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"Preface" [2019] ELECD 1821; in Potocnik, Metka (ed), "Arbitrating Brands" (Edward Elgar Publishing, 2019) vi

Book Title: Arbitrating Brands

Editor(s): Potočnik, Metka

Publisher: Edward Elgar Publishing

Section Title: Preface

Number of pages: 2

Extract:

Preface
The idea for this monograph is built on practice and research in trade
mark law and arbitration. Right from the start one thing has been clear:
there is no common language or terminology between experts of intellec-
tual property law and international investment law. The reason for this
appears to be straightforward: before the Philip Morris arbitration cases
there was no overlap between these two areas of law, at least none in
practice. Equally, it was only in 2009 that the investors used the
investment treaty arbitration mechanism as a tool to stop legitimate
public health regulation, with the reasoning that the challenged state
regulation impairs their intellectual property rights. The response to these
two arbitration cases has been profound, among government, practitioner
and academic circles. The intellectual property community could no
longer ignore the reality of international investment agreements, as the
threat of "investmentisation" and "transnationalisation" of intellectual
property rights has become a reality.
Although no longer in the dark, the two expert communities were also
faced with the option of two potential developments: (1) the emergence
of a new area of law or (2) isolated attempts by the tobacco industry
using their IP rights to disguise a challenge to public health regulation,
which negatively affects their profits. It is suggested here that IP
arbitration and in particular IP investment arbitration has not seen its end
with the close of the Philip Morris cases, as demonstrated by cases such
as Eli Lilly and Bridgestone. More importantly, there are ...