A System that is the Victim of its own Success or an Anomaly that should be Remedied?

• Author: Rémi Lallement
• Profession: Charge of Mission (policy analyst), France Stratégie, France
• Pages: 91-112

7

A System that is the Victim of its own

Success or an Anomaly that

should be Remedied?

Ever since the 1980s, the trend towards the strengthening of

intellectual property regimes has resulted in this respect in a very

significant increase in the volumes of activity and the sums involved.

What may be perceived as an overall inflationist trend is taking shape

globally in different ways, not only through an intensification in terms

of trademarks, industrial design rights, copyright, counterfeiting and

piracy, but also through a proliferation of patents. This development

both saturates patent offices and raises questions about the quality of

patents and their specific outlines. This quantitative explosion, besides

straining courts, also concerns the number of disputes among

companies as well as the amount of damages awarded. It raises the

issue of a need for balance, and recent reforms finally started to

address this problem, especially in the United States, at the beginning

of the decade.

7.1. The escalation of trademarks, industrial design rights,

copyright, counterfeiting and piracy

The consolidation of intellectual property rights may specifically

be presented as a necessary response to the growing problems of

counterfeiting – as a violation of trademark, industrial design right or

patent law – and piracy – in terms of copyright and neighboring rights.

Intellectual Property and Innovation Protection: New Practices and New Policy Issues,

First Edition. Rémi Lallement.

© ISTE Ltd 2017. Published by ISTE Ltd and John Wiley & Sons, Inc.

92 Intellectual Property and Innovation Protection

It is true that this phenomenon is developing very fast, strengthened

by the emergence of online shopping in particular. Its range is hard to

assess, especially since the available official figures are mostly limited

to the products confiscated at borders. If we consider only its

international share, the amount of counterfeit or pirated goods traded

has been estimated at 200 billion dollars in 2008 and 461 billion

dollars in 2013, namely the equivalent of 1.8% and 2.5% respectively

of global trade for those two years and an average yearly 18% increase

according to a joint assessment of the European Union Intellectual

Property Office’s (EUIPO) and of the Organization for Economic Co-

operation and Development (OECD). The problem is particularly

significant in the European Union (EU), where counterfeit or pirated

goods represented close to 5% of the total value of imports in 2013

[OCD 16]. Based on the same estimation, but adding not only the

trade value of counterfeit goods within the different countries but also

the value of the goods pirated digitally in the cinema, music and

software industry, an estimate has been made at the request of the

International Chamber of Commerce (ICC) and the International

Trademark Association (INTA). According to this, the total sales of

counterfeit or pirated goods hovered between 923 and 1,113 billion

dollars in 2013 and is predicted to be ranging from 1,900 to 2,810

billion dollars in 2022. This estimate confirms that China is by far the

main country of origin of counterfeit or pirated goods [FRO 17].

The pace of trademark applications is not far behind this surge in

counterfeit goods. The WIPO estimates that 5.98 billion trademarks

were registered all over the world in 2015, which corresponds not only

to an increase of more than 15% in relation to 2014 – and the highest

since 2000 – but also to double the figure obtained in 2000. Since

2010, trademarks registered in China have on their own represented

between 50% and 85% of the overall global increase. Although the

global level of registered trademarks stopped growing in the mid-

1980s, the number of registrations in China took off in the 1990s and

has been greater than the number of patents filed at the USPTO since

2001. Even the latter, however, have doubled over the last 20 years.

Recently, the annual number of trademark filings has also

significantly increased in India, where it went from less than 100,000

for the period up to 2006 to close to 300,000 today [WIP 16].