which lawyers say is likely to have important implications for IP.
Under the FTA, to be discussed in Brussels from April 15 to 19, the countries want to boost economic growth by removing tariffs and liberalising bi-lateral trade in goods, services and investment.
According to a statement released on Monday, the deal would increase Europe’s GDP by 0.6 to 0.8 percent and create 400,000 jobs, while EU exports to Japan would rise by 32.7 percent.
The EU and Japan have been holding informal talks for almost two years. Details of the final deal are unclear, but IP lawyers say an agreement is likely to contain a specific IP chapter.
“The EU and South Korea free trade agreement (signed in July 2011) had a detailed IP chapter, covering just about every aspect of IP,” said Trevor Cook, partner at Bird & Bird LLP.
“The deal covered all the areas mandated by TRIPs and included additional provisions. I would expect the Japan deal to be similar to this,” he added.
For a free trade agreement to work in practice, it is not strictly necessary for the EU and Japan to have reciprocal IP arrangements, said Akash Sachdeva, partner at Edwards Wildman Palmer LLP.
“Also, to a reasonable extent, IP issues are quite similar for TRIPs members (which both the EU and Japan are). There is a global impetus to have common IP rights, even though there will be individual idiosyncrasies.”
Once a deal is in place, EU businesses selling increasing numbers of goods to the Japanese market will want to ensure their IP is well-protected and they can adequately enforce it where appropriate.
“Japan has a robust IP system: both its patent and trademark frameworks are relatively sophisticated,” said Sachdeva.
Cook added: “The Japanese IP system is very sophisticated and has adapted to the needs of users. For example, it is now possible to deal with patent validity in the same proceeding as patent infringement: this is a response to users’ needs.”
Both lawyers said there is little litigation in Japan, mainly because there are few IP lawyers working there, but this would not stop EU rights owners litigating in Japan if they wanted to.
Cook said it is important to remember that the IP implications of this deal do not just affect the EU and Japan, but the rest of the world.
“In the EU and South Korea agreement, there are minimum protections that go over and above those in TRIPs, so there becomes pressure to apply these added provisions more generally. It’s all about IP norm-setting: building gently on top of TRIPs to increase protection even for parties that are not involved in this deal.”
Japan, which is the EU’s seventh largest trading partner worldwide, will begin trade talks with China and South Korea on March 26. The EU is also negotiating free trade agreements with India and Thailand.
