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Overview of

Trade Related Aspects of Intellectual Property

Rights (TRIPS) Agreement

Archana A. Jatkar

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Outline

Introduction

Basic principles of TRIPS

Types of Intellectual Property Rights (addressed in theTRIPS agreement)

Overview of the TRIPS agreement

Institutional arrangements

Public policy implications

Provisions relating to developing countries

Conclusion

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Introduction

Brief history ofIntellectual Property Rights (IPRs)

Intellectual property rights are the rights given to

persons over the creations of their minds. They usuallygive 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 internationaltrade and take into account the need to promote competentas well as adequate protection ofIPRs

To ensure that measures and procedures to enforce IPRs donot themselves become barriers to legitimate trade

To reduce tensions by reaching strengthened commitmentto resolve disputes on trade-related IP issues through

multilateral procedures To establish a mutually supportive relationship between

the World Trade Organisation (WTO) and WorldIntellectual Property Organisation (WIPO)

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Basic principles: national treatment, MFN and

balanced protection

Non-discrimination features prominently in TRIPS, similarto GATT and GATS,by following principles of:

National Treatment (Article 3): Equal treatment for foreignand domestic individuals and companies

Most Favoured Nation (Article 4): Equal treatment fornationals of all trading partners in the WTO

TRIPS Agreement has additional important principle:Intellectual property protection should contribute totechnical innovation and transfer of technology

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Relationship between TRIPS agreement and

other IP treaties

Respects the standards and complies with the multilateral

conventions administered by WIPO

Incorporation of explicit provision of various conventions

in WIPO into TRIPS agreement allows WTO panels to

interpret them

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Acquisition and maintenance of IP

Member countries must create office and operate

governmental offices for the acquisition and maintenance

ofIP

Rs 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 oforiginal scientific, artistic and literary works

Original is key in defining a work that qualifies forcopyright protection

The term of protection

Countries to confine limitations or exceptions toexclusive rights to certain special cases which do not

conflict with exploitation of the work and not prejudicialto right holder

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Trademark

Trademark protects any word, name, logo or device usedto identify, distinguish or indicate the source of goods orservices

Includes trade dress (the total image and overallappearance of a product) and product configuration (theshape 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 termof no less than 7 years)

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Geographical Indications (GIs)

GIs are denominations that identify a good as originatingin a region or locality, where the reputation and quality ofgood is essentially attributable to its geographical origin(for example: Darjeeling tea ofIndia)

TRIPS prohibits the use of GIs in such a way as to causedeception and provides for injunctive relief, refusal oftrademark registration, etc

Exceptions such as Countries are not obliged to bring ageographical indication under protection, where it has become a generic term for describing the product inquestion

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 twoperiods (for example two periods of five years)

The third party is prohibited from making, selling orimporting 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 normalexploitation of protected industrial designs and do notunreasonably prejudice the legitimate interests of theowner of the protected design

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Patents

The TRIPS Agreement requires Member countries tomake patents available for any inventions, whether

products or processes, in all fields of technology without

discrimination, subject to novelty, inventiveness andindustrial 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 andessentially 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

Two main competing theories:

Universal or international exhaustion theory: An IPR

holders right are exhausted on the first sale of theprotected product anywhere in the world

Domestic or territorial exhaustion theory: The rightholders IP are not exhausted until after the first sale of the

product in the territory in which he holds the rights

The resolution of exhaustion issues is left to national lawsand there are are no international or customary law normsin this area

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Main feature of the agreement

Standards: The agreement expresses minimum standards ofprotection

(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 theenforcement of the IPRs

(II) Includes general principle applicable to IPR enforcement procedure apart from administrative, civil and criminalprocedure available for enforcement of rights of the rightholder

Dispute settlement: The agreement further provides for thesettlement of disputes overIPR among the member states within the

parameters of dispute settlement procedure

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Institutional arrangements

Council for Trade Related Aspects ofIntellectual 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 developingcountries

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 LeastDeveloped Countries (LDCs)

(II) Technical assistance and financial support to

developing countries in preparing laws and

regulations on protection and enforcements ofIP

Rs

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Conclusion

Highly innovative agreement and remains the most

comprehensive international agreement on intellectual

property till date. Overall it has worked well, however, it needs to continue

to implement wide ranging provisions specially when it

touches significant public policy questions