Overview of Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
Overview of Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
Overview of Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
Archana A. Jatkar
Outline
Introduction
Basic principles of TRIPS
Types of Intellectual Property Rights (addressed in the
TRIPS agreement)
Overview of the TRIPS agreement
Institutional arrangements
Public policy implications
Provisions relating to developing countries
Conclusion
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Introduction
Brief history of Intellectual Property Rights (IPRs)
Intellectual property rights are the rights given to
persons over the creations of their minds. They usually
give the creator an exclusive right over the use of
his/her creation for a certain period of time
Linkage between Intellectual Property (IP) and trade:
broadly through following two premises:
(I) Widespread piracy, counterfeiting and infringements
of intellectual property rights constituted a barrier to
trade
(II) IPRs transfer agreements
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Objectives
To reduce distortions and impediments to international
trade and take into account the need to promote competent
as well as adequate protection of IPRs
To ensure that measures and procedures to enforce IPRs do
not themselves become barriers to legitimate trade
To reduce tensions by reaching strengthened commitment
to resolve disputes on trade-related IP issues through
multilateral procedures
To establish a mutually supportive relationship between
the World Trade Organisation (WTO) and World
Intellectual Property Organisation (WIPO)
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Basic principles: national treatment, MFN and
balanced protection
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Relationship between TRIPS agreement and
other IP treaties
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Acquisition and maintenance of IP
Member countries must create office and operate
governmental offices for the acquisition and maintenance
of IPRs
Procedures for granting and registration of IPR must be
reasonable
Member country's law must provide for opposition,
revocation and cancellation
Member country may adopt measures to protect public
health and the public interest
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Types of IPRs:
Copyright and related rights
Copyright grants exclusive rights to the creator of
original scientific, artistic and literary works
‘Original’ is key in defining a work that qualifies for
copyright protection
The term of protection
Countries to confine limitations or exceptions to
exclusive rights to certain special cases which do not
conflict with exploitation of the work and not prejudicial
to right holder
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Trademark
Trademark protects any word, name, logo or device used
to identify, distinguish or indicate the source of goods or
services
Includes trade dress (the total image and overall
appearance of a product) and product configuration (the
shape if non functional)
The purpose is to safeguard the integrity of products and
to prevent product confusion and unfair competition
The term of protection (initial registration and each
renewal of registration of a trademark shall be for a term
of no less than 7 years)
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Geographical Indications (GIs)
GIs are denominations that identify a good as originating in
a region or locality, where the reputation and quality of
good is essentially attributable to its geographical origin
(for example: Darjeeling tea of India)
TRIPS prohibits the use of GIs in such a way as to cause
deception and provides for injunctive relief, refusal of
trademark registration, etc
Exceptions such as Countries are not obliged to bring a
geographical indication under protection, where it has
become a generic term for describing the product in
question
The term of protection
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Industrial designs
Protects the artistic aspect (namely, texture, pattern, shape) of
an object instead of the technical features
The term of protection (amount to at least 10 years)
‘Amount to’ allow the term to be divided into two periods (for
example two periods of five years)
The third party is prohibited from making, selling or importing
articles bearing a design which is a copy of the protected
design, when such acts are undertaken for commercial purposes
Exception: optional mandate, if introduced then such
exceptions do not unreasonably conflict with the normal
exploitation of protected industrial designs and do not
unreasonably prejudice the legitimate interests of the owner of
the protected design
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Patents
The TRIPS Agreement requires Member countries to
make patents available for any inventions, whether
products or processes, in all fields of technology without
discrimination, subject to novelty, inventiveness and
industrial applicability
Invention to be novel,useful and non-obvious
The agreement allows countries to exclude inventions
from patentability on following grounds:
Inventions necessary ‘to protect ordre public or
morality; including to protect human, animal or plant
life or health or to avoid serious prejudice to the
environment…’
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Continued..
Diagnostic, therapeutic and surgical methods for the
treatment of humans or animals
Plants and animals other than micro-organisms and
essentially biological processes for the production of
plants or animals other than non-biological and
microbiological processes
Limited Exceptions
Compulsory Licensing
The term of protection (for a period of 20 years counted
from the filing date)
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Layout-designs of integrated circuits and trade
secrets
It refers to mask works (topographies) of the integrated
circuits, the stencils used to etch or encode an electrical
circuit on a semiconductor chip
Protection conferred to “original” layout-
design/topographies
Exclusive rights include the right of reproduction and
the right of importation, sale and other distribution for
commercial purposes
The term of protection (ten years form the date of first
commercial exploitation)
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Protection of undisclosed information
The protection must apply to information that is secret,
that has commercial value because it is secret and that has
been subject to reasonable steps to keep it secret
Trade secrets consist of formulae, patterns, process or
compilation of information. (for example the formula for a
sports drink)
In most countries, they are not subject to registration but
are protected through laws against unfair competition
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Exhaustion of IPR
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Main feature of the agreement
Standards: The agreement expresses minimum standards of
protection
(I) The subject matter to be protected
(II) The rights to be conferred and permissible exceptions
(III) The minimum period of protection
Enforcement
(I) Provisions for domestic procedure and remedies for the
enforcement of the IPRs
(II) Includes general principle applicable to IPR enforcement
procedure apart from administrative, civil and criminal
procedure available for enforcement of rights of the right
holder
Dispute settlement: The agreement further provides for the
settlement of disputes over IPR among the member states within the
parameters of dispute settlement procedure
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Institutional arrangements
Council for Trade Related Aspects of Intellectual Property
Rights (TRIPS)
Dispute Settlement Body (DSB)
Current Negotiations in special sessions (SS)
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Public policy implications
Benefits and costs of higher IP standards for developing
countries
Protection of traditional knowledge and culture
Biological diversity
Health
Food
Investment and transfer of technology
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Provisions relating to developing countries
Transitional arrangements
Developed countries to provide
(I) Incentives for transfer of technology to Least
Developed Countries (LDCs)
(II) Technical assistance and financial support to
developing countries in preparing laws and
regulations on protection and enforcements of IPRs
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Conclusion
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