[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3372 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 3372

   To improve and promote compliance with international intellectual 
property obligations and to defend United States intellectual property 
 interests from suspension of benefits abroad, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 21, 2005

Mr. Flake (for himself and Mr. Delahunt) introduced the following bill; 
 which was referred to the Committee on the Judiciary, and in addition 
  to the Committee on Ways and Means, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
   To improve and promote compliance with international intellectual 
property obligations and to defend United States intellectual property 
 interests from suspension of benefits abroad, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``United States Trademark Defense Act 
of 2005''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) Trademarks and trade names are vital assets of the many 
        United States businesses that engage in international trade.
            (2) Worldwide sales of branded products of United States 
        businesses contribute in important ways to the livelihood of 
        American workers and the well-being and continued healthy 
        growth of numerous United States businesses. These sales 
        depend, in turn, on the protection that other countries afford 
        to the trademarks and trade names of United States businesses 
        under treaties and international agreements.
            (3) Among such treaties and agreements are the Agreement on 
        Trade-Related Aspects of Intellectual Property Rights (TRIPS) 
        of the World Trade Organization (WTO), the Paris Convention for 
        the Protection of Industrial Property, and the General Inter-
        American Convention for Trade Mark and Commercial Protection.
            (4) The United States should ensure that the trademark and 
        trade names of United States businesses continue to be 
        protected abroad by working to ensure that other countries 
        comply with their obligations under intellectual property 
        rights treaties and agreements. At the same time, the United 
        States should adhere to its obligations under such treaties and 
        agreements.
            (5) Hundreds of United States businesses have registered 
        their trademarks in Cuba in order to ensure the exclusive right 
        to use those trademarks when the United States trade embargo on 
        that country is lifted. Indeed, following the enactment of the 
        Trade Sanctions Reform and Export Enhancement Act of 2000, many 
        United States businesses are already exporting branded food 
        products to Cuba.
            (6) The United States District Court for the Southern 
        District of New York ruled that section 211 of the Department 
        of Commerce and Related Agencies Appropriations Act, 1999 (as 
        contained in section 101(b) of division A of Public Law 105-
        277; 112 Stat. 2681-88) abrogates, with respect to Cuba, the 
        General Inter-American Convention on Trade Mark and Commercial 
        Protection. The District Court's ruling was affirmed by the 
        United States Court of Appeals for the Second Circuit.
            (7) Cuba's international remedy under customary 
        international law, as codified by Article 60 of the 1969 Vienna 
        Convention on Treaties, for a breach by the United States of 
        the General Inter-American Convention on Trade Mark and 
        Commercial Protection, is to suspend or revoke the protections 
        Cuba currently affords United States trademarks and trade 
        names.
            (8) Since 1996, hundreds of United States businesses have 
        registered over 50,000 European Community trademarks, and 
        thousands of trademark registrations in individual European 
        Union member states, in order to ensure the exclusive right to 
        use their trademarks in the territory of the European Union.
            (9) The World Trade Organization upheld a challenge by the 
        European Community and ruled that section 211 of the Department 
        of Commerce and Related Agencies Appropriations Act, 1999, is 
        inconsistent with the obligations of the United States under 
        the Agreement on Trade-Related Aspects of Intellectual Property 
        Rights, including provisions of the Paris Convention for the 
        Protection of Industrial Property.
            (10) If the United States fails to bring its law into 
        conformity with the WTO ruling, the remedy of the European 
        Community, as provided by the Dispute Settlement Understanding 
        of the World Trade Organization, is compensation and the 
        suspension of concessions or other obligations that the 
        European Community and its member states currently afford to 
        intellectual property and other trade interests of the United 
        States and its citizens.
            (11) In order to preserve the rights of United States 
        nationals holding trademarks and trade names in Cuba, in the 
        European Union and its members states, and in other countries, 
        the United States must repeal section 211 of the Department of 
        Commerce and Related Agencies Appropriations Act, 1999, and 
        should take the necessary steps to promote the long-term 
        protection of trademarks, trade names, and domain names held by 
        United States nationals in that country.
            (12) Since long prior to the enactment of section 211 of 
        the Department of Commerce and Related Agencies Appropriations 
        Act, 1999, it has been the practice of the Federal courts to 
        provide equity in adjudicating disputes involving the Untied 
        States trademark rights of foreign nationals whose businesses 
        at home have been confiscated by their governments.
            (13) Therefore, section 211 of the Department of Commerce 
        and Related Agencies Appropriations Act, 1999, is not necessary 
        for the courts to reach equitable results with respect to the 
        trademark and trade name rights of foreign nationals who have 
        suffered from confiscation of their businesses at home, and 
        that the repeal of such section will return to the courts the 
        full authority to give due consideration to all the relevant 
        issues, both legal and equitable, with respect to such 
        trademarks and trade names.
    (b) Purpose.--The purpose of this Act is to improve and promote 
compliance with international intellectual property obligations and to 
defend United States intellectual property interests from suspension of 
benefits abroad, including in the European Community and its member 
states, Cuba, and in signatories of the General Inter-American 
Convention for Trade Mark and Commercial Protection and the Agreement 
on Trade-Related Aspects of Intellectual Property Rights.

SEC. 3. ADHERENCE TO INTERNATIONAL AGREEMENTS AND UNDERSTANDINGS.

    (a) Repeal.--Section 211 of the Department of Commerce and Related 
Agencies Appropriations Act, 1999 (as contained in section 101(b) of 
division A of Public Law 105-277; 112 Stat. 2681-88) is repealed.
    (b) Regulations.--Not later than 30 days after the date of the 
enactment of this Act, the Secretary of the Treasury shall issue such 
regulations as are necessary to carry out the repeal made by subsection 
(a), including removing any prohibition on transactions or payments to 
which subsection (a)(1) of section 211 of the Department of Commerce 
and Related Agencies Appropriations Act, 1999 applied.

SEC. 4. AUTHORITY OF COURTS.

    United States courts shall have the authority to recognize, 
enforce, or otherwise validate an assertion of rights in any mark or 
trade name based on common law rights or registration or under any 
applicable provision of law or any applicable treaty to which the 
United States is a party.

SEC. 5. PROTECTION OF UNITED STATES INTELLECTUAL PROPERTY RIGHTS.

    (a) Estimates of Barriers to Market Access.--For purposes of 
preparing the report required by section 181 of the Trade Act of 1974 
(19 U.S.C. 2241) for calendar year 2005, the United States Trade 
Representative shall examine the policies and practices of Cuba with 
respect to protecting and enforcing intellectual property rights.
    (b) Identification of Countries That Deny Adequate Protection, or 
Market Access, for Intellectual Property Rights.--For purposes of 
meeting the requirements of section 182 of the Trade Act of 1974 (22 
U.S.C. 2242) with respect to the report required by section 181 of such 
Act for calendar year 2005, the United States Trade Representative 
shall give due consideration to the findings of the Trade 
Representative pursuant to subsection (a).
                                 <all>