Said St Francis of Assisi: "Where there is discord, may I bring harmony." Or words to that effect in Latin.
Many in the IP world would echo that, particularly in relation to designs, where there is perhaps more diversity than anywhere else. WIPO's SCT is currently playing the role of good Fransiscan, though five years of analysis and discussion have, alas, resulted in little by way of concrete progress. So it is at least refreshing to see Anna Kingsbury of New Zealand's University of Waikato making an overt plea for greater disharmony in the pages of eipr at Vol 32 Issue 8 2010. But is legal chaos really her aim?
We will skip the first nine pages of
status quo, of which the worst thing to be said is that it is unrealistic (example: design registration involves "inevitable delays" - OHIM are now registering within a week, which seems unlikely to adversely affect product lifecycles as she suggests) and get on to her arguments in favour of "the Case for Diversity", which are fourfold.
Her second-listed argument is for me perhaps her best: she suggests that diversity creates "
laboratories of politics" allowing "
legal experimentation". Experimentation (other than vivisection) is, I suppose, a good thing - though having spent some years of my life donning and doffing the white coat it is not a career I would recommend to a budding Senior Lecturer. But there is no point in conducting comparative experiments without analysing and comparing results, concluding which experiments succeeded and which failed, and then harmonising on the success. Where they are paying for experiments, taxpayers and other stakeholders deserve to know the results. That hasn't happened in the past. WIPO's SCT design harmonisation process is the best hope of getting precisely that kind of comparative analysis.
But back in the real world, is there, in fact, any evidence that this kind of laboratory approach has been either the cause or the result of design law diversity? Far from it. Most design systems are rotten with age - no shiny test-tubes on display here, merely the dust and mildew of a century of neglect. Many design laws (including the one with which Ms Kingsbury is, presumably, most familiar) are based on hoary old versions of the UK statutes - dating back perhaps to 1949, perhaps to 1911. She cites not a single "experiment" to support her contention. Let me give a few. Consider, for example, the EU design law of 2002, or its predecessors the Benelux design law, or the Scandinavian design law. Each in fact made major changes to its precursors. And what was the driver of these experiments? Nothing other than harmonisation.
She dismisses her own third argument as quickly as she makes it - it is "
based more broadly on concepts of local democracy, and the idea that local communities should have some input into devising policies appropriate to that community." But, as she says, "
Such an argument may seem naive in a globalised world". Well put. It
is naive. It is also unbounded. Why
should US design law be federal? Wouldn't State law be more appropriate? Or county law? Wouldn't it be more logical, according to this "broad" concept, to abolish the New Zealand design law and allow the people of Waikato, or the staff of Waikato University, to make their own?
Real life has an answer. Mercantile laws are the rules of the marketplace, and should be coterminous with the marketplace. Once, national boundaries marked the edges of markets. Now, in a global marketplace, companies and regulators need global rules.
That leaves her first and fourth arguments, neither of which is in fact against harmonisation at all.
The crunchpoint of the first argument is this quote: "
There is evidence that providing intellectual property protection to foreigners is also not in the interests of developing countries." I haven't read the papers cited as "evidence" - perhaps a reader can fill me in. But this is no argument against harmonisation. Whatever rules are applied, whether harmonised or sui generis, it is simply an argument for preferential treatment for locals - economic nationalism.
There is a big difference. Malaysia, for example, a good example of a developing country that really has developed, was not for many years a member of Berne, so gave little or protection to foreigners - but it had a copyright system much like that of the UK and was therefore "harmonised". The UK's own Unregistered Design Right system is both disharmonised and nationalistic. These are not the same thing. If Ms Kingsbury wants to bang the drum for economic nationalism, and thinks that "developing" economies benefit from that kind of economic isolation, fine. I sympathise with the cause, but doubt the course.
Let us now go to her final argument. She says that IP regimes in developed countries "are very far from constituting ideal models". Again, I suppose, one would not necessarily disagree - in the same sense that we would all agree that democracy is the worst of political systems - "apart from all the others".
But what is the comparator? Is it her suggestion that the IP regimes of the developing world are better models? My own observation is that as a result of the colonial past they are simply older, worn out versions of those of the developed world. If they are easier on infringers, it is by accident, inefficiency or corruption (not that these are confined to the developing world, by any means) and not by design. One wonders whether one has somehow wandered into a proxy battlefield for the ongoing drug patent wars, for in reality (barring minor issues such as whether icons are protectable) design law in the developing world is not generally better or worse than that in the developed world - both are generally antiquated and chaotic, and equally in need both of reform and of harmonisation.
She prays in aid a passage by Vaver, but Vaver does not there have anything positive to say about the IP systems of the developing world - his point is simply that "...IP is excessive. It needs trimming back". Well, you may agree or disagree with that - it is a pure and perfect prejudice point, and depending on your prejudices you will either cheer or boo. But it has nothing to do with harmonisation. If Vaver is correct, he is as correct in the US as in New Zealand, or New Guinea, or on the moon, and we should harmonise on his trimmed-back system. At least we would then know where we were. If he is incorrect, of course, this would not be the greatest moment to deal a dangerous wound to the world's economy - not that this need concern tenured academics.
So, what do we have? In order: an anti-foreigner argument. An argument on experimentation that, on the facts, is the reverse of the reality. An argument on democracy so specious that she herself knocks it down. And a straight anti-IP argument.
There is certainly a case for reform of design law in New Zealand (indeed, Ms Kingsbury has written a paper on it), and a stronger case for reform and modernisation elsewhere. But quite apart from that, there is a case for harmonisation, and global markets require global rules. It is always open to States who don't want to operate in the global market to close their borders and exit gracefully from their international commitments - if they are inclined to follow these siren voices leading them to a graveyard of lost states, rather than actually taking the path to development.
Thanks once again to the invaluable ipwars blog for bringing our attention to Coca Cola's recent lawsuit down under against Pepsico over use of a bottle with a flared base. Here's a link to the ipwars article and here is the press story it references. The picture is borrowed with thanks from MIP's fine article "How Coca Cola protects its IP in Asia", according to which they have protection in many Asian countries. Will there be worldwide litigation? The Coke bottle has long been the paradigm case for 3D marks, so this might be an ideal test case. 
