Following on the
heels of an trade agreement between the European Union and South Korean, which
has seen exports from the EU to South Korea increase by 55% since 2012 along
with imports from South Korea to the EU increase by 53% over the same period[1],
Japan and the European Commission recently concluded years of negotiations and
presented what is more than likely to be the final version of the EU-Japan
Economic Partnership Agreement (EPA).
The EU-Japan EPA will enter
into effect no later than March 29, 2019. This trade agreement will further
open the Japanese and European Union markets to each other’s goods and services
while protecting standards that both regions wish to maintain. In this report,
we examine some of the major aspects addressed by this EPA and more
specifically, how Intellectual Property Rights will be affected thereby.
Together, the EU
and
From the start of
these negotiations, the EU has been keen on reducing or eliminating importation
tariffs (estimated to cost European companies approximately €1 billion per
year) imposed by Japan, as well as the costs for compliance with Japanese
regulations (especially with regards to the automotive industry) which often
differ from EU standards. The EU
has also hoped that the practice of not allowing foreign firms to bid on
construction or other government contracts can be eliminated in some cases.
European firms
believe that tariffs and other impediments to free trade cause prices of
products imported into
It
is estimated that this trade agreement will allow for an almost 200% increase
of processed foods to
This agreement
does not give a European company carte blanch to operate in Japan above the
laws and regulations which govern safety, worker health and rights,
environmental standards, working conditions, etc., in Japan. The same applies
to Japanese companies operating in the EU. Additionally, laws and regulations
regarding the environment and public safety and health will not be affected on
either side by this partnership agreement[5].
Most-favored nation
treatment is granted between the signatories for non-discriminatory protection
of another country’s intellectual property. Transparency with regards to the
manner and regulations through which intellectual property is administered in
each country is also deemed to be critical.
Intellectual
Property
The EPA describes
the manner in which intellectual property will be protected thereunder. First and foremost, intellectual
property is defined as in TRIPs, specifically Articles 7 and 8 and the EPA is
designed to comply with the Paris, Rome, Berne, and 1991 UPOV Conventions, the
WIPO Copyright Treaty, the Budapest Treaty governing the Deposit of
Microorganisms, the Madrid Agreement regarding Trademarks, and the Patent
Cooperation Treaty, among numerous other treaties and agreements.
While a large
part of the agreement focuses on copyright and artistry and the rights related
thereto (i.e., performances, phonograms, and broadcasting), we will mainly
cover the manner in which the agreement pertains to trademarks and patents.
I.
Trademarks
The FTA ensures
that trademarks held by Japanese firms will be protected from use in the EU by
third parties, etc., and vice versa, unless consent is granted by the registered
trademark owner. As with domestic trademark protections, the acts of the
manufacture, importation, and the presentation (also known as assignment or
offering) of items for which a registered trademark exists by an unlicensed
third party are deemed to be infringing acts.
Trademarks bearing
geographical indications, often referred to as well known “regional brands”,
specifically, but not limited to alcoholic beverages and agricultural products,
are also protected by this agreement as they would be protected domestically.
II.
Patents
The agreement
ensures that a patent owner (of a patent protecting a product or a process) is
protected against a third party lacking the consent of the patent owner from
making, selling, using, or importing for such purposes the product or the
product manufactured by the process.
The agreement
also provides for enhancing the utilization of search and examination results
between the EPO and the JPO, ostensibly to assist applicants in obtaining
results faster, promotes further patent law harmonization and recognizes the
importance of developing a unitary patent system in the future.
Additionally,
both the EU and
Note:
In late December 2018, the European Data Protection Board (EDPB) issued a declaration
that Japan had not succeeded in providing a framework which would ensure the
protection of personal data。 The EDPB stated that a third country which
might receive personal information from the Japanese side may have not been
previously assessed for their own data security measures by the EDPB. In
addition, as the system/redress means by which citizens of the EU may lodge
complaints against a Japanese entity is only available for those who understand
the Japanese language, it was deemed insufficient. Furthermore, while a system by which a
party may consent to the use and sharing of their personal information exists
on both the EU and the Japanese sides, the Japanese side has not clarified
whether or how the parties may opt-out of previously acknowledged consent to
share data.
Lastly, according
to an analysis by the EDPB, some of the mass surveillance protocols operated in
secret by the Japanese government (specifically, the Japanese Directorate for
Signals Intelligence) may be in conflict with the regulations specified in the
EPA.