The Gazette 1971

Washington Conference There is also the Patents Co-Operation Treaty, signed by 22 countries in Washington in June 1970 which provides for the grant of patents in a number of countries on the basis of one common application, one search and one examination. It is to be noted : (1) That a patent only has strength when its validity can reasonably be assured at the moment of grant which presupposes an effective examination as to novelty. (2) It may be possible to use computer systems in the future, but as yet no computer has been invented which can memorise a whole dictionary of grammar and tech- nical terms in various languages. Thus the harmon- isation of administrative procedures, which can only be achieved when there is unanimity as to the law itself, and this must depend on well-settled trading conditions between Britain and France. Although the Community published the Haertel Committee Draft in 1962 with a view to eventually establishing a single European international patent, little progress has been made since. The question of trade-marks does not appear to be so important inter- nationally as that of patents, as trade-marks are not full monopolies, and protection for them may be received from time to time by the proprietor; this protection remains valid as long as the mark continues to be used. Marks which are protected by law do not inhibit trade and the exchange of goods, and there is thus no urgency about setting up a European Trade-Mark Registry. However, the position under Section 28 of the English Trade-Marks Act, 1958, deserves mention. Under this section, a person other than the proprietor of a trade-mark shall only be registered as a "registered User" and the use which is permitted by such a trade- mark is named "Permitted Use". This is deemed to be an expensive and cumbersome procedure. This permitted use is deemed to be use by the proprietor—in other words the benefit of the goodwill acquired by the trade- mark in consequence upon the licensee's use reverts to the proprietor. A special construction was given to this section by Lloyd Jacob J. in the Bostitch case (1963) where it was held that a licence of a registered trade- mark, the terms of which were never put to the Regis- trar for his approval under Section 28, nevertheless did not invalidate the mark, since the proprietor had exer- cised effective control over the use of the mark. The Bostitch case has since been followed by the Court of Appeal in the GEC case, and will shortly reach the House of Lords. In regard to designs and models, the agreed period of fifteen years copyright in all articles industrially repro- duced whose features of shape and configuration are original and would simply be determined by visuql comparison, as set out in the (English) Designs Copy- right Act, 1968, would seem to be the most appropriate. Jurisdiction and Enforcement of Judgments The problems discussed on Saturday morning, May 1st, in Greenwich were those arising from British adher- ence to the European Community Convention on Juris- diction, Recognition and Enforcement of Foreign Judg- ments signed in Brussels on 27th September 1968. The French rapporteur was Maitre P. F. Ryziger, Advocate to the Conseil d'Etat. He reminded his audi- ence that Article 220 of the Treaty of Rome hopes to ensure that the protection of persons and of rights in each State of the Community will be equivalent to those accorded to their own nationals as well as leading to the abolition of double taxation, the mutual recog-

nition of firms, and finally the simplification of the formalities governing the reciprocal recognition and enforcements of judgments of foreign tribunals. Granting of Exequatur Since 1964, in order to grant an "Exequatur", the French Judge must be satisfied of the following facts : (1) If the execution of a foreign judgment is brought before him, he must be satisfied that that judgment can still be executed in the country from whence it has emanated. (2) That the Court which has rendered the decision is as competent from an international as from a terri- torial point of view. (3) That the law applied by the foreign Judge would be the same as that applied in French private inter- national law. (4) That the defendant should have had notice of the writ and should have adequate time to prepare his defence. Under the German system, an Exequatur can only be grnted under strict conditions of reciprocity as between the judgments of the two countries concerned. This means that in the foreign country, judgments should not be construed in a more liberal way than in the German Courts, and the foreign Judge should not verify the internal competence of the German Courts. In Holland, execution upon foreign judgments as such cannot be levied, but Dutch Judges have availed of the notions of good faith and of equity to give compulsory force to foreign judgments. In Luxembourg, Belgium and Italy the situation is broadly the same as that in France. Brussels Convention The Brussels Convention of 1968, first elaborated in 1964, has not yet been ratified by any State. Generally this Convention applies to civil and commercial mat- ters, but such matters as matters relating to the State and to the capacity of persons, bankruptcies, matters relating to social security and arbitration are excluded. As regards the competence of the Courts, a distinc- tion must be made between (i) general competence, (ii) special competence, and (iii) exclusive competence. The general competence is that resulting from an agreed formula as to the competence of the Courts within the State; here the persons domiciled in the territory of the contracting State will recognise the Courts of that State regardless of their nationality. The special competence of Courts determines the territorial competence of Courts internally in relation to certain optional matters—particularly some torts and contracts of insurance. The exclusive competence of Courts specifically ex- cludes general competence, particularly in : (1) litigation concerning real property; (2) litigation concerning liquidation of companies; (3) the validity of matters affecting registration on pub- lic registers; (4) the validity of trade-marks and patents and (5) the executions of the judgments of the Court of the contracting State. Recognition of Judgments The "Recognition" of a judgment means that that judgment will produce all the usual effects, if it has not to be brought into force as a result of a compulsory execution. Recognition of a foreign judgment can be refused in France under the following circumstances :

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