[Federal Register Volume 65, Number 223 (Friday, November 17, 2000)]
[Notices]
[Pages 69599-69600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29482]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. WTO/DS-176]


WTO Dispute Settlement Proceeding Regardin United States of 
America--Section 211 of the Department of Commerce Appropriations Act, 
1999

AGENCY: Office of the United States Trade Representative.

ACTION: Notice; request for comments.

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SUMMARY: The Office of the United States Trade Representative 
(``USTR'') is providing notice of the establishment and composition of 
a dispute settlement panel under the Marrakesh Agreement Establishing 
the World Trade Organization (``WTO'') requested by the European 
Communities and their Member States (the ``EC''). The EC has asked that 
the panel examine whether section 211 of the ``Omnibus Appropriations 
Act of 1998'' [sic] is consistent with U.S. obligations under the WTO 
Agreement on Trade-Related Aspects of Intellectual Property Rights 
(``TRIPs Agreement''). The statutory provision to which the EC refers 
is section 211 of the Department of Commerce Appropriations Act, 1999, 
as included in Pub. L. 105-277 (``Section 211''). Section 211 concerns 
the registration or enforcement, by Cuban entities or their successors 
in interest, of trademarks, trade-names, or commercial names that are 
substantially similar to trademarks, trade-names, or commercial names 
associated with businesses confiscated without compensation by the 
Cuban government, without the consent of the previous owners of the 
trademarks, trade-names or commercial names.

DATES: Although USTR will accept any comments received during the 
course of the dispute settlement proceedings, comments should be 
submitted by November 28, 2000, to be assured of timely consideration 
by USTR.

ADDRESSES: Comments may be submitted to Sandy McKinzy, Litigation 
Assistant, Office of Monitoring and Enforcement, Room 122, Att: Section 
211, Office of the United States Trade Representative, 600 17th Street, 
NW., Washington, D.C., 20508.

FOR FURTHER INFORMATION CONTACT: L. Daniel Mullaney, Associate General 
Counsel, at (202) 395-3581.

SUPPLEMENTARY INFORMATION: Pursuant to section 127(b) of the Uruguay 
Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)), USTR is providing 
notice that, on October 26, 2000, the WTO Director-General appointed 
the following persons to serve as panelists

[[Page 69600]]

in this dispute: H.E. Mr. Wade Armstrong, Chairman; Mr. Francois 
Dessemontet, Member; and Mr. Armand de Mestral, Member. This 
appointment was made pursuant to Article 8.7 of the WTO Dispute 
Settlement Understanding. Under normal circumstances, the panel, which 
will hold its meetings in Geneva, Switzerland, is expected to issue a 
report detailing its findings and recommendations within six to nine 
months after it is established. USTR solicited comments from the public 
on the issues in this dispute in a Federal Register notice dated August 
1, 2000 (65 FR 46999); those comments are on file at USTR and need not 
be resubmitted in reponse to this notice.

Major Issues Raised and Legal Basis of the Complaint

    In is request for the establishment of a panel, the EC alleges that 
three substantive provisions of section 211 are inconsistent with the 
TRIPs Agreement:
    1. The EC alleges that Section 211(a)(1) limits the right to 
register or renew trademarks, trade-names or commercial names at the 
United States Patent and Trademark Office, in violation of TRIPs 
Article 2.1, in conjunction with Article 6 quinquies A(1) of the Paris 
Convention for the Protection of Industrial Property (1967) (``Paris 
Convention''), and TRIPs Article 15.1. The EC alleges that Section 
211(a)(1) does this by, in the case of trademarks, trade-names and 
commercial names that are substantially similar to trademarks, trade-
names, or commercial names associated with businesses confiscated 
without compensation by the Cuban government, requiring the consent of 
the original owner or his successor-in-interest of the trademark, 
trade-name, or commercial name.
    2. The EC alleges that Section 211(a)(2)--by providing that U.S. 
courts shall not recognize, enforce, or otherwise validate common law 
or registration rights asserted by designated nationals or their 
successors in interest in trademarks, trade-names and commercial names 
that are substantially similar to trademarks, trade-names, or 
commercial names associated with businesses confiscated without 
compensation by the Cuban government--violates TRIPs Art. 2.1, in 
conjunction with Articles 6 bis (1) and 8 of the Paris Convention, and 
TRIPs Article 16.1 (which require WTO Members to provide protection for 
well-known trademarks and for trade names). The EC also alleges that 
Section 211(a)(2) violates the TRIPs enforcement provisions, such as 
TRIPs Article 42, and the most favored nation and national treatment 
provisions of the TRIPs Agreement (TRIPs Articles 3.1, 2.1 (in 
conjunction with Article 2(1) of the Paris Convention), and 4).
    3. Finally, the EC allegs that Section 211(b)--by providing that 
U.S. courts shall not recognize, enforce, or otherwise validate treaty 
rights asserted by designated nations or their successors in interest 
in trademarks, trade-names and commercial names that are substantially 
similar to trademarks, trade-names, or commercial names associated with 
businesses confiscated without compensation by the Cuban government 
(unless the original owner consents)--violates TRIPs Art. 2.1, in 
conjunction with Articles 6 bis (1) and 8 of the Paris Convention 
(requiring protection of well-known trademarks and of trade-names) and 
TRIPs Articles 3.1, 4, 16.1, and 42 (provisions concerning most favored 
nation treatment, national treatment, trademark rights conferred, and 
fair and equitable enforcement procedures).

Public Comment: Requirements for Submissions

    Interested persons are invited to submit written comments 
concerning the issues raised in this dispute or other matters related 
to this dispute. Comments must be in English and provided in fifteen 
copies to Sandy McKinzy at the address provided above. A person 
requesting that information contained in a comment submitted by that 
person be treated as confidential business information must certify 
that such information is business confidential and would not 
customarily be released to the public by the submitting person. 
Confidential business information must be clearly marked ``BUSINESS 
CONFIDENTIAL'' in a contrasting color ink at the top of each page of 
each copy.
    Information or advice contained in a comment submitted, other than 
business confidential information, may be determined by USTR to be 
confidential in accordance with section 135(g)(2) of the Trade Act of 
1974 (19 U.S.C. 2155(g)(2)). If the submitting person believes that 
information or advice may qualify as such, the submitting person--
    (1) Must so designate the information or advice;
    (2) Must clearly mark the material as ``SUBMITTED IN CONFIDENCE'' 
in a contrasting color ink at the top of each page of each copy; and
    (3) Is encouraged to provide a non-confidential summary of the 
information or advice.
    Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR 
will maintain a file on this dispute settlement proceeding, accessible 
to the public, in the USTR Reading Room: Room 101, Office of the United 
States Trade Representative, 600 17th Street, NW., Washington, D.C. 
20508. The public file will include a listing of any comments received 
by USTR from the public with respect to the proceeding, the U.S. 
submissions to the panel in the proceeding, the submissions, or non-
confidential summaries of submissions, to the panel received from other 
parties in the dispute, as well as the report of the dispute settlement 
panel, and, if applicable, the report of the Appellate Body. An 
appointment to review the public file (Docket WTO/DS-176, ``Section 
211'') may be made by calling Brenda Webb, (202) 395-6186. The Reading 
Room is open to the public from 9:30 a.m. to 12 noon and 1 p.m. to 4 
p.m., Monday through Friday.

A. Jane Bradley,
Assistant U.S. Trade Representative for Monitoring and Enforcement.
[FR Doc. 00-29482 Filed 11-16-00; 8:45 am]
BILLING CODE 3190-01-M