US challenges: Pavia Univeristy March the 2nd, 2017

1. Pavia University
March the 2nd, 2017
Questions facing the US market
Fabio Marazzi
Marazzi&Associati

2. US Today

3. Where do we stand?
Opinions
Thisishowfascismcomes
toAmerica
ByByRobert KaganRobert Kagan May18, 2016May18, 2016
Robert Kagan is a senior fellow at the Brookings Institution and a contributing columnist for The Post.Robert Kagan is a senior fellow at the Brookings Institution and a contributing columnist for The Post.
The Republican Party’s attempt to treat Donald Trump as a normal political candidate would be laughable wereThe Republican Party’s attempt to treat Donald Trump as a normal political candidate would be laughable were
it not so perilous to the republic. If only he would mouth the party’s “conservative” principles, all would be well.it not so perilous to the republic. If only he would mouth the party’s “conservative” principles, all would be well.
But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do withBut of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with
the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy.the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy.
Trump has transcended the party that produced him. His growing army of supporters no longer cares about theTrump has transcended the party that produced him. His growing army of supporters no longer cares about the
party. Because it did not immediately and fully embrace Trump, because a dwindling number of its political andparty. Because it did not immediately and fully embrace Trump, because a dwindling number of its political and
intellectual leaders still resist him, the party is regarded with suspicion and even hostility by his followers. Theirintellectual leaders still resist him, the party is regarded with suspicion and even hostility by his followers. Their
allegiance is to him and him alone.allegiance is to him and him alone.
And the source of allegiance? We’re supposed to believe that Trump’s support stems from economic stagnationAnd the source of allegiance? We’re supposed to believe that Trump’s support stems from economic stagnation
or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — hisor dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his
proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boastingproposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting
disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produceddisrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced
national weakness and incompetence. His incoherent and contradictory utterances have one thing in common:national weakness and incompetence. His incoherent and contradictory utterances have one thing in common:
They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger.They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger.
His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women,His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women,
Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects ofChinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of
derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people ofderision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of
nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or makenonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make
them shut up.them shut up.
OP-ED COLUMNIST
What Trump IsDoing IsNot O.K.
FEBRUARY 14, 2017
Thank God for the resignation in shame by Mike Flynn, President
Trump’s national security adviser. And not just because he misled the
vice president and engaged in deeply malignant behavior with Russia,
but, more important, because maybe it will finally get the United
States government, Congress and the news media to demand a proper
answer to what is still the biggest national security question staring us
in the face today: What is going on between Donald Trump and the Russians?
SUBSCRIBE LOG IOpinion |
1405
President Trump disembarking from Air Force One as he returns from Florida on Feb. 12.
AL DRAGO / THE NEW YORK TIMES
Thomas L.
Friedman

4. https://nyti.ms/2aaFrgm
TheOpinion Pages | CAMPAIGN STOPS
The
Apotheosis
of
Donald
J.
Trump
Thomas B. Edsall JULY 21, 2016
As we take a step back and contemplate the actuality of Donald J. Trump’s
nomination as the Republican candidate for president, one aspect of the
situation stands out. Virtually the entire political class, Republicans and
Democrats, knows Trump’s liabilities in extraordinary detail.
The constitutional structure of American government forces politicians, no
matter what their motives, to “feel constrained to say and do the right thing
according to the Constitution whether or not they are sincere,” Jeffrey Tulis, a
professor of history at the University of Texas, wrote me.
But Trump, according to Tulis, is “unique in that no other previous major
party presidential candidate has felt so unconstrained by these constitutional
norms.”

5. ISTITUTO PER GLI STUDI DI POLITICA INTERNAZIONALE
R I C E R C A I S P I S C H O O L P U B B L I C A Z I O N I E V E N T I
cerca Ricerca avanzata
usa & americhe (/it/super-area/usa-americhe) asia (/it/super-area/asia)
Cina: la vera sfida di Trump
Martedì, 21 Febbraio, 2017
21 Febbraio 2017
Cina: la vera sfida di Trump
Cina e Stati Uniti “dovrebbero essere amici e partner piuttosto che oppositori o nemici”, ha sottolineato la
portavoce del Ministero degli Esteri di Pechino il 19 gennaio scorso, un giorno prima dell’insediamento di Donald
Trump alla Casa Bianca. A preoccupare il gigante asiatico, le minacce e gli attacchi verbali alla Cina
(“manipolatrice di valute”) che hanno costellato la campagna elettorale del neo-presidente americano, coronati da
una mossa provocatoria come la telefonata del tycoon appena eletto con la presidente di Taiwan, interpretata da
Pechino come una messa in discussione della “One China policy”. Almeno su quest’ultima questione, Trump
sembra essere tornato sui propri passi con una telefonata conciliatoria al presidente cinese Xi Jinping. Pechino
tuttavia continua a temere soprattutto che la linea di politica estera e commerciale inaugurata dalla nuova
amministrazione (ritorno al protezionismo, riavvicinamento alla Russia, riformulazione dell’approccio nei confronti
della Corea del Nord) rischi di produrre pericolosi scompensi e disequilibri nelle relazioni e nel commercio
internazionali. Non a caso, proprio il World Economic Forum di Davos sembra avere offerto a Xi Jinping — la prima
volta per un leader cinese — il palcoscenico internazionale per accreditare la Cina come credibile alternativa agli
USA e all’ordine mondiale eretto da Washington. Tuttavia, rimangono aperti ancora molti dubbi su come
quest’assunzione di responsabilità senza precedenti di Pechino possa concretizzarsi sul piano politico ed
economico, in Asia e altrove. E, soprattutto, su come il rapporto tra le due potenze si evolverà nei prossimi mesi.
I S T I T U T O PA L A Z Z O C L E R I C I C O N TAT T I D O V E S I A M O
G l o b a l G o v e r n a n c e I t a l i a E m e r g e n z e / S v i l u p p o D i r i t t o I n t e r n a z i o n a l e S i c u r e z z a E n e r g i a
E u r o p a U S A & A m e r i c h e R u s s i a & E u r a s i a A s i a M e d i t e r r a n e o & M e d i o O r i e n t e A f r i c a

8. legal systems & Culture
Kinds of legal systems:
Common Law: Based on tradition, precedent, custom & usage.
Civil Law: Based on a very detailed set of laws organized into a code. Also
called Codified Legal System.
Theocratic Law: Based on religious precepts.
8

9. The President:
is the Commander in Chief of the armed forces.
He or she has the power to call into service the state units of the
National Guard, and in times of emergency may be given the power
by Congress to manage national security or the economy.
has the power make treaties with Senate approval.
He or she can also receive ambassadors and work with leaders of
other nations.
is responsible for nominating the heads of governmental
departments, which the Senate must then approve.
In addition, the president nominates judges to federal courts and
justices to the United States Supreme Court.
can issue executive orders, which have the force of law but do not
have to be approved by congress.
can issue pardons for federal offenses.
can convene Congress for special sessions.
can veto legislation approved by Congress.
However, the veto is limited. It is not a line-item veto, meaning that
he or she cannot veto only specific parts of legislation, and it can be
overridden by a two-thirds vote by Congress.
delivers a State of the Union address annually to a joint session of
Congress.

10. U.S. Trade Law
The separation of Powers
Federal – State relation
Federal Agencies

11. US Constitution – Art.1
Legislative power of the Congress
All legislative powers herein granted shall be
vested in a Congress of the United States,
which shall consist of a Senate and House of
Representatives.

12. US Constitution – Art.2
Executive power of the President
The executive power shall be vested in a
President of the United States of America. He
shall hold his office during the term of four
years, and, together with the Vice President,
chosen for the same term, be elected, as
follows …

13. Presidential Power
External affairs: United States v. Curtiss-Wright
Export Co., 299 U.S. 304 (1936)
Derived from
1) Inherent power including the power to conduct
foreign affairs, appoint ambassadors, receive
foreign ambassadors and act as commander-in-
chief of the armed forces
1) The treaty power
1) Power delegated by Congress in a statute

14. President’s Inherent
Powers
Sole Executive Agreements
Executive Orders
In times of emergency, the president can override
congress and issue executive orders with almost limitless
power. Abraham Lincoln used an executive order in order
to fight the Civil War, Woodrow Wilson issued one in
order to arm the United States just before it entered World
War I, and Franklin Roosevelt approved Japanese
internment camps during World War II with an executive
order. Many other executive orders are on file and could
be enacted at any time.

15. U.S. and International Agreements
- Treaty: ratified by 2/3 Senate
- - congressional executive agreement:
majority both houses
- Sole Executive agreement: President

16. The Philosophy of Economic Integration
America First
e.g. North America Free Trade Area
Frederic Bastiat “When goods do not cross borders,
soldiers will”

17. › New Atlanticist
FEBRUARY 23, 2017
NAFTA in Need of an Update
Former US, Canadian, and Mexican officials make pitch to
keep strategic trade deal
BY RACHEL ANSLEY
(/blogs/new-atlanticist/us-canada-mexico-trade?tmpl=component&print=1)
(from left) Jason Marczak, director of the Latin America Economic Growth Initiative at the Atlantic
Council's Adrienne Arsht Latin America Center, moderated a discussion with Rafael Fernández de
Castro, a professor at Syracuse University who served as an adviser to former Mexican President
Felipe Calderon; Paula Stern, founder and chairwoman of The Stern Group and Atlantic Council
board member who served as chairwoman of the US International Trade Commission in the
Reagan administration; and Peter MacKay, a former Canadian minister of justice and attorney
general, at the Atlantic Council on February 22, 2017. (Atlantic Council/Victoria Langton)
› Home (/) › Search (/search)› Menu

19. Free Trade ? In a flat world ?
Free Trade & Open Investment
Spirit of Free Trade:
WTO – OPEC - TTIP - Arctic Treaty - Space Treaty - TransPacific Partnership -
TTP
Multilateralism Vs. bilateralism
… protectionism
Washington Consensus

21. “As more companies favor reshoring over offshoring, and t
hereby expand manufacturing in the US, in the short-term, t
his could lead to higher domestic production and
employment…”
• import substitution policy is one of the key elements of a
protectionist agenda.
• Tax and tariff on import + subsidies to retain production on Us soil c
ould encourage job creation and more investment in the Us thus co
ntributing to Us Gdp growth via more consumption and inv
estments.
• Some recent examples include Carrier Corporation in Indiana, Ford,
General Motors
• Ubs estimates that the effect of a 10% tariff on Us imports and s
ubsidies on exports of the same value would increase Us Gdp by 0.
9%, while the Gdp of the Rest of the World would decrease by 0.
4%.
Protectionism and Import substitution

22. But import substitution is characterized by technical difficulties
• it is difficult to transfer a plant in a short time, in fact, it requires t
he creation of a new facility, machines to be bought, transported a
nd installed and employees to be recruited and trained.
• Even if there are already manufacturer active in the production of t
he goods to be substituted, the expansion of a plant is not i
mmediate.
• The immediate effect of tariff on import and border taxes is an i
ncrease in inflation.
• Tariff on imports can lead to a disruption in global production c
hains.
Import substitution, difficulties

23. Protectionism and inflation
• In 2016 Us imported goods and services for a value of 2,7 trillions
Dollars while exports amounted to 2,2 trillions.
• The import incidence on Us consumption is approaching the 20% s
o a tariff or a border tax, will generate an increase in prices.
• For processed foods, a category on which imports accounts for 2
3% of total US consumption, a tariff or a tax of 20% of the c
ustom value will lead directly to an increase in prices of at least 5
%.
• Ubs estimates that a tariff on US imports amounting to 10% in
value will generate an increase of US consumer prices of 0,8%,
while consumer prices in the Rest of the World would decrease by
1.4%.

24. • Wharton finance professor Jeremy Siegel noted that some
Republicans are proposing “radical” legislation on the so-called "
border adjustable tax.” That plan calls for a 20% tax on imports a
nd a special tax exemption for income from exports. That would b
e “devastating” for companies such as Wal-Mart, he said.
• Patrick Harker, president and CEO of the Federal Reserve Bank
of Philadelphia said recent data showed that about 40% of the v
alue-added on the goods the U.S. imports from Mexico is act
ually produced in the U.S. “So highly engineered products prod
uced in the U.S. go across the border [to Mexico] and then come
back,” he said. “…. It’s not as though we are simply importi
ng something that is produced solely in China or solely in Mexico.
These parts are going back and forth. That’s what gives me pause
about having an opinion on this until you disentangle
those supply chains.”
Import substitution in a globally integrated
supply chain

25. • A trade war in today’s globalized markets may be a more c
omplicated business because of the development of global su
pply chains. Increasing tariffs on Mexican imports would, for exa
mple, be extremely disruptive for American car manufacturers. Whet
her it would increase employment in the US is moot.
•The Trump administration’s other target for trade penalties, China, l
ooks an easier proposition. Supply chains are less convoluted. That i
s, the percentage of the value of US imports from China that
originated in the US is insignificant. China’s exports to the US are
much bigger than those of the US to China. Yet economic
interdependence is too complex to permit easy wins. At the same
time American smartphone and computer giants have substantially o
utsourced manufacturing to China, so American customers, wo
rkers or shareholders would have to bear increased costs arisi
ng from higher tariffs or border taxes.
Financial Times January, the 31st 2017
Protectionism US vs Mexico and Us vs China

26. Globalisation Globalism Individualism
• What’s? of firms
• A Flat World? Services goods ideas (T. Friedman)
• Interdependence of national economies ?

27. What Is Globalization?
The world is moving toward an interdependent,
integrated global economic system
Globalization refers to the shift toward a more
integrated and interdependent world economy,
including two facets:
• Globalization of markets
• Globalization of production

28. Globalization of people
Thanks to sharing technology

29. Globalization of markets
refers to the merging of historically distinct and separate
national markets into one huge global marketplace.
Instead, there is the “global market”
• falling trade barriers make it easier to sell globally
• consumers’ tastes and preferences are converging
• firms promote the trend by offering the same basic
products worldwide

30. Globalization of production
refers to the sourcing of goods and services from locations
around the globe to take advantage of national differences
in the cost and quality of factors of production: land,
labor, and capital.
Companies can
• lower their overall cost structure
• improve the quality or functionality of their product
offering

31. Case Study, engineering and production company
The Italian company is operating in the Automated optics machines
market and is willing to create a total new company in the Us to which
transfer the IP assets. The owner needs to find the best location on the
basis of workforce, local university and financial incentives offered by
State and County authorities. The project required different steps:
• Identification of a top tier University to partner with for R&D a
ctivities, interns sourcing and engineers to be hired.
• Analysis of incentives and support offered by States and Counties i
n different jurisdictions.
• Identification of three possible locations in three different States.
• Several discussion with representatives introducing the business i
dea and explaining the needs.
• A roadshow in the Usa with a series of meeting with State and local
representatives deepening the discussion about the potential d
ifferent incentives offered.
• Preparation of other documents in addition to the business plan on t
he basis of request coming from Counties and States.
• After 30 days a support proposal has been received.
• Negotiation on the proposal and «beauty contest» between the
States.

32. THE PROTECTION OF THE INTANGIBLE
ASSETS IN U.S. AND IN EUROPE

33. WHAT CONSTITUTES INTANGIBLE ASSETS
FOR A COMPANY?
Intangible assets is a broad definition which includes different
categories such as Intellectual Property Rights (IPRs),
employees know-how and customers relationships.
IPRs are :
1. Patents
2. Trademarks
3. Copyright
4. Trade Secrets
5. Designs

34. FEW ECONOMIC DATA TO UNDERSTAND THE
IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS
(IPRs)
• Each year Brand Finance plc analyses the fluctuating value of
intangible assets on world stock markets
• The results of the study published in early 2017 says that Google's
TM monetary value increased to $109.5 billion last year,
representing a 24% increase overall. By contrast, Apple's
monetary value fell from $145.9 billion in the previous year to
$107.1 billion.
• In the Brand Finance ranking the first Italian Trademark is ENI at
122nd rank
• There are assets such as the Coca Cola formula or the Google
algorithm for engine search whose value it is hard to determine but
whose value is nonetheless undisputable

35. PROTECTION OF IPRs AND INTERNATIONAL
TREATIES
• Companies have a compelling interest in protecting their IPRs in order to
maintain their goodwill, their dominant position in the market or to
maintain their acquired special relationship with customers.
• In order to have an effective protection, international and global
companies who trade their products all around the world must be aware
of the different regimes of protection that can be granted in different
countries.
• Important differences exist between U.S. and Europe
Minimum standards of protection recognized by International
Treaties:
1) Paris Convention (1883)
2) Berne Convention (1886)
3) TRIPS Agreement (1994)

36. PATENTS
In the U.S
Utility Patents and Design Patents
Provides Protection for Functional Concepts
Utility patents protect new and useful inventions (processes or methods,
machines, articles of manufacture and compositions of matter).
Patents cannot be obtained for isolated mathematical algorithms,
compositions as they occur in nature, and scientific principles.
Design patents protect ornamental, not functional, aspects of articles of
manufacture.
Inventions must be:
Useful: have some utility, achieve some objective
Novel: not before known and
Non-obvious: intellectually distinguishable from the prior art

37. Term: Rights created under Federal Law for term of 20 years from
first application priority date.
For Design Patents, which cover the unique appearance of an item
by a single claim evidenced by a drawing, term of 14 years from
grant.
• When the protection expires, the patent will fall in the public domain
.
• You cannot renew the protection.
• Patent owners have granted a monopoly of 20 years. After this, they
have to allow the social and technological development to occur.
The patent owner has the exclusive right of:
Making,
Using,
Selling or offering to sell or
Importing the protected invention

38. The Claims in the Filing Application define the Applicants’ Legal
Rights Obtained on Issuance
No matter what is described in the written description, only
embodiments encompassed by the words of the claims are protected
Filing Deadlines
US applications are barred if not filed within one year of a
public use or disclosure or a sale or offer for sale
In the US, the patent no longer goes to the first to invent but
rather the first to file (unless, in the one year window, there was
an earlier disclosure by the second to file)
Foreign applications barred if not filed before a public disclosure

39. • Remember: patents are a bundle of national
rights so if you want to protect your invention in
other countries, you must file the related
application in each country of interest.
• If you have filed your patent in U.S. and you did
not file in Japan, in Japan your invention will not
be protected.

40. Google Glass Patent in U.S.

41. Patent Claims

42. In Europe
• European national patent systems generally harmonized by the E
uropean Patent Convention (EPC) so that patents can be applied ce
ntrally for all contracting states from the European Patent Office (
EPO).
• A patent in one of these patent regimes does not automatically give p
atent rights in other regimes.
• Unitary Patent will be one patent valid on the entire territory of the
Member States (in this case no more bundle of national rights)
• Duration 20 years not renewable
• One of the main differences is that in Europe an invention has to be of
technical character in order to be patentable while in the U.S. it is
enough that the utility requirement is fulfilled and that the invention
belongs to one of the four statutory category stated in the U.S. Patent
Act § 101.
• Novelty and inventive step are requirements that an invention has to
fulfill in order to be patentable. These same requirements apply in
Europe as well as in the U.S.
• Prior art material slightly different

43. TRADEMARKS
In the U.S.
• Lanham Act (Federal statute)
The term “trademark” includes any word, name, symbol, or device,
or any combination thereof—
• (1) used by a person, or
• (2) which a person has a bona fide intention to use in commerce and
applies to register on the principal register established by this chapter,
• to identify and distinguish his or her goods, including a unique
product, from those manufactured or sold by others and to
indicate the source of the goods, even if that source is unknown.

44. Different types of marks:
• Trademarks for goods (ex. Apple)
• Services marks (i.e. they identify the specific services of that
company: ex. American Express is a mark for credit card services)
• Collective marks indicate membership in a group (such as AAA
(the American Automobile Association)
• Certification marks – like CE (European conformity) “certify” that
products or services meet a particular standard of quality, regional
origin
• Even colors, sounds, smells, or shape, under specific
circumstances can constitute valid trademarks (ex. Coca-Cola
shape bottle, the engine noise of Harley Davidson)

45. In order to register a trademark before United States Patent
and Trademark Office (USPTO) , it must be available (i.e. not
confusingly similar to a previous registered TM or application)
The stronger is the trademark, the stronger will be the
protection granted
Classification of TM based on their strength:
• Arbitrary/fanciful TM (strongest)
• Suggestive
• Descriptive (generally weak)
• Generic (very weak – they cannot be registered)

46. Similarities between U.S. and Europe
• A valid trademark must be distinctive in order to be protected a
nd therefore registered
• No registration if there is likelihood of confusion with prior r
egistrations/applications
• No registrations will be granted if the trademark is a generic t
erm
• Duration: 10 years, renewable. It is an everlasting monopoly
• Categories of goods/services of the application must specify in d
etails which are the good and/or services that the trademark will co
ver

47. Differences between U.S. and
Europe
• Basis for a US TM application: US trademark registrations are granted
only after use is shown unless the sole basis is a registration from your
home country or an international registration. You can file based on intent
to use or a foreign application under six months old, but you must show use
or a home registration before the registration will issue.
• Use in the US is required for all maintenance filings: Even if you filed
your application in the US based only on a home country registration under
the Paris Convention, or an extension of an International Registration, you
still need to show use to maintain the registration between the fifth and
sixth anniversary and for all renewals.
• Designs: The US does not have a system that is directly comparable to a
registered community design. You have to file either a design patent
application or a trademark application claiming trade dress rights in the
design.
• Supplemental register for marks that are used but are descriptive.

48. TRADE DRESS PROTECTION
Trade Dress is "essentially [a business'] total image and overall
appearance." Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (
5th Cir. 1989). It may include "features such as size, shape, color or c
olor combinations, texture, graphics, or even particular sales t
echniques." John J. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980
(11th Cir. 1983).
Trade dress creates a visual impression which functions like a word
trademark.
In Two Pesos the Supreme Court said not only that restaurant decor may
be protected as trade dress, but also that restaurant--and other trade
dresses--may be inherently distinctive and protectable from the moment of
adoption.

49. Problems with Trade Dress
Functionality:
• De facto functionality simply means that the product or
packaging performs the function that it was intended to perform.
A COCA-COLA bottle's function is to hold COCA-COLA
beverage and permit it to be poured out of the bottle, a job it
certainly performs. But that does not make the bottle's shape or
ribbing "functional" for trade dress purposes because those
features are not necessary for the bottle to do its job.
• A feature is de jure functional if competitors must use it in
order to compete effectively
Distinctiveness
• Most of the time not considered inherently distinctive, therefore
distinctiveness must be shown through Secondary Meaning

51. COPYRIGHT
1. IN THE U.S.
Works protected under the U.S. Copyright law are:
original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device (17 U.S. Code § 102 )
Works of authorship include:
-literary works;
-musical works, including any accompanying words;
-dramatic works, including any accompanying music;
-pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.

52. No Copyright Law protection
• To any idea, procedure, process, system, method of
operation, concept, principle, or discovery,
regardless of the form in which it is described,
explained, illustrated, or embodied in such work.
• Basic idea under Copyright law, either in U.S. and in
E.U. is that IDEAS PER SE ARE NOT
COPYRIGHTABLE.
• This is why the U.S. law requires that a work of
authorship must be realized in an tangible form
of expression

53. SO WHAT IS IT COPYRIGHTABLE?
-Books
-Music
-Movie
-Paintings
-Photographs
-Architectural drawings
-Dancers performances, etc.

54. Main differences between U.S. and Europe
1.Economic Rights v. Moral Rights
In most of the European countries there is an important distinction between
ECONOMIC RIGHTS and MORAL RIGHTS
ECONOMIC RIGHTS recognize the right of the copyright holder to use, to
authorize use of, or to prohibit the use of, a work, and to set the conditions for
its use.
Economic rights typically include:
• publication
• reproduction
• transcription
• public representation
• diffusion (distance means)
• right to communicate to the public (TV, broadcasting)
• distribution (market)
• translation
• publication inside a collective work
Duration: the author’s life and 70 years after his death

55. • Economic rights aim to enable the author to take some
revenue from the exploitation of his work.
• The author has the exclusive right to reproduce and
communicate his work to the public.
• Reproduction right allows the author to reproduce, in whole
or in part, his work, in whatever medium and in any form.
Any reproduction of a copyrighted work requires the prior
consent of its author.
• The Right to communicate the work to the public covers
any direct communication of the work to the public, without
any material embodiment (concert, television, webcasting).
The prior consent of the author is required.
• Economic rights can be transferred

56. Moral Rights: The term "moral rights" is a translation
of the French term "droit moral”. The purpose of
moral rights is to protect the personality or
reputation of an author, through its work
Moral rights are:
Right of Paternity: refers to the author’s right to have his name on a
work, to use a pseudonym and to remain anonymous.
Right of Integrity: refers to the author’s to object to any
changes/modification to his work that may harm his reputation as an
author. This harm would be a question of fact to be determined in court
through the testimony of witnesses.
In most of the cases (i.e. national and European legislations) these rights
are not assignable/transferrable, are not waivable and they are
perpetual

57. Moral Rights in U.S. (just in limited cases)
• Narrower interpretation of the requirements contained in the Berne Convention
(therefore to moral rights).
• In the U.S., moral rights are arguably protected under various federal and state laws
including explicit protection (through an amendment in the U.S. Copyright Act by the
Visual Artists Rights Act (“VARA”) of 1990).
• Unlike Berne, VARA protects only one group of authors – visual artists (i.e.
those who create “works of visual art.”)
• Visual art includes paintings, drawings, prints, sculptures, and photographs,
existing in a single copy or a limited edition of 200 signed and numbered
copies or fewer.
• VARA : visual artists have the right to claim authorship in their work, to prevent
the use of their name in association with a work and to prevent the intentional
distortion, mutilation or other objectionable modification of their works.
• Under VARA, moral rights are not transferable by license or assignment, but
are waivable (in writing.) The rights end with the life of the author
• Some states such as New York and California also have state moral rights
protection for visual artists.

58. 2. Exceptions to Copyright Infringement
The Fair Use Exception
• Both U.S. and European Laws provide exceptions to Copyright
protection.
• This means that under the existence of some specific circumstances, the
use of another’s work of authorship will not constitute copyright
infringement.
• Most cases concerns the use in libraries, at school, and the private use
of copyrighted work of art.
• Big difference between U.S. and Europe is that U.S. provide FAIR USE
as an exception to copyright whereas it does not exist in the European
Laws

59. The Fair Use Exception
• Fair use is any copying of copyrighted material done for a limited
and “transformative” purpose, such as to comment upon, criticize, or
parody a copyrighted work.
• Such uses can be done without permission from the copyright
owner. In other words, fair use is a defense against a claim of
copyright infringement. If your use qualifies as a fair use, then it
would not be considered an illegal infringement. FAIR USE IS A
DEFENSE TO COPYRIGHT INFRINGEMENT
• Most fair use analysis falls into two categories: (1) commentary
and criticism, or (2) parody.

60. Cases on Fair Use
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)
2 Live Crew and ”Pretty Woman” song (fair use defense accepted)
https://www.youtube.com/watch?v=65GQ70Rf_8Y
Rogers v. Koons,960 F.2d 301 (2d Cir. 1992)
(fair use defense rejected)

61. TRADE SECRETS
1. IN U.S.
• U.S. trade secret law protects secret, valuable
business information from theft and espionage.
While it has been said that an exact definition of a
trade secret is not possible, a trade secret generally
consists of confidential, commercially valuable
information Restatement (First) of Torts §757,
comment b.
• Whether information qualifies as a “trade secret”
under federal or state law is a question of fact that
may be determined by a jury.

62. Factors that can be considered:
1) the extent to which the information is known outside of the
company;
2) the extent to which it is known by employees he
company;
3) the extent of measures taken by the company to guard the
secrecy of the information;
4) the value of the information to the company and to its
competitors;
5) the amount of effort or money expended by the company in
developing the information; and
6) the ease or difficulty with which the information could be
properly acquired or duplicated by others.

63. • The U.S. Supreme Court has explained that for subject
matter to be protected as a trade secret, the material
must meet minimal standards of novelty and
inventiveness to avoid extending trade secret
protection to matters of general or common knowledge
in the industry in which it is used.
• Trade secret protection may extend indefinitely, lasting
as long as the subject matter of the trade secret is
commercially valuable and is kept confidential.

64. TRADE SECRETS CAUSES OF ACTION
1. MISAPPROPRIATION (STATE LAW)
A tort that may occur in several ways such as:
- acquiring the trade secret through improper means, such as theft,
bribery, misrepresentation, or espionage;
-use or disclosure of the trade secret through a breach of
confidence (i.e. employee that discloses his previous employer’s
trade secrets in violation of a confidentiality agreement.
N.B. “reverse engineering,” which involves “starting with the known
product and working backward to divine the process which aided in
its development or manufacture,” is not considered an improper
means.

65. DEFEND TRADE SECRETS ACT (DTSA)
(FEDERAL LAW)
• Adopted in May 2016, it introduces a federal cause of action
for Trade Secrets Infringement.
• Its definition of Trade Secrets mirrors the definition given by
the Uniform Trade Secrets Act, which has been adopted by
48 states.
• The DTSA will not preempt existing state law, which will
preserve and afford plaintiff’s options in regards to whether to
file federal or state claims and which court to select. It also
notably omits any requirement that a trade secret plaintiff
describes its trade secrets with particularity, which several
states, including California, currently require.

66. 2. IN EUROPE
EU Directive 2016/943
Definition of Trade Secret (Art. 2, parag.1 a),b),c)):
Information which meets all of the following
requirements:
(a) it is secret in the sense that it is not, as a body or in
the precise configuration and assembly of its
components, generally known among or readily
accessible to persons within the circles that normally
deal with the kind of information in question;
(b) it has commercial value because it is secret;
(c) it has been subject to reasonable steps under the
circumstances, by the person lawfully in control of the
information, to keep it secret.

67. Main similarities with U.S.Trade Secrets Law
• Lawful conducts: both consider an acquisition of trade secrets lawful, when the trade
secret is obtained by any of the following means: reverse engineering, independent
derivation, as well as “other lawful means of acquisition” (DTSA), or “other honest
commercial practices” (EU Directive)
• Provision of confidentiality during legal proceedings for trade secrets
misappropriation: the EU Directive provides for specific measures to protect trade
secrets during litigation, including restricting access to documents and to hearings. To
preserve confidentiality, an applicant must first supply a “duly reasoned” application as
to why certain information should be kept confidential. Similarly, DTSA states that the
court may not authorize or direct the disclosure of any information the owner asserts to
be a trade secret “unless the court allows the owner the opportunity to file a submission
under seal that describes the interest of the owner in keeping the information
confidential.”
• Both they reinforce the importance of employees’ mobility
• Partially similar remedies: both they provide injunctive relief, corrective measures,
and damages as remedies in case of trade secrets violations.
• However, the Defend Trade Secrets Act includes a specific provision for ex parte
seizures of trade secret information.

68. Main differences
• Limitation period: DTSA provides a limitation period of three years from the date the owner “knew, or
should have known” of the trade secrets’ misappropriation, while such period lasts no more than six
years under the EU Directive.
• Whistleblower protections: DTSA provides “immunity” from liability for disclosing a trade secret only
when the disclosure is confidential and made to the government or in a court filing (under seal), but
does require employers to notify employees of this immunity notice of this immunity in any contract or
agreement with an employee entered into or updated after the law comes into force that governs the
use of a trade secret or other confidential information. Failure to do so may limit the employer’s ability to
obtain exemplary damages or attorney fees in a federal trade secrets action against an employee to
whom notice was not provided.
• EU Directive provides broader protections for whistleblowers, in that it provides an exception whenever
the respondent acted for the purpose of protecting the general public interest and trade secret
protection is specifically subject to the exercise of the right to freedom of expression and information
including respect for the freedom and pluralism of the media.
• Possibility of increased damage awards: DTSA provides that if the trade secret is “willfully and
maliciously misappropriated”, exemplary damages are due in an amount which should not exceed two
times the amount of the damages awarded. To the contrary, punitive damage are absent at the EU
level.
• Jurisdiction over extraterritorial conduct: DTSA provides courts with broad jurisdiction over conduct
occurring outside the United States. Such provision is absent at the EU level.
• Criminal liability: U.S. law provides potential criminal liability for wrongful acquisition, use, or
disclosure, whereas the Directive is silent on this aspect. However, EU Member States may provide for
more far-reaching protection.

69. A CASE STUDY: FASHION DESIGNS AND IPRs
BETWEEN U.S. AND EUROPE
Fashion designs could be protected by:
• Patent
• Design Patent
• Trademark
• Trade dress
• Copyright
• Competition law
• Sui generis protection

70. • FASHION IN THE U.S.
Design Patent? : Difficult to satisfy the “nonfunctional”, “new” and
“nonobvious” criteria. Process too long and expensive for constantly
changing fashion trends.
Trademark or trade dress? Difficult to identify origin of clothing or to
obtain “secondary meaning”.
Copyright??
Scope of copyright: Original works fixed in any tangible medium of
expression, including design of a “useful article”.
Separability requirement for useful article: article protected only when it “can
be identified separately from, and is capable of existing independently of, the
utilitarian aspects of the article”.

71. U.S.: Separability requirement for useful articles
Physical separability:
Design “can actually be removed from the original item
and separately sold, without adversely impacting the
article’s functionality”.
Conceptual separability:
The design “invokes a concept separate from that of the
article’s clothing function” and “its addition to the article
was not motivated by a desire to enhance the article’s
functionality qua clothing”.

72. Protected in the U.S.
•Fabric designs, patterns
•Belt buckle
•Non-useful/non-functional clothing
•(e.g. clear plastic swimsuit, Lady
Gaga’s meat dress)

73. FASHION IN EUROPE
Two main sources of IP protection for fashion
designs:
Copyright
Unregistered Community Design right (UCD)
Cumulative protection
In some countries (e.g. France, Belgium) fashion
designs protected by copyright may be also
protected by registered/unregistered design rights.

74. • EU Designs Protection Directive (98/71/EC) Cumulative
protection: Discretion of Member States
• “Design”: very wide definition
• “The appearance of the whole or a part of a product
resulting from the features of the lines, contours, colors,
shape, texture or its ornamentation.”
• Fashion articles in general are included.
• In countries where the cumulative protection is admitted, fashion
articles can be protected both by design rights and copyright.