First published 19 March 2004
Revised 22 October 2010
The Agreement on Trade-related Aspects of Intellectual Property Rights (“TRIPs”) is one of the annexes of The Agreement establishing the World Trade Organization (“the WTO Agreement”). Minimum protection for intellectual property is therefore one of the conditions of WTO membership.
Art. 1 (1) requires WTO members to give effect to the provisions of the Agreement. They may but are not obliged to confer more extensive protection provided it does not contravene its provisions. They are free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
Art. 1 (3) requires members to accord the treatment provided for in this Agreement to the nationals of other members. They must comply with arts 1 to 12 and 19 of the Paris Convention. They must accord the nationals of other members no less favourable treatment than they afford to their own and they must grant to such nationals the same advantages or benefits that they afford to the nationals of any other country.
The protection and enforcement of intellectual property rights has to 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. However, members may also adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided they are consistent with the Agreement. They may also take appropriate measures to prevent the abuse of intellectual property rights, unreasonable restraints of trade or adverse effects on international technology transfer.
Members must comply with arts. 1 to 21 of Berne save for moral rights. Copyright works must include computer programs in source and object code pursuant to art. 10 (1) and compilations or other data. Rental rights should also be conferred on software and cinematographic works. The minimum term should be 50 years from authorized publication or making.
Performers are to be entitled to prevent unauthorized fixations of their performances and reproduction of the fixation, recording companies the direct or indirect reproduction of their sound recordings and broadcasters the fixation, reproduction and re-transmission of their programmes.
Art. 15 requires members to provide for the registration of signs or combinations of signs capable of distinguishing the goods or services of one undertaking from those of others as trade marks. The owner of a registered trade mark is to have the exclusive right to prevent all third parties from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trade mark is registered where such use would result in a likelihood of confusion without his consent. Art. 6bis of Paris (which protects well-known marks) is to apply. Members may provide limited exceptions to the rights conferred by a trade mark such as fair use of descriptive terms and may make special requirements as to use. Other articles provide a minimum term of protection and conditions for licensing and assignment.
Each Member is required by art. 23 to provide legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. Members have agreed in art. 24 (1) to enter into negotiations aimed at increasing the protection of individual geographical indications under that article.
Members are required by art. 25 (1) to protect independently created industrial designs that are new or original. Requirements for protecting textile designs, in particular in regard to cost, examination or publication, may not unreasonably impair the opportunity to seek and obtain such protection. Members may meet this obligation through industrial design or copyright law.
Patents are to be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced pursuant to art. 27 (1). Patentees are to be entitled to prevent third parties not having the owner’s consent from making, using, offering for sale, selling, or importing a patented product or from using a patented process or using, offering for sale, selling, or importing products obtained directly by such process. Other articles permit members to lay down conditions for patent applications, exceptions to the patent monopoly conferred and use of a patented product or process without the patentee’s authorization.
By art. 35 members agree to protect the topographies of integrated circuits in accordance with certain articles of the Treaty on Intellectual Property in Respect of Integrated Circuits as well as prohibiting the import, sale or other commercial distribution a protected layout-design, an integrated circuit in which such layout-design is incorporated, or an article incorporating such an integrated circuit in so far as it contains an unlawfully reproduced layout-design.
Art. 39 requires members to provide means of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices upon the following conditions:
(a) such information is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
Art. 41 requires members to ensure that enforcement procedures are available to permit effective action against infringements, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements provided that they are applied in such a manner as to avoid barriers to legitimate trade and contain safeguards against abuse. These are to include fair and equitable civil judicial procedures in which tribunals have power to secure production of evidence, injunctions, damages and other remedies together with inspection and seizure of infringing items by customs and criminal sanctions in specified circumstances.
Arts. 63 and 64 provide for resolution of disputes between members.
Less Developed Members
Art. 66 delays the application of the application of provisions other than the reciprocal treatment, most favoured nation and multilateral treaty obligations. The initial period was provided by the agreement was 10 years with the possibility of further extensions in the case of the least developed member countries. By a decision dated 29 Nov 2005 the Council of TRIPs extended this period until 1 July 2013.