WIPO’s International Registration of Trademarks: An International Administrative Act Subject to Examination by the Designated Contracting Parties

Abstract

Although the World Intellectual Property Organization (WIPO) is a technical intergovernmental organization with a limited mandate, it has been entrusted with a panoply of tasks. These include, inter alia, the international harmonization of intellectual property law, the administration of fee-based global intellectual property protection services, and the delivery of dispute resolution services to individuals. While the central role of WIPO in the continuous development of substantive intellectual property law has been questioned by developing countries, the administrative activities of WIPO have remained largely unscathed by critique and, therefore, have not attracted much attention. They revolve around the international filing, registration or recognition of industrial property rights, such as patents, industrial designs and trademarks, and provide an interesting perspective on the law of international institutions. Dating back to 1891 and, thus, presenting itself as one of the earliest examples for the exercise of public authority by international institutions, the international registration of trademarks introduced the concept of an “international administrative act subject to examination by the des-ignated contracting parties.” This concept comprises administrative acts that fulfill the criteria of domestic concepts of administrative decisions, but are performed by international authorities that share their decision- making power with designated contracting parties (i.e. domestic authorities). In comparison with modern instruments of international institutions, the “international administrative act subject to examination by the designated contracting parties” appears to be surprisingly progressive. It is, on the one hand, directly applicable in the domestic legal orders of the contracting parties, and anticipates, on the other hand, elements of modern forms of administrative cooperation between supranational and domestic authorities within the European Community (EC).

The author would like to thank participants in the research project, especially Professor Armin von Bogdandy, Professor Rüdiger Wolfrum, Dr. Jochen von Bernstorff, Dr. Philipp Dann, Matthias Goldmann and Ingo Venzke and the participants of the International Workshop, especially Professor Giacinto della Cananea and Professor Christian Tietje for valuable comments and suggestions on the drafts, colleague Marc Jacob for reading the draft and Eva Richter for formatting.