The Leviathan within Madrid System
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Author: Daniel Chalhub
An overview of Hobbes’ theory concerning societies and their formation, and its intersections with modern International Law theory; the implications of acceding trade treaties and the impacts such accession would have in any given nation’s Law system; the sui generis nature of Madrid’s System and an appropriate presentation of its idiosyncrasies.

Roughly speaking, the Rule of Law can be defined as the ideal governing principle behind a nation’s proper management: the identity and personal inclinations of individual government officials should be irrelevant in the decision-making process; rather, the cornerstone of a nation’s political agenda should be the Law. This principle dictates that every single person is subject to it, including people who are lawmakers, law enforcement officials and judges[1].
One could, therefore, understand the Rule of Law as a Social Technology[2], which according to Albion Small is “[the] use of knowledge of the facts and rules of social life to bring about rational social aims”[3]. Every organized society in every observable timeframe has established rules by which its members abode in order to coexist by means of relinquishing some of their individual freedom in return for less attrition with their fellow citizens and greater overall safety– very few exotic exceptions defying this statement. This concept bears resemblance to the social contract theory as first presented by Rousseau[4], and furiously debated ever since by social contract and natural law theorists, giving birth to different camps built around discussing the issue of ‘state of nature’: the theoretical mind frame of a proto-society bereft of Laws.
Thomas Hobbes postulated that “during the time men live without a common power to keep them all in awe, they are in that condition which is called warre; and such a warre as is of every man against every man”[5], thus Hobbes believed an organized society is a social technology needed in order to prevent a state of social warfare. As asserted in his early work, De Cive, when subject to the state of nature, humans would be in bellum omnium contra omnes — war of all against all. While the implications of this thought experiment still provoke heated academic arguments when human nature is being debated, this paper focuses on the groundwork laid for International Law theories, which sprouted from Hobbes views of natural law: among independent countries, the state of nature is ever pervasive; thus no law exists except for those precepts of the laws of nature.
The aforementioned precepts are: (i) “that every man ought to endeavour peace, as far as he has hope of obtaining it” (Leviathan, Ch. XIV); and (ii) “that a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men as he would allow other men against himself” (loc. cit.). If one is to transpose these dicta to a modern-world globalized context, it should become natural to infer international relations between countries are not supposed to be conflict-oriented[6], and, through contractual law, possibilities of alliances and cooperation are born, slowly turning the adjustments of conflicting interests into a natural process.
Either through religious or state-enforced law, human societies have always been compelled to regulate their relations concerning crime, property, marriage, and inheritances. Each novel legislative iteration enhances upon the shortcomings of its predecessors, in order to fine tune, increase, and supplement individual freedoms and liberties. Brazil is a fine example of this phenomenon; an endorser of the Civil Law system, it currently sits on top of its seventh Constitution, considered the finest instalment of national constitutional law as of yet. On the Common Law side of the spectrum, the British Constitution[7] in lieu of concentrating all its rules and principles in one single codified text, subject to major revisions or amendments every couple of decades, has freed itself from the slow-and-steady approach of Civil Law Constitutions. In favour of dynamism and adaptability, it majorly draws from four sources: statute law (laws passed by the legislature), common law (laws established through court judgments), parliamentary conventions, and works of authority[8], thusly in a perpetual state of evolution, embodying the technology-like nature laws should possess.
If laws were to be perceived as technologies, international treaties would be akin to ‘Technical Standards’. These standards, as defined by the European Commission, are “mandatory technical regulations that define a benchmark with which products must comply in order to gain access to a market, while meeting the authorities’ and consumers’ demand for safe and quality products”. Novel international treaties, very much like the sanctioning of new technological standards, entail a lengthy intellectual debate; such was the case of the Madrid Union, which encompasses the Madrid Agreement Concerning the International Registration of Marks of 1891 and the later Protocol Relating to the Madrid Agreement dating from 1989. Whilst both concern matters of trademark protection and procedures to expedite and enhance the registration and protection of such marks, a few nations still debate to this day whether or not the Madrid System is detrimental to their sovereignty.
Madrid’s greatest benefit is the creation of a centrally administered system of obtaining a bundle of trademark registrations in separate jurisdictions. Even though this registration does not entail a unified registration, as the European Union Trademark System would have it[9], the creation of a central authority able to protect trademarks in many countries is much more effective than seeking protection in each individual country or jurisdiction of interest.
The Madrid Union, boasting 116 countries under its aegis, encompasses an estimate of 80% of all world trade. While not a flawless system, which very few — if any — human creations are, Madrid is a step towards the proper engineering of a fairer global society. If intellectual property concerns all and every conception of the human mind, then an efficient system and a more accessible mechanism of protection equals to the democratization of intellectual property rights. If more people can use an increasingly widespread system to protect their own creations, inventions, products, and services, not only would economy, but also culture, thrive on a local and global scale. This is a well-documented effect in the Creative Industry field, where adequate management of Intellectual Property Portfolios loop-feeds on itself: its immediate and potential profitability acting as a solid motivator for the development and actualization of further intellectual creation[10].
As to the actual flaws of Madrid, they do seem to derive from the distributive nature of the system. Under the Madrid Protocol, a trademark owner of an existing application or registration — referred to as the ‘basic application’ or ‘basic registration’ — in a member jurisdiction, may obtain an International Registration from the WIPO (World Intellectual Property Organization) for their trademark. This feature effectively extends the protection of their original basic application or registration to new jurisdictions within the Protocol, a process known as ‘designation’. In this way, there is one ‘basic’ or central application or registration, and its international version. The validity of the latter depends on the integrity of the former; therefore, there can be no incongruence between formal and material aspects of both species. Any refusal, withdrawal or cancellation of the basic application or basic registration within five years of the registration date of the international registration will lead to the refusal, withdrawal or cancellation of the international registration to the same extent.
A corollary consequence to this distributive trait is the existence of ‘central attacks’[11]. A central attack is the process of attacking the basic application or registration, and, if one is successful, in cancelling the effects of these. Little option to mitigate the damage is left, but to resort to the ‘transformation’ process, which transforms the international registration into a series of applications in each jurisdiction designated by the international registration. A costly emergency measure, which counters the saving effect the Madrid System would entail. In summary, if adequately used, the Madrid Protocol is a powerful tool for lowering costs and managing the maintenance of international trademark portfolios.
As expected, some reluctant jurisdictions undertook a lengthier decision-making process before acceding to Madrid System. Experts and intellectuals are, more often than not, prone to academic zeitgeist[12]. Much as Hobbe’s imagery of a pre-societal savage state fell out of fashion in political philosophy circles only to be rescued three centuries later by John Rawls through his ‘Original Position’[13] theory, so did international treaties fell prey to academic and political rejection just as World War II brewed, not to recover their appeal until the very end of the conflict.
Professor Robert Pfaltzgraff, when describing international relations during the interwar period, sagely noted that “during the revolutionary upheavals at the end of the [first world] war, major portions of the government archives of imperial Russia and imperial Germany were opened, making possible some impressive scholarly work in diplomatic history that pieced together the unknown history of pre-war alliances, secret diplomacy, and military planning”[14]. The newborn League of Nations, created in the aftermath of the first World War, and aiming to prevent further globalized conflicts, beaconed an era of cooperation amongst nations and even expectations of an international government. Intensive study was devoted to the creation and organization of the League, the history of earlier plans for international federations, and the analysis of the issues and procedures of international organization and international law[15] — in this manner, the League was a fomenter and a catalyst for international treaties.
From the early 1930s until its death throes, however, the League of Nations was largely criticized as being nothing more than the embodiment of naïve idealism. Despite the economic success of its members, due to better and stronger cooperation and trade relations, it was incapable of preventing aggressions. It “(…) came to be regarded as the handiwork of starry-eyed peace visionaries who ignored the hard facts of international politics[16]”. In a sense, League of Nations members were paving the way to an age of mutual democratic pacifism[17] — the theoretical postulate that democracies are hesitant to engage in armed conflict with other democracies — a project that crumbled before the rise of aggressive dictatorships in Italy, Germany, and Japan. The opening salvo of World War II created a powerful rejection of international government and against peace-inspired topics in the field of international relations. Not until the end of the Second World War would statecraft focus shift from authoritarian to democratic, as nations began to consider that their goals and interests could not exist in a theoretical limbo devoid of other international players; thusly, the advancement of national agendas would serve the interests of peace, security and development. The starry-eyed peace visionaries were right: cooperation amongst nations is the categorical imperative[18] of international relations[19].
In 1945, the United Nations took upon the heritage of its predecessor and reinstated cooperation towards peace and development as humanity’s aspiration. As predicated in the Charter of the United Nations, its purposes are “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion[20]”. Thus, the study, development, and upholding of international law is a celebration of the post-war legacy. True to Hobbesian theory, greater security and opportunities are to be had from handing back small parcels of individual liberties to the State, the so-called Leviathan, than from isolating oneself from society, in hermitage.
Madrid Union critics often line up behind the theory that being an acceding member implies in diminished sovereignty for their nations, turning a blind-eye towards its benefits, to the point of ignoring important features whether in the form of business opportunities or market evolution. Not being able to buy or sell products or services covered by registered trademarks, where one interested party is an acceding member and the other is not[21] or not being able to enrol for savings that could be had from registering a trademark within an unified system in lieu of filing as many registrations as there are countries of interest to the trademark owner, severely limits one’s business options and probability of further expansion. Intellectual property, in its own right, is a pivotal tool in fighting inequality and boosting economic development, as raw talent and creativity are equally distributed amongst all regions of our planet. Being able to bypass inefficient or hardly-accessible local systems would translate in the direct creation and distribution of wealth, by using nothing but the products of their thought processes. In this manner, presenting nations the opportunity of using their intellectual prowess to their own benefit is not only moral, but also economically savvy.
Surviving two global-scale conflicts taught humankind a hard-earned lesson: cooperation amongst nations is the best possible path. Giving up a diminutive fragment of administrative autonomy is a price so small it pales in comparison to the benefits to be had from having trade and de facto allies. Such is human nature, to thrive amongst equals: Concordia parvae res crescent — in harmony, even the small flourish.
[1] “Rule of law”, as defined by The Oxford English Dictionary: The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.
[2] “A system of conscious and purposeful organization of persons in which every actual, natural social organization finds its true place, and all factors in harmony cooperate to realize an increasing aggregate and better proportion of the ‘health, wealth, beauty, knowledge, sociability, and rightness” desires’. Henderson, C. R. (1901). The Scope of Social Technology. The American Journal of Sociology, 6(4), 465–486.
[3] “(…) social technology, considers (I) what should be done; (II) how to make or do that which the situation demands”. Small, A. W. (1898). Seminar Notes: The Methodology of the Social Problem. Division I. The Sources and Uses of Material. The American Journal of Sociology, 4(1), 113–144.
[4] Rousseau, J. J. (1762). Du contrat social ou Principes du droit politique.
[5] “War consisteth not in battle only, or the act of fighting; but in a tract of time, wherein the will to contend by battle is sufficiently known”. Hobbes, T. (1651). Leviathan. The First Part, Chapter XIII.
[6] Yurdusev, A. Nuri (June 2006). Thomas Hobbes and international relations: from realism to rationalism. Australian Journal of International Affairs. 60 (2), 305.
[7] “Britain’s unwritten constitution”. British Library. There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one being that in law the Parliament in Westminster (as opposed to regional parliaments in Scotland and Wales) is sovereign in the sense of being the supreme legislative body.
[8] Blick, Andrew; Blackburn, Robert (2012), Mapping the Path to Codifying — or not Codifying — the UK’s Constitution, Series paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament UK.
[9] Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trademark, Official Journal No. L78, 24.3.2009, p.1.
[10] Benkler, Yochai. The wealth of networks: how social production transforms markets and freedom. New Haven/London: Yale University Press, 2006.
[11] The incidence of trademark registration ceasing its effects due to central attacks is mildly below 2.5% as of 2004. WIPO, How could a mechanism of central attack be envisaged in the absence of a basic mark. Working Group on the Legal Development of the Madrid System for the International Registration of Marks, 2010. As found in www.wipo.int/edocs/mdocs/sct/en/mm_ld_wg_8/mm_ld_wg_8_4.doc.
[12] “Zeitgeist”, as defined by The Oxford English Dictionary: “The defining spirit or mood of a particular period of history as shown by the ideas and beliefs of the time”.
[13] In John Rawls’ Original Position (OP) theory, citizens would begin to form up a civil society by making choices about its conditions of existence and core values, being asked to define these from an “original position” of equality behind a “veil of ignorance”, without knowing what gender, race, abilities, tastes, wealth, or position in such society they would have. Rawls claims this would cause them to choose “fair” policies. John Rawls, A Theory of Justice, Cambridge, Massachusetts: Belknap Press, 1971.
[14] Pfaltzgraff, Robert; McClelland, Charles. International Relations, in Encyclopaedia Britannica, 1998.
[15] Prior to World War I, International Relations scholarship focused mainly on International Law and Diplomatic History. It bears mentioning that war was regarded as the source of fundamental normative standards of international conduct.
[16] Hosen, Ann; Editor. The Britannica Guide to the Social Sciences: Political Science. Britannica Educational Publishing, 2016.
[17] The core principles of the Democratic Peace Theory derived from the early Kantian essay “Perpetual Peace: A Philosophical Sketch” (1795) and Thomas Paine’s “Common Sense” (1776). Major motivators for peace amongst democratic regimes are: Democratic leaders being forced to accept culpability for war losses; Public accountability for statesmen predisposing them to establish diplomatic institutions for resolving international tensions; Democratic regimes not being inclined to view countries with adjacent policy and governing doctrine as hostile; and Democracies tending to possess greater public wealth than other states, and therefore eschew war to preserve infrastructure and resources.
[18] “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law”. Kant, Immanuel; Groundwork of the Metaphysics of Morals, 1785.
[19] “This realization and the interdependent nature of international community became instrumental in giving a vital and welcome strength to the cause of peaceful and orderly international relations. Peace became a cherished value and it gave a purpose to international relations i.e. to find ways and means for securing and strengthening stable and durable peace in the world. These gave an encouraging and welcome direction to post-war international relations”. Adler, Emanuel; Crawford, Beverly. Progress in Post-War International Relations, Harvard University, 1993.
[20] Charter of the United Nations, Chapter I, Article 1.3.
[21] “An application for international registration must designate one or more Contracting Parties in which the mark is to be protected. It may not designate the Contracting Party whose Office is the Office of origin. Further Contracting Parties may be designated subsequently. A Contracting Party may be designated only if that Contracting Party and the Contracting Party whose Office is the Office of origin are both party to the same treaty (Agreement or Protocol). The Madrid system of international registration cannot be used by a person or entity which does not have the necessary connection, through establishment, domicile or nationality, with a member of the Madrid Union. Furthermore, it cannot be used to protect a trademark outside the Madrid Union”. Guide to the International Registration of Marks, Part A — Introduction: Who may use the system, 02.06. As found in http://www.wipo.int/export/sites/www/madrid/en/guide/pdf/parta.pdf.

