Paris: National Treatment, Articles 2 and 3

In one line

National treatment means a country must give the nationals of other member countries exactly what it gives its own, no more and no less.

In exam wording: national treatment, established by Article 2 of the Paris Convention and extended by Article 3, requires each country of the Union to grant to nationals of other countries of the Union the same protection and the same legal remedy against infringement as it grants to its own nationals, without any condition of domicile or establishment, subject only to the express reservation of national provisions on judicial and administrative procedure, jurisdiction and the designation of an address for service.

Article 2, clause by clause

Article 2(1): nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as nationals, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.

Read that sentence twice, because three things are in it.

"The advantages that their respective laws now grant, or may hereafter grant": the obligation is dynamic, so an improvement a country makes for its own nationals must be extended to foreigners automatically.

"Without prejudice to the rights specially provided for by this Convention": national treatment is a floor and the Convention's own minimum rules sit on top of it.

"Provided that the conditions and formalities imposed upon nationals are complied with": a foreigner must follow the same rules, so no exemption from fees, deadlines or forms.

Article 2(2) is the provision that made the obligation real: no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights.

Why that mattered in 1883. Several countries required a foreign applicant to have a domicile or a business establishment locally, which for a small inventor was a prohibition dressed as a formality. Article 2(2) removed it.

Article 2(3) is the reservation, and it must be quoted with the rule. The provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure and to jurisdiction, and to the designation of an address for service or the appointment of an agent, which may be required by the laws on industrial property, are expressly reserved.

So a country may require a foreigner to appoint a local agent and to give an address for service, and India does: rule 5 of the Patents Rules requires an address for service in India.