A Fake Right of Priority Under the Cross-Strait Agreement on Intellectual Property Right Protection and Cooperation

On June 26, 2010, Taiwan and China entered into a Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection (Cross-Strait IP Agreement). This Cross-Strait IP Agreement was renowned for China’s admission of a right of priority of Taiwanese patent applications or trademark applications. Under the TRIPS Agreement, China is obligated to admit a right of priority of Taiwanese applications, but it has never fulfilled such obligation. China’s particular concern is that a right of priority is rooted from the Paris Convention which only allows a state to join, so by admitting a right of priority of Taiwanese applications it may admit the statehood of Taiwan. This article is intended to argue that China provides a fake right of priority and still violates its duty to the TRIPS Agreement. First, the Agreement does not recite the TRIPS Agreement or Paris Convention. Second, the signing representatives are not regular representatives for international affairs or trade affairs in both countries. Third, China has not changed its IP laws to comply with the treaty requirements while Taiwan did so. Though, China promulgates regulations regarding a right of priority claimed by Taiwanese applicants. Those regulations are only applicable to Taiwanese applicants not to Taiwanese applications filed by a non-Taiwanese entity. Last, China does not treat the ECPA as a free trade agreement