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The Fair Trial Procedure for Intellectual Property in Light of TRIPS Provisions:An Analytical Study of Jordan and The UK


Affiliations
1 Public Law Department, College of Law, Al Ain University of Science and Technology P.O. Box: 64141, Al Ain, United Arab Emirates
 

This study analyses the elements of a fair trial in the context of IP proceedings, comparing between procedural safeguards available in Jordan and the UK (especially England and Wales). Obligations between states at the international and regional level are analysed, along with their implications at the national level in the UK and Jordan, linked to the EU through the Euro-Med Association Agreement with Jordan. The international human rights instruments provide a common framework in accordance with TRIPS provisions interpreted could bridge the gaps that may arise between the British and Jordanian Jurisdictions.The study uses doctrinal comparative and qualitative methods to examine these issues and also the relation between criminal and other methods of enforcement - civil and administrative. Use of criminal procedures may significantly reduce the costs of lengthy civil litigation, and be in the public interest and the interest of all parties. Finally, recommendations are made for Jordan mainly.

Keywords

WTO, Common Law System, Civil Law System, TRIPS, Constitutional Reform Act, 2010, Copyright, Designs and Patents Act, 1988, ECtHR, Criminal Enforcement, Procedural Safeguards.
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  • Kaplan A, ‘Positivism’ Encyclopaedia of Social Sciences, Random House, 1968, p.390.

  • Articles 2 and 56 of the Euro-Mediterranean Agreement establishing an Association between European Communities and their Member States, of the one part, and Hashemite Kingdom of Jordan, of the other part, Official Journal of the European Communities, L 129/3 EN 15.5.2002.

  • Pannick D, JUDGES, (Oxford, OUP, 1987) 169-170.

  • R v Tokeer Hussein, Munir Hussein [2010] EWCA 94 at [44] “Today, as ever, the sentence of the court must address and balance the ancient principles of justice and mercy.” The court has acknowledged the role of justice and the significance of fairness of the trial which has been dealt in a more detailed fashion in Chapter 4.5 of this thesis.

  • ‘Alia/time limits’ Court of Cassation the Civil Chamber Case no. (3687/2006) Alia Artistic Encyclopaedia case- Copyright infringement and Time limits 2/4/2007, hereafter ‘Alia/time limits’.

  • Court of Cassation the Civil Chamber Case no. (3687/2006) Alia Artistic Encyclopaedia case- Copyright infringement and Time limits 2/4/2007, hereafter ‘Alia/time limits’.

  • Court of Cassation Criminal Chamber Case no. (292/1991) Fair Trial, Criminal Search warrants and Right of defense. Such as publicity and other factors that are considered part of the elements of a fair trial according to the provisions of the related international and national instruments. Pannick D, JUDGES, (Oxford, OUP, 1987) 169-170.

  • The United Kingdom from a legal and judicial perspective consists from three distinctive jurisdictions each has its judiciary and legal profession except for England and Wales, http://www.nyulawglobal.org/Globalex/United_Kingdom.ht m (accessed on 20 February 2018).

  • The United Kingdom from a legal and judicial perspective consists from three distinctive jurisdictions each has its judiciary and legal profession except for England and Wales, http://www.nyulawglobal.org/Globalex/United_Kingdom.ht m (accessed on 20 February 2018).

  • Oxford Introduction to the English Legal system, by Holdsworth M Autumn 2006, www.citized.info (accessed on 20 February 2018). Also could be seen at Judicial Statistics, Annual Report 2005 (CM6799) (London, The Stationery Office, 2006)

  • Ormend D, Smith and Hogan Criminal Law (Oxford, OUP, 12th edition 2008) 34-36. Magistrates’ Court Act 1980, Section 45(1).

  • It has to be mentioned that the latest Constitutional Reform altered the shape of the of the diagram table above, the main principle courts on both Civil and Criminal divisions. The Supreme Court has replaced both the House of Lords, as a judicial institute and a court; and the Judicial Committee of the Privy Council. The Constitutional Reform Act 2005, which in decided in part 3 the establishment of the Supreme Court, roles duties and members of the court etc, http://www.legislation.gov.uk/ukpga/2005/4/contents (accessed on 20 February 2018).

  • Holdsworth M, Oxford Introduction to the English Legal system, Autumn 2006 www.citized.info, (accessed on 9 November 2012); www.citized.info/pdf/commarticles/Oxford_Legal.doc (accessed on 17 February 2018).

  • Section 107-4(a) CDPA 1988.

  • Section 107-4(b) CDPA 1988.

  • Section 107-4A (a,b) 1988.

  • Section 92-6 (a,b) 1994.

  • Interpretation Act, 1978 Schedule 1.

  • This has not been the case in the previous few months as it the Court of High Justice has not been the solitary administrative level of trial in Jordan as an appeal administrative court has been founded.

  • MGN Limited v The United Kingdom ECtHR 39401/04 (2011) 53 E.HRR 5.

  • Court of Cassation the Civil Chamber Case no. (3687/2006) Alia Artistic Encyclopaedia case- Copyright infringement and Time limits 2/4/2007also seeCourt of Cassation Criminal Chamber Case no. (292/1991) Fair Trial, Criminal Search warrants and Right of defense.

  • Court of Cassation Criminal Chamber Case no. (885/2004): A Cassation according to an order by the minister of justice; [Trademark Infringement].

  • Article 100 from the Jordanian Constitution (1952) states that “The establishment of the various courts, their categories, their divisions, that such law provides for the establishment of a High Court of Justice.”

  • The Court of High Justice was founded according to the provisional Act no. (12) 1989 “The Court of High Justice Act” and was amended in 1992 according to “The Court of High Justice” no. (12) 1992. Before those two dates the Court of Cassation played the role of the court of high justice until 1989. Massadeh A, A draft paper under the title “Judicial Review of upon the administration’s actions in the Jordanian Legal System – A Comparative Study” 15-19; AlBalqa Journal for Research and Studies, 1 (2) (May 1992) 81 and beyond. Yet it has to be stated that the author mentions that provisions of the Civil Courts Structure no. 62, 1952 did implement the provisions of the constitution in establishing a Court of high Justice to review the administration’s actions , but created a legal solution in transferring the jurisdictions of the to be established court to the Court of Cassation. The Court of high justice was established in 1993. Before this date the Court of Cassation used to implement the role of the Court of High Justice. It has to be mentioned that there has been Constitutional Reforms in Jordan in the end of September and the early days of this month. These reforms will affect Articles 100/101 of the Constitution which will require amendments on the administrative section of the judiciary.

  • Article 34 of The Trade Marks Rules No. 1, 1952. The Rules Made Under Article 44 of the Trade Marks Law, 1952.

  • Articles 34 -45 deal with objections others may have concerning a registered trademark. Articles 69- 75 deal with the procedures applied to rectify or remove a trade mark from the register. It should be mentioned that English translation www.wipo.int (accessed on 16 February 2018).

  • Article 36 of the Copyright Act 1992, according to its latest amendments which states a) The employees of the copyright office at the national library department authorized by the minister are considered judiciary officers during their implementation of the law, Jordanian Court of High Justice Case No. (2008/228) Striking off a Trademark.

  • Massadeh F, Criminal of Enforcement of Intellectual Property and its Effect on Human Rights (Analytical Comparative Examination of TRIPS and Human Rights): A UK and Jordan Case-study, A Ph.D. thesis 2014.

  • Article 51Criminal Procedures Act No. 9,1961 and its amendments, Article 36 (a/b) of Copyright Act No. 22, 1992 and its amendments which grants the employees of the Copyright Office in the National Library are considered Judiciary Officers concerning conducting search orders Court of First Instance, Criminal Chamber, case No.(1022/2009)[Copyright infringement-TRIPS Agreement 1994; Chapter 3 [Enforcement of Intellectual Property Rights, as it is stated in Article 41(5) of the Agreement.

  • TRIPS Agreement 1994; Chapter 3 [Enforcement of Intellectual Property Rights, as it is stated in Article 41(5) of the Agreement.

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  • It has to be mentioned that single person reviews of trademarks at the judicial department, and the decision of the person is considered an administrative act of a judicial nature.

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  • Article 61 TRIPS.

  • Article 41(5) TRIPS. Section 1, General Obligations.


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  • The Fair Trial Procedure for Intellectual Property in Light of TRIPS Provisions:An Analytical Study of Jordan and The UK

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Authors

Firas Massadeh
Public Law Department, College of Law, Al Ain University of Science and Technology P.O. Box: 64141, Al Ain, United Arab Emirates
Mohammad Alkrisheh
Public Law Department, College of Law, Al Ain University of Science and Technology P.O. Box: 64141, Al Ain, United Arab Emirates

Abstract


This study analyses the elements of a fair trial in the context of IP proceedings, comparing between procedural safeguards available in Jordan and the UK (especially England and Wales). Obligations between states at the international and regional level are analysed, along with their implications at the national level in the UK and Jordan, linked to the EU through the Euro-Med Association Agreement with Jordan. The international human rights instruments provide a common framework in accordance with TRIPS provisions interpreted could bridge the gaps that may arise between the British and Jordanian Jurisdictions.The study uses doctrinal comparative and qualitative methods to examine these issues and also the relation between criminal and other methods of enforcement - civil and administrative. Use of criminal procedures may significantly reduce the costs of lengthy civil litigation, and be in the public interest and the interest of all parties. Finally, recommendations are made for Jordan mainly.

Keywords


WTO, Common Law System, Civil Law System, TRIPS, Constitutional Reform Act, 2010, Copyright, Designs and Patents Act, 1988, ECtHR, Criminal Enforcement, Procedural Safeguards.

References