>The Scope and Nature of Immunity from Jurisdiction for Heads of State under International Law

>The immunity of President Bashar Assad of Syria Under International Law.
By Gabriel Sawma, Esq.

The Assassination of Former Prime Minister, Rafiq al-Hariri.

In February 14, 2005 a powerful blast killed the former Prime Minister of Lebanon Rafik al-Hariri in Beirut. The US recalled its ambassador to Syria for consultations over the death, which raised fears of a return to the violence of Lebanon’s civil war years.

The United Nations Security Council called for the perpetrators to be brought to justice. The Secretary General Kofi Annan urged more progress on the withdrawal of Syrian forces from Lebanon. US Ambassador Margaret Scrobey delivered a note to the Syrian government expressing US outrage over the killing.

Mr. Annan said in a statement that he had written to Syrian President Bashar al-Assad, to urge him to comply with a UN resolution calling for the withdrawal of foreign troops from Lebanon.

The United States and France jointly initiated a demand by the Security Council to bring the killers to justice. UN Secretary General Kofi Annan announced the dispatch of an independent team to investigate the assassination. The mass demonstrations in Lebanon, featuring harsh attacks against Syria, which until then had been unprecedented, encouraged the West to place increased pressure on Damascus to fulfill the terms of Security Council Resolution 1559 and remove its forces from Lebanon. In April 26, 2005, the Syrian government announced the withdrawal of their forces in compliance with the Security Council Resolution.

A probe was established to investigate the killing of Rafiq al-Hariri, headed by a known German prosecutor, Detlev Mehlis. The investigation is still going on at the time of this article. The Question is, what will happen next. If Syria’s President is involved in this criminal activity, does he loose his immunity as Head of State?

Immunity Under International Law

Until the 20th century, there were no international courts which could exercise jurisdiction over heads of state, and national courts could not exercise jurisdiction over serving heads of state or former heads of state for public acts carried out while in office. This position under international law has since evolved.

It developed first under article 227 of the Treaty of Versailles (1919) whereby the former Kaiser, William II, was indicted for prosecution before special tribunal to be constituted by the victorious powers. Then came to the trials before the Nuremberg and Tokyo International Military Tribunals at the end of World War II.

Under the UN Charter Article 29, the Security Council has the power to establish subsidiary bodies to perform its functions. The Council could establish a Liaison Group with International Courts that would coordinate with the International Court of Justice (ICJ), international criminal tribunal, two of which were established: the International Criminal Tribunal for Yugoslavia (ICTY) and Rwanda (ICTR).

Due to significant financial and personnel requirements, none of the Security members supported the establishment of another UN tribunal similar to the ICTY and ICTR. Instead, the UN decided to create a special hybrid-court that will be administered jointly by the government involved and the United Nations.

Accordingly, the Security Council set up several criminal tribunals, these are:

· Special Court for Sierra Leone (SCSL) to look into the crimes committed against civilians with mass amputation and rape. The SCSL is a “hybrid” national and international court designed to bring the perpetrators of these crimes to justice.
· Special Tribunal for Cambodia (STC) to look into the crimes committed by the Khmer Rouge who killed an estimated 1 million people during the 1970s. Thirty years later, the UN and the Cambodian government agreed to establish a joint national and international court to hold those responsible accountable.
· Ad Hoc Court for East Timor to look into the crimes committed by the Indonesian military and pro-Indonesian militias who murdered thousands of Timorese during the territory’s struggle for independence, and hold responsible the perpetrators from the Indonesian government.

The primary difference between the Special Court and the ICTY and ICTR is the mandate under which they are created. The ICTY and ICTR were established by the Security Council under Chapter VII of the UN Charter, which gives the United Nations power to intervene in the affairs of sovereign state to restore international peace and security. These tribunals are under the jurisdiction of the UN and operate independently from and irrespective of the Yugoslav and Rwandan governments.

A treaty between the United Nations and the sovereign governments, usually under joint jurisdiction, created the Special Courts for Sierra Leone, Cambodia, and East Timor, and as such, the tribunals represent an entirely new model for bringing perpetrators or war crimes to justice. These Special Courts are staffed with both local and international judges and prosecutors. The Secretary-General appoints a Chief Prosecutor for each case, while the local governments, in consultation with the UN, appoint a Deputy. Although the Deputy will have some input on the indictments, the Chief Prosecutor will make the final decision.

If security allows, the Special Courts is usually located in the country where the crimes were committed; it is much easier for victims to follow the court’s proceedings. At the same time, diplomats will facilitate the diffusion of legal knowledge from international to local judicial officials, which will assist in rebuilding the country’s judicial system. The Security Council resolution in the case of Sierra Leon explicitly notes the “pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone.”

The drawback of Special Tribunal is that, because the Security Council directly establishes it, the court cannot assert primacy over the national courts of third states, unless the Council endows the court with the power to request the surrender of suspects in third states. It is important to keep in mind that, with the absence of a Chapter VII mandate will also prevent the court from extending its jurisdiction to prosecute war crimes perpetrated in neighboring country. A UN tribunal established with a Chapter VII mandate might be able to prosecute these crimes.

Prosecution of Heads of state, and high-ranking officials. The immunity issue

The immunity of head of state is one of the most controversial topics in international law. The purpose of the immunities is to offer a complete protection against national criminal jurisdiction. To create an exception to this rule would be to create a possibility of abuse and thereby defeat the purpose of the immunity. This principle has been held recently even with respect to international crimes. In the Pinochet case, the judges emphasized “head of state is till protected while in office by immunity ratione personae even in respect of serious international crimes.” That means a serving head of state or diplomat can still claim immunity if charged with [torture]. “The nature of charge is irrelevant; his immunity is personal and absolute.”

In March 2001, the French Cour de cassation held in the Qaddafi case that the crime charged, i.e. complicity in acts of terrorism, did not fall within the categories of international crimes providing for an exception to immunity from jurisdiction of Heads of State. A serving head of state is immune from prosecution in national courts, even in relation to serious acts of terrorism.

In the case of Fidel Castro, the Spanish Audienco Nacional reached the same conclusion. It stated that the Cuban President could not be tried even for international crimes, as long as he was serving in his capacity as head of state. He enjoys immunity under public international law. The Spanish Court ruled that it has no jurisdiction to try Castro.

In October 2001, the United States Court reached a similar conclusion in Tachiona v. Mugabe. It affirmed that the Torture Victim Protection Act did not override either traditional diplomatic immunities or the comparable immunity given to visiting heads of states. Diplomatic immunity prevents national prosecutors from initiating a lawsuit against foreign head of state or its diplomatic corps regardless of the charge.

Attempts were made by other governments to limit the scope of the immunity to heads of states and other high-ranking officials. In 1999, Belgium passed a law providing universal jurisdiction over international crimes committed by anyone, anywhere, even if the perpetrator was not present in Belgium and denying all immunities for such crimes. On April 11, 2000, a Belgium judge issued an international arrest warrant against Mr. Yerodia, who was at the time serving as the minister for foreign affairs for the Democratic Republic of Congo (DRC). The DRC initiated proceedings against Belgium in the International Court of Justice (ICJ), arguing that the universal jurisdiction in absentia asserted by Belgium exceeded international law and that Belgium’s non-recognition of the immunity of a serving minister of foreign affairs was a violation of international law.

The ICJ issued its ruling on Feb. 14, 2002 by 13 votes to 3 that Belgium had violated a legal obligation towards the Democratic Republic of Congo. The court firmly rejected the notion that, having regard to the developments in international law and in particular customary international, a serving foreign minister was entitled to claim immunity before a national court. It held that the immunity before national courts was not affected by the existence of treaties such as the Torture Convention. The court held “in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the DRC enjoyed under international law. It held that the immunities ratione personae enjoyed by a Foreign Minister could not be set aside by a national court by charging them with war crimes or crimes against humanity.

The personal immunity of Heads of State from jurisdiction always covers official visits abroad, private visits are also protected, although to a more limited extent. In an exception to immunity given to high state officials from foreign jurisdiction, the International Court of Justice stated that the immunity seizes if the state they represent waives their immunity.

The Immunity of Head of State Under the Special Tribunals

With the establishment of UN Special Tribunals and a growing body of international human rights law, the international community has strongly asserted individual responsibility for violations of human rights. The status of sitting Head of State appears to be the last battleground on this issue; prime ministers, presidents, and kings are remaining individuals who are granted immunity for the gravest crimes by a system of international law, which refutes impunity for all other individuals. This situation is being reversed gradually.
Sierra Leone suffered through a gruesome, ten-year civil war. The Revolutionary United Front (RUF), led by Foday Snakoh, used amputations and mass rape to terrorize the population and gain control of the country’s lucrative diamond mines. Charles Taylor, then president of neighboring Liberia, backed the insurgency providing arms and training to the RUF in exchange for diamonds. In 1999 the UN eventually brokered the Lome Peace Accord between the warring parties.

In January 2002 the UN Security Council approved the Special Court for Sierra Leone (SCSL) to try those responsible for the crimes committed during the civil war. The purpose of the Special Court was to prosecute those with the “greatest responsibility” for crimes against humanity, the court may decide whether to indict individuals who continually instigate conflict and brutality in their region. On June 4, 2003, the Special Court for Sierra Leone (SCSL) issued an arrest warrant against Charles Taylor, the incumbent President of Liberia. When the warrant was issued, Mr. Taylor was traveling to Ghana for talks with Liberian rebel groups to end a four-year civil war that has destabilized West Africa. The indictment against Mr. Taylor had been issued on March 7, 2003, but was kept sealed until the Special Court Prosecutor saw in Mr. Taylor’s trip an opportunity to apprehend him. The warrant was served on the authorities of Ghana, and transmitted to Interpol. Ghanaian authorities did not apprehend him.

On May 31, 2004, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Freetown ruled unanimously that Charles Taylor does not enjoy any immunity from prosecution by the Court though he was the serving Head of State of Liberia at the time criminal proceedings were initiated. This historic ruling by the Court is a significant contribution to the modern international law norm asserting that Heads of State and other high-ranking governmental officials are not absolved of criminal responsibility for serious international crimes.

Despite its hybrid nature, the SCSL is not considered a national court; it acts as an international court, even though it functions on the territory of Sierra Leone. In other words, it is based outside the legal system of Sierra Leone. The State of Sierra Leone transferred the jurisdiction to the SCSL on the basis of an agreement with the UN Security Council. Given the Arrest Warrant case, Sierra Leone courts would have been unable to prosecute Mr. Taylor.

As the SCSL performs its job in Sierra Leone, it is independent from the national judicial system; the prosecutor and judges enjoy diplomatic immunity from any undue influence by its host state on judicial decisions. The fact that Sierra Leone has appointed three judges is negligible as they can always be overruled by a majority opinion of international judges, or in cases of clear prejudice may be disqualified.

Chapter VII of the UN Charter, which governs ICTR and ICTY, does not back the agreement between the Security Council and Sierra Leone. Both ICTR and ICTY were established by Chapter VII Security Council resolutions, by which all members of the UN were bound by the decision to remove immunity for state officials. Although the SCSL did not have Chapter VII backing, nevertheless, it had the “will” of the international community behind it. The broad support from all sections of the international community for its creation-political and financial-, and that it was set up pursuant to (although not by) a Security Council resolution. It was this unexpressed fact, which gave the SCSL a sufficient degree of comfort to hold that it was an international court before which immunity of a Head of State did not apply. The majority opinion among legal scholars favored the view that there is no entitlement to immunity before international courts, and therefore nothing to be waived.

On June 29, 2001, the prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under article 18 of the Statute indicted Slobodan Milosevic while he was President of Yugoslavia.

The Statute of Rome, which established the ICC adopted in 1998 article 27, which provides that there was no entitlement to immunity for any person subject to the Jurisdiction of the ICC.

The Iraq Tribunal Trying Saddam Hussein and Other Top Baath Leaders

The capture of Saddam Hussein on December 13, 2003 prompted a worldwide debate about how best to try him and other top Baath Party Leaders. On August 11, 2005, the Iraqi Transitional National Assembly approved a war crimes tribunal in Iraq, which was originally established by the US-installed Iraqi government Council. The court is mandated to prosecute numerous high level members of the former Iraqi regime who are accused of crimes against humanity, war crimes and genocide, but the court has mainly focused on its most high-profile case: Saddam Hussein. Saddam went on trial on October 19, 2005, for a 1982 massacre that took place in Dujail, north of Baghdad.

Human Rights groups and legal experts agree that the Iraqi people must have the right to try their own persecutors, but question the competence and impartiality of Iraq’s judicial system. The Regime Crimes Liaison Office (RCLO), run by the US Department of Justice, is actively involved in the court’s investigations, the translation of materials and the training of Iraqi lawyers and judges. Critics believe that by backing a trial in Iraq, Washington hopes that its past support for Saddam Hussein will not be revealed. Opponents of the court had hoped for an internationally organized tribunal with significant domestic participation, similar to the Special Court for Sierra Leone (SCSL), to avoid the tribunal degenerating into a “political show trial.” An international tribunal would also allow Kuwait and Iran to take part in the trial (as they have requested) for crimes committed against these two countries.

Is the President of Syria Immune From Prosecution Under International Law?

Without commenting on the merits of the case, the assassination of the former Prime Minister al-Hariri of Lebanon by foreign elements from Syria constitutes a violation to international law. Should the President of Syria be implicated in such a terrorist attack, his immunity will be hanging in the air.

The assassination of former Lebanese Prime Minister Rafiq Al-Hariri in February 2005 led the UN Security Council to issue Resolution 1595 setting up an international commission of inquiry.

On October 31, 2005, the Security Council met at Ministerial Level and formally endorsed the Report of the United Nations Independent Investigation Commission that found evidence of Syrian involvement in the assassination of former Lebanese Prime Minister Rafiq al-Hariri. The Security Council issued Resolution 1636 under Chapter VII of the United Nations Charter. It called for Syria to “cooperate fully and unconditionally with the Commission and insisted it not interfere in Lebanese affairs.”

On December 17, 2005, the UN Security Council adopted Resolution 1644 in which it demanded that Syria respond “unambiguously and immediately” to the Commission investigating the terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri and extended the probe initially until June 15, 2006, leaving open the possibility of further extension.

The Council also authorized the Commission, following the request of the Lebanese Government, to extend its technical assistance to that Government with regard to their investigations on the terrorist attacks perpetrated in Lebanon since October 1, 2004, and caused the murder of prominent journalists including Gibran Tueini, editor in chief of a leading Lebanese newspaper “An Nahar”. It asked the Secretary-General, in consultations with the Commission and the Lebanese Government, “to present recommendations to expand the Commission’s mandate to include investigations of those other attacks.”

The Security Council also acknowledged the Lebanese Government’s request that “those eventually charged with involvement in the terrorist attack be tried by an international tribunal, the Council asked the Secretary-General to help that Government identify the nature and scope of the international assistance needed in that regard, and to report to the Council in a timely manner.”

In a recent TV interview, the former Vice President of Syria, Abdul-Halim Khaddam, who defected to France, said that Assad had threatened Hariri during their last meeting. Syrian President denied the charge, but suggested in an interview that he would not allow UN investigators to interview him about the Hariri’s killing.

Under the current situation, and before the formation of the International Tribunal, the Prosecutor can issue an Arrest Warrant against the president of Syria, but national courts, based on the precedents mentioned earlier, will not agree to that.

However, as soon as the International Special Court is established, the Prosecutor can issue an International Arrest Warrant; upon the approval of the Court, the Interpol will be notified and the Head of State will be considered a fugitive. An arrest warrant is an order issued by the Prosecutor to authorize the arrest and detention of an individual.

Under the rules of the International Criminal Court, the Pre-Trial Chamber (PTC) will authorize such an arrest warrant, upon an application by the Prosecutor. (An indictment, mostly used in common law countries, is a formal charge against an individual ‘or formal accusation’ for having allegedly committed a serious criminal offense. The ICTY but not the ICC is using the indictment procedure.)

Once the Prosecutor has initiated an investigation, he then may at any time make an application for an arrest warrant Pre-Trial Chamber (PTC). The Prosecutor’s application for an arrest warrant shall contain the following information (Rome Statute, Art. 58):
· The person’s name and identifying information;
· A specific reference to the alleged crimes and a concise statement of the facts thereof;
· A summary of evidence and information establishing the reasonable grounds for a warrant; and
· The reason why the Prosecutor believes the arrest is needed.

Following receipt of the Prosecutor’s application, the PTC will evaluate the materials presented by the Prosecutor and issue an arrest warrant when the PTC feels that there are reasonable grounds to believe that the person has committed a crime under the jurisdiction of the ICC; and when the PTC finds it necessary that the person be arrested. Arrest warrant remains in effect until the Court decides otherwise.

The Chamber may decide to keep a decision “sealed”, this means that the decision will be confidential and only accessible to those persons or organs of the ICC (or outside actors), which the Court authorizes.

On the basis of this arrest warrant, the Court may request a State Party to make a provisional or a full arrest and surrender. The Registrar is responsible for transmitting a request for cooperation issued by the Chambers (e.g. a request for arrest) to a State Party or international organization. The Registrar will also be responsible for receiving all responses to the request from the requested State or international organization. However, a Chamber may allocate to the Prosecutor, instead of the Registrar, the responsibility to transmit a particular request for cooperation, or warrant of arrest, and to receive the responses to such requests.

What happens after an arrest warrant and a request for arrest has been issued?

The ICC does not have its own police force. When the Pre-Trial Chamber has issued an arrest warrant, the Court relies on the cooperation of States and international organizations to arrest and surrender the person. Moreover, the Court may, by itself or following a request by the Prosecutor, take certain measures that are necessary to ensure the safety and well being of any victims and witnesses, including measures related to the protection of information.

A State Party receiving a request for cooperation has to keep the request confidential. Any information about the request may only be disclosed if this is necessary for the execution of that request.

Once a person has been arrested and the Court has been informed about the arrest, the Court must hand over the arrest warrant to the arrested person. The arrested person must then be brought before a court in the State Custody, which must determine, based on its national laws, that the right person has been lawfully arrested.

Beyond A Reasonable Doubt

Judicial authorities should be aware of the fact that it may be very difficult to determine the personal responsibility of a Head of State. Indeed, it would be necessary to prove beyond reasonable doubt that he ordered or instigated the perpetration of the crimes charged with, or, despite having the effective power and authority to prevent or punish the persons responsible for the commission of those crimes, willfully failed to do so. So far no Syrian official has been punished in Syria.

©Copyright 2006 Gabriel Sawma Esq. all rights reserved.
For interviews about international law, or about the Scope and Nature of Immunity from Jurisdiction for Heads of State Under International Law, please contact the author. Tel 609-275-6321; Fax 609-275-0355 or Email: gabrielsawma@yahoo.com, or visit our web log at: http://www.gabrielsawma.blogspot.com
DISCLAIMER: The materials contained on this website are for general purposes only and are subject to DISCLAIMER. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of a competent counsel.

>Public International Law and Organizations

>PUBLIC INTERNATIONAL LAW

Introduction to international law

· Definition: comparative study between public and private international law
· Background: the development of public international law since the Treaty of Westphalia (October 23, 1648), to the establishment of the Charter of the United Nations (June 26, 1945).

The United Nations institutions and functions

Statute of the International Court of Justice (1945)

Charter of the Organization of American States (April 30, 1948) signed in Bogota in 1948 and amended by the Protocol of Buenos Aires in 1967, by the Protocol of Cartagena de Indias in 1985, by the Protocol of Washington in 1992, and by the Protocol of Managua in 1993.

Treaty establishing the European Economic Community or Treaty of Rome (March 25, 1957, as amended by subsequent treaties through the Treaty of Amsterdam (October 2, 1997; the Treaty on European Union (Maastricht, February 2, 1992); The Treaty of Nice (February 26, 2001) and the Treaty Establishing a Constitution for Europe which is undergoing ratification throughout the Union.

International Environmental Law: The customs, treaties and concepts of international law related to the environment, it includes the following:
· Convention for the Establishment of the European and Mediterranean Plant Protection Organization (April 18, 1951)
· International Plant Protection Convention (December 6, 1951
· The Arctic Treaty (December 1st, 1959)
· African Convention on the Conservation of Nature and Natural Resources (September 15, 1968
· Convention Concerning Protection against Hazards of Poisoning Arising from Benzenes (June 23, 1971)
· United Nations Conference on the Human Environment in Stockholm (1972)
· Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London, 1972)
· International Convention for the Prevention of Pollution from Ships (February 17, 1978)
· World Charter for Nature (1982)
· Convention Concerning Safety Use of Asbestos (June 24, 1986
· Convention on Early Notification of a Nuclear Accident (September 26, 1986)
· London Guidelines for the Exchange of Information on Chemicals in International Trade (May 25, 1989)
· Protocol on Environmental Protection to the Antarctic Treaty (October 4, 1991)
· United Nations Conference on Environment and Development (June 14, 1992)
· North American Agreement on Environmental Cooperation (September 12,1993)
· International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (May 3, 1996)
· Rotterdam Convention on the Prior Informed Consent Procedure For Certain Hazardous Chemicals and Pesticides in International Trade (September 11, 1998)
· Other conventions, protocols and treaties related to the protection of the environment

International Law – Human Rights
· Universal Declaration of Human Rights (1948)
· Convention on the Prevention and Punishment of Genocide (December 9, 1948)
· Geneva Convention I (August 12 1949)
· Geneva Convention II (August 12, 1949)
· Geneva Convention III (August 12, 1949)
· Geneva Convention IV (August 12, 1949)
· European Convention on Human Rights (November 4, 1950)
· Convention Relating to the Status of Refugees (July 28, 1951)
· Supplementary Convention on the Abolition of Slavery (September 7, 1956)
· International Convention on the Elimination of All Forms of Racial Discrimination (March 7, 1966)
· International Covenant on Civil and Political Rights (December 16, 1966)
· American Convention on Human Rights (November 22, 1969)
· Convention on the Elimination of All Forms of Discrimination Against Women (December 18, 1981)
· European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Strasbourg November 26, 1987)
· Convention on the Rights of the Child (November 20, 1989)
· Draft Declaration on the Rights of Indigenous Peoples (1992)
· United Nations World Conference on Human Rights (Vienna, June 25, 1993)
· Draft Declaration of Principles on Human Rights and the Environment (1994)
· Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (entered into effect on November 19, 2000
· United Nations Convention against Transnational Organized Crime (December 15, 2000)
· Other international treaties, conventions and protocols concerning human rights issues.

International Law of the Sea: The resources and uses of the sea, and applicable international customs, treaties and principles. These include the following:

· Convention for the Establishment of a General Fisheries Council for the Mediterranean (Sept 24, 1949)
· International Convention for the High Seas Fisheries of the Pacific Ocean (May 9, 1952)
· International Convention for the Prevention of Pollution of the Sea by Oil May 12, 1954)
· Convention on the High Seas (April 29, 1958)
· North Atlantic Fisheries Convention (January 24, 1959)
· Convention Concerning Fishing in the Black Sea (July 7, 1959)
· Convention for the International Council for the Exploration of the Sea (September 17, 1964)
· International Convention on Civil Liability for Oil Pollution Damage (November 29, 1969)
· Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil thereof (February 11, 1971)
· Kuwait Regional Convention for Co-Operation on the Protection of the Marine Environment from Pollution (April 24, 1978)
· Convention for the Conservation of Salmon in the North Atlantic Area (March 2, 1982)
· United Nations Convention on the Law of the Sea (December 19, 1982)
· Provisional Understanding Regarding Deep Seabed Mining (August 3, 1984)
· South Pacific Nuclear Free Zone Treaty (August 6, 1985)
· United Nations Convention on the law of the Non-Navigational Uses of International Watercourses (May 21, 1997)
· Other treaties, conventions and protocols for the protection of the Sea.

International Atmospheric and Space Law:
· Treaty Banning Nuclear Weapon Tests in the Atmosphere (August 5, 1963)
· Agreement on the Rescue of Astronauts, the Return of Astronauts (April 22, 1968)
· Convention on International Liability for Damage Caused by Space Objects (March 29, 1972)
· Convention on the International Maritime Satellite Organization, as amended in 1985
· Agreement Governing the Activities of States on the Moon and other Celestial Bodies (December 5, 1979)
· Vienna Convention for the Protection of the Ozone Layer (March 22, 1985)
· United Nations Framework Convention on Climate Change (May 9, 1992)
· Kyoto Protocol (December 1997)

International Law and the Protection of Culture. Includes the following:

· Convention for the Protection of Cultural Property in the Event of Armed Conflict (May 14, 1954)
· European Cultural Convention (December 19, 1954)
· European Convention on the Protection of the Archaeological Heritage (May 6, 1969)
· Convention on the Means of Prohibiting and Preventing the Illicit Import-Export and Transfer of Ownership of Cultural Property (November 14, 1970)
· Convention on the Protection of the Archaeological, Historical and Artistic Heritage of the American Nations (June 16, 1976)
· European Convention for the Protection of the Archaeological Heritage of Europe (January 16, 1992)
· Convention on Stolen or Illegally Exported Cultural Objects (June 24, 1995)
· Other treaties and conventions dealing with the protection of culture under international law.

International Law – Trade and Commercial Relation. Includes the following:

· General Agreement on Tariffs and Trade (1947) with the amendments through 1966 including the Final Act of the Uruguay Round via The World Trade Organization
· Treaty Establishing the European Community (Treaty of Rome) signed on March 25, 1957 with its subsequent amendments through the Treaty of Amsterdam, signed on October 2, 1997. The Maastricht Treaty, which established the European Union, singed on February 7, 1992 and took effect on November 1st, 1993. Treaty of Nice, signed on February 26, 2001, became effective on February 1st, 2003 and the Treaty Establishing a Constitution for Europe, which is being ratified by twenty-five Member States.
· Convention on the Organization for Economic Co-operation and Development (December 14, 1960)
· Paris Convention for the Protection of Industrial Property
· International Convention on Travel Contracts (Brussels, April 23, 1970)
· United Nations Convention on Contracts for the International Sale of Goods (April 11, 1980)
· Convention on International Bills of Exchange and International Promissory Notes (December 9, 1988)
· North American Free Trade Agreement (1993)
· Draft Model Law on Electronic Commerce – UNCITRAL, revised on June 14, 1996
· Multilateral Agreement on Investment (MAI) (1997)
· Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (December 17, 1997)

International Law – Intellectual Property: Includes the following:

· International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (October 26, 1961
· Berne Convention for the Protection of Literary & Artistic Works (Stockholm, July 14, 1967) and Paris, July 24, 1971
· Patent Cooperation Treaty (July 19, 1970)
· Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (November 14, 1970)
· Universal Copyright Convention Paris, July 24, 1971
· WIPO Copyright Treaty (December 20, 1996)
· Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (October 29, 1971)
· WIPO Performances and Phonograms Treaty (December 20, 1996)
· World Intellectual Property Organization-World Trade Organization: Agreement Between WIPO and WTO ( Geneva, December 22, 1995)
· World Intellectual Property Organization: Copyright Treaty (December 20, 1996)
· World Intellectual Property Organization: Performances and Phonograms Treaty (December 20, 1996)

International Law – Rules of Warfare and Arms Control. This includes the conventions and protocols signed between 1863 to June 17, 1925. It also includes the following:

· Convention on the Prevention and Punishment of Genocide (December 9, 1948)
· Geneva Convention I. For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. (August 12, 1949)
· Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (August 12, 1949)
· Geneva Convention III Relative to the Treatment of Prisoners of War (August 12,1949)
· Geneva IV Relative to the Protection of Civilian Persons in Time of War (August 12,1949)
· Convention for the Protection of Cultural Property in the Event of Armed Conflicts (May 14, 1954)
· Treaty Banning Nuclear Weapon Tests in the Atmosphere (August 5, 1963)
· Treaty on the Non-Proliferation of Nuclear Weapons (July 1st, 1968)
· Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil thereof (February 11, 1971)
· Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (April 10, 1972)
· Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-ballistic Missile Systems (May 26, 1972) and Protocol (July 3, 1974)
· Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (December 10, 1976)
· Protocol I: Additional to the Geneva Conventions of August 12, 1949, and relating to the protection of victims of international armed conflict (June 8, 1977)
· Protocol II: Additional to the Geneva Conventions of August 12, 1949, and relating to the protection of victims of non-international armed conflict (June 8, 1977)
· South Pacific Nuclear Free Zone Treaty (August 6, 1985)
· Treaty on Conventional Armed Forces in Europe (November 19, 1990)
· Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (January 13, 1993)
· Comprehensive Nuclear Test Ban Treaty (September 10, 1996)
· United Nations International Convention for the Suppression of Terrorist Bombings (January 12, 1998)
· More treaties and conventions dealing with arms control.

International Criminal Law: The United Nations Office on Drugs and Crime UNODC is responsible for crime prevention, criminal Justice and criminal law reform. It pays special attention to combating international organized crime, corruption and illicit trafficking in human beings. The General Assembly passed eleven resolutions at its 55th session. These are:

· UN Convention against Transnational Organized Crime (A/RES/55/25)
· Strengthening of the United Nations Crime Prevention and Criminal Justice Program, in particular its technical cooperation capacity (A/RES/55/64)
· Combating the Criminal Misuse of Information Technologies (A/RES/55/63)
· UN African Institute for the Prevention of Crime and Treatment of Offenders (A/RES/55/62)
· International Legal Instrument Against Corruption (A/RES/55/61)
· Follow-up to the 10th UN Congress on the Prevention of Crime and the Treatment of Offenders (A/RES/55/60)
· Vienna Declaration on Crime and Justice (A/RES/55/59)
· International Cooperation against the World Drug Problem (A/RES/55/65)
· Traffic in Women and Girls (A/RES/55/67
· Preventing and Combating Corrupt Practices and Illegal Transfer of Funds and Reparation of Such Funds to the Countries of Origin (A/RES/55/188)
· Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, Supplementing the United Nations Convention Against Transnational Organized Crime (A/RES/55/255)

The UNODC has formulated and promoted internationally recognized principles in such areas as independence of the judiciary, protection of victims, alternatives to imprisonment, treatment of prisoners, police use of force, mutual legal assistance and extradition. More than 100 countries worldwide have relied on these standards in writing their national laws and policies in crime prevention and criminal justice.

International Law – Conventions Against Terrorism: there are twelve major multilateral conventions and protocols related to states’ responsibilities for combating terrorism, but many of those states have not yet implemented them. Besides, there are other instruments that are connected to terrorism among them:
· The 1961 Vienna Convention on Diplomatic Relations
· The 1963 Vienna Convention on Consular Relations
· UN Security Council and General Assembly Resolutions on international terrorism
· Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 1963)
· Convention for the Suppression of Unlawful Seizure of Aircraft (Hague, 1970)
· Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 1971)
· Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons. It outlaws attacks on senior government officials and diplomats (1973)
· International Convention Against Taking of Hostages (1979)
· Convention on the Physical Protection of Nuclear Material, it combats unlawful taking and use of nuclear material (1980)
· Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, it supplements the Convention for the Suppression of Unlawful Acts Against the Safety Aviation (1988)
· Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, it applies to terrorist activities on ships (1988)
· Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, it applies to terrorist activities on fixed offshore platforms (1988)
· Convention on the Marking of Plastic Explosives for the purpose of Detection, it provides for chemical marking to facilitate detection of plastic explosives (1991)
· International Convention for the Suppression of Terrorist Bombing, UN General Assembly Resolution (1997)
· International Convention for the Suppression of the Financing of Terrorism (1999)

· International Law – Protection of nature: this includes international conventions held at the beginning of the twentieth century until 1994. It includes also the following:
· Agreements for the Establishment of a General Fisheries Council for the Mediterranean (September 24, 1949)
· International Convention for the Protection of Birds (October 18, 1950)
· International Convention for the Protection of New Varieties of Plants (December 2, 1978)
· International Convention for the Conservation of Atlantic Tuna (May 14, 1966)
· European Convention for the Protection of Animals During International Transport (December 13, 1968
· Convention on Wetlands of International Importance Especially as Waterfowl Habitat (February 2, 1971)
· Convention for the Conservation of Antarctic Seals (June 1, 1972)
· Convention on International Trade in Endangered Species of Wild Fauna and Flora (March 3, 1973)
· Agreement on the Conservation of Polar Bears (November 15, 1973)
· World Charter for Nature (1982)
· International Tropical Timber Agreement (November 18, 1983)
· Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Sept 5, 2000)
· Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (April 20, 2001)
· Other agreements, conventions and protocols dealing with the protection of nature under international law.

International Law – Diplomatic and Consular Relations:

· Vienna Convention on Diplomatic Relations (April 18, 1961)
· Vienna Convention on Consular Relations (April 24, 1963)
· Vienna Convention on the Law of Treaties (May 23, 1969)
· Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (March 21, 1986).

International Criminal Court: The purpose of the treaty is to try “individuals accused of committing genocide, war crimes and crimes against humanity”. Established by Rome Statute, UN Document 2187 (U.N.T.S. 90), entered into force on July 1, 2002.

References

Introduction to International law:
· Regulating Law, Christine Parker, 2004
· International Rules, Robert J. Beck, 1996
· Sustainable Development Law, Principles, Practices, and Prospects, Marie-Claire, 2005
· The British Year Book of International Law, Ian Brownlie, 1992
· Declining Jurisdiction in Private International Law, J.J. Fawcett, 1995
· International Law Documents, Malcolm Evans, 2003
· Public Law and Democracy in the United Kingdom and the United States of America, P.P. Craig, 1991
· Public Law, Adam Tomkins, 2003
· Basic Documents in International Law, Fifth ed., Ian Brownlie, 2002
· Essays in International Litigation and the Conflict of Laws, Lawrence Collins, 1994
· The Reality of International Law, Guy S. Goodwin-Gill, 2000
· Cases and Materials on International Law, 4th ed. Martin Dixon.

The UN Institutions:
· The Charter of the United Nations 2 vols. Second ed., Bruno Simma, 2002
· The United Nations and the Development of Collective Security, Danesh Sarooshi, 2000
· The United Nations System and its predecessors, Franz Knipping, 1998
· The Oxford 50th Anniversary Book of the United Nations, Charles Patterson, 1995
· The United Nations As a Political Institution Fifth ed. H.G. Nicholas, 1975

The European Union:
· The State of the European Union, Tanja A. Borzel, 2003
· Accountability and Legitimacy in the European Union, Anthony Amull, 2003
· The European Union and its Court of Justice, Athony Amull, 2000
· The European Union, A Very Short Introduction, John Pinder, 2001
· The Enlargement of the European Union, Marise Cremona, 2003
· The European Union, Economy, Society, and Polity, Andres Rodriguez-Pose, 2002
· European Union Law, 3rd ed. Margot Horspool, 2003
· Culture and European Union Law, Rachael Craufurd Smith, 2004

International Environment Law:
· International Law and the Environment, 2nd ed., P.W. Bimie, 2002
· International Law and Infectious Diseases, David P. Fidler, 1999
· Yearbook of International Environmental Law, Vol. 5, Gunther Handl, 1994
· International Law, Second ed., Antonio Cassese, 2005

International Law – Human Rights:
· The International Law of Human Rights, Paul Sieghart, 1984
· Impunity and Human Rights in International Law and Practice, Naomi Roht-Arriaza, 1995
· Remedies in International Human Rights Law, Dinah Shelton, 2001
· The Law of Human Rights, Richard Clayton, 2003
· International Human rights in context, Law Politics, Morals, second ed. Henry Steiner, 2000
· International Law, Human Rights, and Japanese Law, The Impact of International Law on Japanese Law, Yuji Iwasawa, 1999
· Migrant Workers in International Human Rights Law, Their Protection in Countries of Employment, Ryszard Cholewinski, 1997
· International Human Rights and Islamic Law, Mashood A. Baderin, 2003
· Accountability for Human Rights Atrocities in International Law, Neyond the Nuremberg Legacy, 2nd ed. Steven R. Ratner, 2001

International Law of the Sea:
· In Defense of Natural Law, Robert George, 2001
· Yearbook of International Environmental Law, Vol.8, Jutta Brunnee, 1997
· International Law and the Environment, second ed. P.W. Bimie, 2002
· The Law of International Watercourses, Non-Navigational Uses, Stephen C. McCaffrey, 2001

International Atmospheric and Space Law:
· Studies in International Space Law, Bin Cheng, 1998
· United Kingdom Materials on International Law 1975-2001, Geoffrey Marston. 2004
· International Law and the Environment, 2nd ed. P.W. Bimie, 2002
· International Law and Infectious Diseases, David P. Fidler, 1999

Other Reference Books
· Like Products in International Trade Law
· The Termination and Revision of Treaties in the lIght of New Customary International Law, Nancy Kontou, 1995
· Provisional Measures in International Law, The International Court of Justice and the International Tribunal for the Law of the Sea, Shabtai Rosenne, 2005
· International Law and the Use Of Force, 2nd. Ed. 2004
· Indigenous Peoples in International Law, 2nd ed., S. James Anaya
· International Criminal Law, Antonio Cassese, 2003
· Fairness in International Law and Institutions, Thomas M. Franck, 1998
· The American Tradition of International Law, Mark Weston Janis, 2004
· International Sale of Goods in the Conflict of Laws, James Fawcett, 2005
· Environment Damage in International Law 1999, Seventieth Year of Issue, Vol 70, James Crawford, 2001
· International Public Finance, Ruben P. Mendez, 1992
· Procedural Law in International Arbitration, Geogios Petrochilos, 2004
· The of the International Civil Service, As Applied by International Administrative Tribunals, Vol 1, 2nd revised ed., C.F. Amerasinghe, 1994
· International Monetary Law Mario Giovanoli, 2000
· The Workers of Nations, Industrial Relations in a Global Economy, Sanford M. Jacoby, 1995

© Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED
For interviews on international law covered on this site, or for internviews about the Middle East or Islamic laws, please contact the author. Tel 609-275-6321; Email gabrielsawma@yahoo.com or Fax 609-275-0355.This website is researched, edited, published and maintained by Gabriel Sawma.

The materials contained on this website are for general information purposes only and are subject to disclaimer. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent attorney.

Limitations on the Effectiveness of Trademark Laws in the EU

>Case Study – Trade Mark

The Council of the European Communities issued Directive 89/104/EEC, dated December 21, 1988, to approximate the laws of the Member States relating to Trade Marks (OJ EC No L 40 of 11.2.1989, p.1)

Article 6 of the Directive reads the following:

1. The trade mark shall not entitle the proprietor to prohibit a third party from using, in the course of trade,
a- His own name or address;
b- Indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services;
c- The trademark where it is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts; provided he uses them in accordance with honest practices in industrial or commercial matters.
2. The trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade, an earlier right which only applies in a particular locality if that right is recognized by the laws of the Member State in question and within the limits of the territory in which it is recognized.

The European Court of Justice (Third Chamber) issued a preliminary ruling on March 17, 2005, (Case C-228/03, Gillette Company and Gillette Group Finland Oy v LA Laboratories Ltd., Oy), stating that the purpose of Article 6 of the Directive seeks to reconcile the fundamental interests of trademark protection with those of free movement of goods and freedom to provide services in the common market, in such a way that trademark rights are able to fulfill their essential role in the Community of undistorted competition which the Treaty seeks to establish and maintain.

Article 6 (1)(b) of the Directive provides that the proprietor of the trademark may not prohibit a third party from using, in the course of trade, the geographical origin of goods, provided the third party uses them in accordance with honest practices in industrial or commercial matters.

THE GILLETTE COMPANY AND GILLETTE GROUP FINLAND OY
V
LA – LABORATORIES LTD OY
Case-228/03

Gillette and Sensor, a registered trademark in Finland, for hand tools and implements (hand-operated) cutlery, side arms, razors and products were sold through its exclusive licensee in Finland.

LA-Laboratories also sells, razors in Finland, they are composed of handles and replaceable blades, and blades similar to those marked by Gillette Group, Finland. LA Laboratories Sell those blades under the mark Parason Flexor and their packaging have stickers fixed on them with the words “All Parason Flexor and Gillette Sensor handles are compatible with this blade”.

LA-Laboratories had no authorization, by a trademark license or any contract to use the trademarks of Gillette.

Gillette brought up an action before the Court of First Instance of Helsinki for trademark infringement, arguing that LA-Laboratories created a link in the mind of consumers between the products marketed by the latter and those of the Gillette companies, or gave the false impression that LA-Laboratories was authorized, by virtue of a license or for another reason, to use Gillette and Sensor marks

In its judgment on March 30, 2000, the Court of First Instance in Finland held that, the Gillette Companies held the exclusion right to affix the Gillette and Sensor marks to their products and their packaging, and to use these marks in advertising, therefore, by mentioning those marks in an eye-catching manner on the packaging of its product, LA-Laboratories had infringed that exclusive right. The Court of First Instance in Finland further held, that Article 4(2) of the Finnish trademark law, which provided for an exception to that principle of exclusivity, must be interpreted narrowly in the light of Article 6(1)(c) of Directive 89/104. In its view, that provision does not relate to the essential parts of a product but only to spare parts, accessories and other similar parts, which are compatible with the manufactured product or marketed by another person. The court held that, both, the handle and the blade were both parts of the razor and not spare parts or accessories, on these grounds, the court decided to prohibit LA-Laboratories from pursuing or renewing the infringement of the Gillette Companies’ rights over the Gillette and Sensor marks, and ordered that company to remove and destroy the stickers used in Finland and to pay the Gillette Companies for damages.

LA-Laboratories appealed to the Court of Appeal in Hilsinki. The Court held that, both of the handle and the blade were to be regarded as essential parts of the razor and not as spare parts or accessories. The razor was composed of a handle and a blade; the consumer could replace the blade by a new one, sold separately. The latter, being a substitution for a former part of the razor, could therefore be regarded as a spare part within the meaning of Article 4(2) of the Finnish Trademark Law (tavaramerkkilaki).

Article 4 of that law provides:

1-“The right under Articles 1 and 3 of this law affix a distinctive sign on one’s goods means that no one other than the proprietor of the sign may, in the course of trade, uses as a sign for his products references which could create confusion, whether on the goods or their packaging, in advertising or business documents or otherwise, including by word of mouth…

2-It is regarded as unauthorized use for the purposes of the first paragraph inter alia if a person, when putting on the market spare parts, accessories or the like which are suited to a third party’s products, refers to that party’s sign in a manner that is liable to create the impression that the product put on the market originates from the proprietor of the sign or that the proprietor has agreed to the use of the sign.”

Secondly, the Court of Appeal held that “the indication on the sticker affixed to the packaging of the razor blades marketed by LA-Laboratories, to the effect that, besides being compatible with handles of the Parason Flexor type, those blades were also compatible with handles marketed by Gillette Companies, could be useful to the consumer and that LA-Laboratories might therefore be able to demonstrate the need to mention the Gillette and Sensor trademarks on the sticker.”

Thirdly, the packaging of razor blades marketed by LA-Laboratories clearly bore its own Parason and Flexor signs, unequivocally indicating the origin of the product. The reference to the Gillette and Sensor marks in small standard lettering on stickers of a relatively modest size affixed to the exterior of that packaging “could not in any way have given the impression that there was a commercial connection between the Gillette Companies and LA-Laboratories, and that the latter had therefore referred to those marks in circumstances allowed by Article 4(2)” of the Finnish Trademark Law. The Court of Appeal therefore annulled the judgment of the lower court and dismissed the action brought by Gillette Companies.

Gillette then appealed to the Korkein Oikeus, a higher court, which took the view that the case raised questions as to the interpretation of Article 6(1)(c) ofDirective 89/104 in relation to the criteria for determining whether, by its nature, a product is or is not compatable to a spare part or an accessory, in relation to the requirement that use of a mark belonging to another person must be necessary in order to indicate the intended purpose of a product, and in relation to the concept of honest practices in industrial or commercial matters, the interpretation of those provisions also having to take account of Directive 84/450.

The Korkein Oikeus decided to stay the proceedings and refer the following question to the Court of Justice for preliminary ruling:

“When applying Article 6(1)(c ) of the First Council Directive 89/104EEC to approximate the laws of the Member States relating to trademarks:,

1) What are the criteria?

a) On the basis of which the question of regarding a product as a spare part or accessory is to be decided, and
b) On the basis of which those products to be regarded as other than spare parts and accessories, which can also fall within the scope of the said subparagraph, are to be determined?
2) Is the permissibility of the use of a third party’s trademark to be assessed differently, depending on whether the product is like a spare part or accessory or whether it is a product which can fall within the scope of the said subparagraph on another basis?

3) How should the requirement that the use must be “necessary” to indicate the intended purpose of a product be interpreted? Can the criterion of necessity be satisfied even though if would in itself be possible to state the intended purpose without an express reference to the third party’s trademark, by merely mentioning only for instance the technical principle of functioning of the product> What significance does it have in that case that the statement may be more difficult for consumers to understand if there is no express reference to the third party’s trade mark?

4) What factors should be taken into account when assessing use in a accordance with honest commercial practice? Does mentioning a third party’s trademark in connection with the marketing of one’s own product constitute a reference to the fact that the marketer’s own product corresponds, in quality and technically or as regards its other properties, to the product designated by a third party’s trademark?

5) Does it affect the permissibility of the use of a third party’s trademark that the economic operator who refers to the third party’s trademark also markets, in addition to a spare part or accessory, a product of his own with which that spare part or accessory is intended to be used with?”

The Ruling

In answer to those questions, the European Court of Justice (Third Chamber) ruled as Follows:

1. The lawfulness or otherwise of the use of the trademark under Article 8(1)(c) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trademarks depends on whether that use is necessary to indicate the intended purpose of a product

Use of the trademark by a third party who is not owner is necessary in order to indicate the intended purpose of a product marketed by that third party where such use in practice constitutes the only means of providing the public with comprehensible and complete information on that intended purpose in order to preserve the undistorted system of competition in the market for that product. It is for the national court to determine whether, in the case in the main proceedings, such use is necessary, taking account of the nature of the public for which the product marketed by the third party in question is intended. Since Article 6(1)(c) of Directive 89/104 makes no distinction between the possible intended purposes of products when assessing the lawfulness of the use of the trademark. The criteria for assessing the lawfulness of the use of the trademark with accessories or spare parts in particular are yhus no different from those applicable to other categories of possible intended purposes for the products.
2. the condition of “honest use” within the meaning of Article 6(1)(c) of Directive 89/104 constitutes in substance the expression of a duty to act fairly in relation to the legitimate interests of the trademark owner. The use of the trade mark will not be in accordance with honest practices in industrial and commercial matters if, for example:

· It is done in such a manner as to give the impression that there is a commercial connection between the third party and the trade mark owner;
· It affects the value of the trademark by taking unfair advantage of it distinctive character or repute;
· It entails the discrediting or denigration of that mark;
· Or where the third party presents its product as an imitation or replica of the product bearing the trademark of which it is not the owner.

The fact that a third party uses a trademark of which it is not the owner in order to indicate the intended purpose of the product which it markets does not necessarily mean that it is presenting it as being of the same quality as, or having equivalent properties to, those of the product bearing the trademark. Whether there has been such presentation depends on the facts of the case, and it is for the referring court to determine whether it has taken place be reference to the circumstances. Whether the product marketed by the third party has been presented as being of the same quality as, or having equivalent properties to, the product whose trademark is being used is a factor which the referring court must take into consideration when it verifies that that use is made in accordance with honest practices in industrial commercial matters.

2. Where a third party that uses a trademark of which it is not the owner markets not only a spare part or an accessory but also the product itself with which spare part or accessory is intended to be used, such use falls within the scope of Article 6(1)(c) of Directive 89/104 in so far as it is necessary to indicate the intended purpose of the product marketed by the latter and is made in accordance with honest practices in industrial and commercial matters.

[Signatures]

copyright 2005 Gabriel Sawma.ALL RIGHTS RESERVED
For interviews on international law covered on this site, or for interviews about the Middle East or Islamic laws, please contact the author. Tel. 609-275-6321; Email gabrielsawma@yahoo.com or fax 609-275-0355. This website is researched, edited, published and maintained by Gabriel Sawma.

DISCALIMER: The materials contained on this website are for general purposes only and are subject to disclaimer. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel.