trips
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Trade Related Intellectual Property
TRIPS
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THE INTENT BEHIND TRIPS
The TRIPS agreement is an important as that of trade in goods(GATT) and trade in services(GATS).
The main objectives is providing protection to the holder of the intellectual property right, which can be claimed by an individual, company or even people of a geographical region.
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The right over intellectual property can be called a “MONOPOLY RIGHT” conferred on the inventor, creator, user or region.
The right recognized as “legal property”, however, can be claimed for fixed pre-determined periods of time except trademark and geographical indication of origin where protection is offered in perpetuity.
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Such protection was earlier given to goods and services under what are called “great conventions”.
The PARIS CONVENTION related to patentsThe BERNE CONVENTION related to copyrightsThe ROME CONVENTIONS to the field of
performing arts The WASHINGTON TREATY on integrated chips.
WIPO has simultaneous responsibilities for the Paris and Berne convention.
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TRIPS
TRADEMARKS
PATENTS DESIGNS
LAYOUT OF
INTEGRATED CHIPS
TRADE SECRETS
COPYRIGHTS
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PATENTSPATENTS are given to inventions that are:-
A patent is valid for 20 years from the date of filling of the patents.
NEW
NON-OBVIOUS
SHOULD HAVE INDUSTRIAL APPLICATION
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INVENTIONS NOT PATENTABLE An invention which is frivolous or which
claims anything obviously contrary to well established natural laws.
An inventions, the primary or indented use of which would be contrary to law or morality or injurious to public health.
The more discovery of a scientific principles
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The mere discovery of any new property or new use for a known substances.
A substances produced by a mere admixture resulting only in aggregations of properties.
Mere arrangement and rearrangement of known devices.
A method of agriculture or horticulture.
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CANBIOLOGICAL INVENTIONS
COMPUTER HARDWARE
SOFTWARES
COSMETICS
FOOD INVENTIONS
MACHINES
MEDICINES
MUSICAL INSTRUMENTS
CANNOT
ORDER PUBLIC
DIAGNOSTIC METHODS
THERAPEUTIC METHODS
SURGICAL METHODS
PLANT AND ANIMALS OTHER THAN MICRO-ORGANISMS
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COMPULSORY LICENCING
Compulsory licensing and government use without the authorization of the rights holder are allowed but are made subject to conditions aimed at protecting the legitimate interest of the right holder.
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COPYRIGHT
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When patents are called “monopoly rights”, copyrights can be termed as a ‘negative right’. That is, a copyright prohibits person from reproducing or copying any “literary, dramatic, musical works” without the consent of the owner who has the copyright over that work.
This protection also applies to cinematograph films, sound recordings and now, computer programmes.
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The TRIPS agreement mentions that “copyright protection shall extend to expressions, and not to ideas, procedures and method of operations or mathematical concepts as such”.
Just as “commercial use or utilities” is an important precondition for the granting of a patents, ideas should have crystallized as expression or artistic forms for the granting of a patents.
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LITERARY WORK
DRAMATIC WORK
ARTISTIC WORK
COPYRIGHT
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The terms of protections for films, sound recordings, and photographs is 60 years from the publishing date.
The terms of protection as stipulated by the TRIPS agreement for literacy, dramatic, musical works is LIFETIME of the person ‘PLUS 50 years
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The owner of the copyright can:-
Reproduce the work in any material from including those electonic
Perform the work in public or communicate it to the public
Translate or make any adaption of the work
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TRADEMARKS
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A trademark is a visual symbols in the form of a word, device, name, letter or numeral, brand, heading, signature or label or any combination involved in offering the product. The company can be one involved in manufacturing goods or offering services.
A trademarks or a service mark enables a person to make a distinction between products and suppliers.
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ARTICLE 15 ON ‘PROTECTABLE SUBJECT MATTER’
Where signs are not inherently capable of distinguishing the relevant goods or services, members may make registrability depend on distinctiveness acquired through use. Members may require as a condition of registration, that sign be visually perceptible.
Members may make registrability depend on use. However, actual use of a trademarks shall not be a condition for filling an application for registration.
The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.
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Members shall publish each trademark either before it is registered or promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration. In addition, members may afford an opportunity for the registration of trademark to be opposed
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ARTICLE 18 on “ terms of protection” indicates that:-
The term of protection for a trademark shall be for a term of not less than seven years. The registration of a trademark shall be renewable indefinitely.
ARTICLE 19 an “ requirement of use” stipulates that:-
If use is required to maintain a registration may be cancelled only after an uninterrupted period of at least 3 years of non-use, unless the owner of the trademark shows valid reasons for non- usage. The article also goes on to mention than the use of a trademark by a person than the owner can be considered as use of the trademark for the purpose of maintaining the registration.
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REGISTRATION AND INFRINGEMENT
The registration is for 10 years and can be renewed indefinitely subject to the provision of the act.
The registration confers upon the registered user the exclusive right over the use of the geographical indication in relation to the goods that has been registered.
Though the right does not extends to licensing or pledging, it devolves on the legal successo.r on the death of an authorized user
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The Indian act recognizes an infringement when attempt is made to mislead persons by indicating that a good has originated from a particular area or region though it is not really so,
for example, mentioning a tea grown outside West-Bengal, India as Darjeeling Tea.