Materi Kuliah Hukum Perdagangan Internasional
6/20/2016
The Agreement on Trade
Related Aspects of
Intellectual Property Rights
(TRIPS)
TRIPS
The Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) is an international agreement
administered by the World Trade Organization
TRIPS is the most important and comprehensive international
agreement on Intellectual Property rights
It was formed at the end of the Uruguay Round of the
General Agreement on Tariffs and Trade (GATT) in 1994.
The TRIPS agreement introduced intellectual property law into
the international trading system for the first time
The rationale for WTO adopting rues in intellectual property
minimum standards on rights and enforcement obligations
was that intellectual property is inherent in many/ most goods
that are traded
6/20/2016
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
TRIPS Objectives
to reduce distortions and impediments to international trade,
taking into account the need to promote effective and
adequate protection of intellectual property rights, and to
ensure that measures and procedures to enforce intellectual
property rights do not themselves become a barrier to
legitimate trade (preamble).
Article 7
The protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation
and to the transfer and dissemination of technology, to the
mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations
6/20/2016
The IPRs covered by the TRIPS
Agreement:
Copyright and related rights (i.e. the rights of performers,
producers of sound recordings and broadcasting
organizations)
Trademarks, including service marks
Geographical indications including appellations of origin
Industrial designs
Patents including the protection of new varieties of plants
Layout-designs (topographies) of integrated circuits
Undisclosed information, including trade secrets and test data
Copyright and Related Rights
Copyright is the exclusive right to do certain things with an
original work, including the right to reproduce, publish,
perform the work in public, & to make adaptations of it.
Copyright is a right, which is available for creating an
original literary or dramatic or musical or artistic work.
include Cinematographic films and Computer programs
and software
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
(article 10)
6/20/2016
Trademark
Article 15
Trademark protects any word, name, logo or device used
to identify, distinguish or indicate the source of goods or
services (Article 15)
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)
Geographical Indications (GIs)
Article 22
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.
6/20/2016
Industrial designs
Article 25
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
Patents
Article 27
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 useful and non-obvious
The agreement allows countries to exclude inventions from
patentability on following grounds:
a) Inventions necessary to protect order public or morality;
including to protect human, animal or plant life or
health or to avoid serious prejudice to the
environment
6/20/2016
b) Diagnostic, therapeutic and surgical methods for the
treatment of humans or animals
c) 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
d) Limited Exceptions
e) Compulsory Licensing
The term of protection (for a period of 20 years
counted from the filing date)
Layout-designs of integrated
circuits and trade secrets
Article 35
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 layoutdesign/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)
6/20/2016
Protection of undisclosed information
Article 39
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. (example: the formula for
a sports drink)
In most countries, they are not subject to registration
but are protected through laws against unfair
competition
Curbing anti-competitive licensing
contracts
Article 40
The owner of a copyright, patent or other form of
intellectual property right can issue a license for someone
else to produce or copy the protected trademark, work,
invention, design, etc. The agreement recognizes that the
terms of a licensing contract could restrict competition or
impede technology transfer. It says that under certain
conditions, governments have the right to take action to
prevent anti-competitive licensing that abuses intellectual
property rights. It also says governments must be prepared
to consult each other on controlling anti-competitive
licensing.
6/20/2016
Provision on basic principles
National treatment
each Member shall accord to the nationals of
other Members treatment no less favourable than it
accords to its own nationals with regard to the
protection of intellectual property (Art. 3)
Most-Favoured-Nation Treatment
With regard to the protection of intellectual
property, any advantage, favour, privilege or
immunity granted by a Member to the nationals of
any other country shall be accorded immidiately
and unconditionally to the nationals of all other
Members (Art. 4)
Other provisions
ENFORCEMENT PROVISIONS
General obligations like enforcement procedures must be
available; procedures to be fair and equitable etc
Special obligations like enforcing provisions for enforcing civil and
administrative procedures like Disposal of infringing goods, Right of
information etc
DISPUTE SETTLEMENT
Aims for prevention of disputes through provisions on transparency
Settlement of disputes through panel procedures and decisions and
trade sanctions in case decisions are not adhered to.
6/20/2016
The Agreement on Trade
Related Aspects of
Intellectual Property Rights
(TRIPS)
TRIPS
The Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) is an international agreement
administered by the World Trade Organization
TRIPS is the most important and comprehensive international
agreement on Intellectual Property rights
It was formed at the end of the Uruguay Round of the
General Agreement on Tariffs and Trade (GATT) in 1994.
The TRIPS agreement introduced intellectual property law into
the international trading system for the first time
The rationale for WTO adopting rues in intellectual property
minimum standards on rights and enforcement obligations
was that intellectual property is inherent in many/ most goods
that are traded
6/20/2016
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
TRIPS Objectives
to reduce distortions and impediments to international trade,
taking into account the need to promote effective and
adequate protection of intellectual property rights, and to
ensure that measures and procedures to enforce intellectual
property rights do not themselves become a barrier to
legitimate trade (preamble).
Article 7
The protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation
and to the transfer and dissemination of technology, to the
mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations
6/20/2016
The IPRs covered by the TRIPS
Agreement:
Copyright and related rights (i.e. the rights of performers,
producers of sound recordings and broadcasting
organizations)
Trademarks, including service marks
Geographical indications including appellations of origin
Industrial designs
Patents including the protection of new varieties of plants
Layout-designs (topographies) of integrated circuits
Undisclosed information, including trade secrets and test data
Copyright and Related Rights
Copyright is the exclusive right to do certain things with an
original work, including the right to reproduce, publish,
perform the work in public, & to make adaptations of it.
Copyright is a right, which is available for creating an
original literary or dramatic or musical or artistic work.
include Cinematographic films and Computer programs
and software
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
(article 10)
6/20/2016
Trademark
Article 15
Trademark protects any word, name, logo or device used
to identify, distinguish or indicate the source of goods or
services (Article 15)
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)
Geographical Indications (GIs)
Article 22
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.
6/20/2016
Industrial designs
Article 25
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
Patents
Article 27
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 useful and non-obvious
The agreement allows countries to exclude inventions from
patentability on following grounds:
a) Inventions necessary to protect order public or morality;
including to protect human, animal or plant life or
health or to avoid serious prejudice to the
environment
6/20/2016
b) Diagnostic, therapeutic and surgical methods for the
treatment of humans or animals
c) 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
d) Limited Exceptions
e) Compulsory Licensing
The term of protection (for a period of 20 years
counted from the filing date)
Layout-designs of integrated
circuits and trade secrets
Article 35
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 layoutdesign/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)
6/20/2016
Protection of undisclosed information
Article 39
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. (example: the formula for
a sports drink)
In most countries, they are not subject to registration
but are protected through laws against unfair
competition
Curbing anti-competitive licensing
contracts
Article 40
The owner of a copyright, patent or other form of
intellectual property right can issue a license for someone
else to produce or copy the protected trademark, work,
invention, design, etc. The agreement recognizes that the
terms of a licensing contract could restrict competition or
impede technology transfer. It says that under certain
conditions, governments have the right to take action to
prevent anti-competitive licensing that abuses intellectual
property rights. It also says governments must be prepared
to consult each other on controlling anti-competitive
licensing.
6/20/2016
Provision on basic principles
National treatment
each Member shall accord to the nationals of
other Members treatment no less favourable than it
accords to its own nationals with regard to the
protection of intellectual property (Art. 3)
Most-Favoured-Nation Treatment
With regard to the protection of intellectual
property, any advantage, favour, privilege or
immunity granted by a Member to the nationals of
any other country shall be accorded immidiately
and unconditionally to the nationals of all other
Members (Art. 4)
Other provisions
ENFORCEMENT PROVISIONS
General obligations like enforcement procedures must be
available; procedures to be fair and equitable etc
Special obligations like enforcing provisions for enforcing civil and
administrative procedures like Disposal of infringing goods, Right of
information etc
DISPUTE SETTLEMENT
Aims for prevention of disputes through provisions on transparency
Settlement of disputes through panel procedures and decisions and
trade sanctions in case decisions are not adhered to.
6/20/2016