Copyrights, patents, trademarks, etc. apply to different types of creations or inventions. They are also treated differently. The general objectives of the TRIPS Agreement are set out in the preamble to the Agreement, which reflects the fundamental objectives of the Uruguay Round negotiations, as set out in the area of TRIPS by the Punta del Este Declaration of 1986 and the Mid-term Review of 1988/89. These objectives include reducing distortions and barriers to international trade, promoting effective and adequate protection of intellectual property rights, and ensuring that enforcement measures and procedures for intellectual property rights do not themselves become barriers to legitimate trade. Those objectives should be read in conjunction with Article 7, entitled `Objectives`, according to which the protection and enforcement of intellectual property rights in order to promote technological innovation and the transfer and dissemination of technology, in the mutual interest of producers and users of technological knowledge and in a manner conducive to social and economic well-being, and a balance between rights and obligations. Article 8, entitled « Principles », recognizes the right of Members to take measures on grounds of public health and public interest and to prevent the abuse of intellectual property rights, provided that such measures are consistent with the provisions of the TRIPS Agreement. Undisclosed information includes trade secrets and test data. Trade secrets must be protected against unauthorized use, including breach of contract or trust or other actions that violate honest business practices. Such protection presupposes that the information is secret, that it has commercial value and that its owner has taken reasonable steps to keep it secret. Trips applies the fundamental principles of international trade to Member States with respect to intellectual property, including national treatment and most-favoured-nation treatment. The TRIPS Agreement sets minimum standards for the availability, scope and use of seven forms of intellectual property: copyrights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits and undisclosed information (trade secrets). It establishes permissible limitations and exceptions to reconcile the interests of intellectual property with those of other areas such as public health and economic development.
(The full text of the TRIPS Agreement and an explanation of its provisions are available on the WTO WEBSITE under www.wto.org.) According to the TRIPS Agreement, industrialized countries should have fully implemented the Agreement by 1 January 1996. Members of developing countries and members in transition to a market economy have the right to postpone the full implementation of TRIPS commitments until 1 January 2000. Least developed members have until 1 January 2006 to fulfil their obligations, with the possibility of a new transition upon request. Developing countries that did not grant patent protection for certain areas of technology at the time of filing were granted an additional five years until January 1, 2005 to provide such protection. In November 2005, the 2006 transition period for the least developed countries was extended until 1 July 2013. Notifications – Members` Transparency Toolkit Members exchange information on their intellectual property laws, regulations and practices through communications to the TRIPS Council. The toolkit contains procedures for the exchange of information and other tools for the transparency work of members. The Uruguay Round achieved this.
The WTO TRIPS Agreement aims to reduce gaps in the way these rights are protected and enforced worldwide and to subject them to common international rules. It establishes minimum standards for the protection and enforcement that each government must grant to the intellectual property of nationals of other WTO Members. Patents, designs, integrated circuit designs, geographical indications and trademarks must be registered for protection. The registration contains a description of what is protected, the invention, the design, the trademark, the logo, etc., and this description is public information. The TRIPS Agreement contains certain provisions on well-known marks that complement the protection required by Article 6bis of the Paris Convention, which has been incorporated by reference into the TRIPS Agreement and requires members to refuse or cancel registration and prohibit the use of a mark that is contrary to a mark with a reputation. On the one hand, the provisions of that article must also apply to services. Second, it is appropriate to require that knowledge in the relevant field of the public acquired not only through the use of the trade mark but also by other means, including its promotion, be taken into account. In addition, the protection of registered well-known marks must extend to goods or services which are not similar to those for which the mark has been registered, provided that their use suggests a link between those goods or services and the proprietor of the registered trade mark and that the interests of the proprietor may be prejudiced by such use (Article 16, paragraphs 2 and 3).
After the Uruguay Round, GATT became the basis for the creation of the World Trade Organization. Since ratification of the TRIPS Agreement is a mandatory condition for becoming a member of the World Trade Organization, any country wishing easy access to the many international markets opened by the World Trade Organization must adopt the strict intellectual property protection laws required by the TRIPS Agreement. That is why the TRIPS Agreement is the most important multilateral instrument for the globalization of intellectual property law. States such as Russia and China[5], whose accession to the Berne Convention was highly unlikely, found the prospect of WTO membership a powerful temptation. How to resolve intellectual property disputes among WTO Members More generally, the TRIPS Agreement recognizes that right holders can use their rights to restrict competition or impede the transfer of technology. The agreement gives governments the right to take action against anti-competitive practices. In some cases, the TRIPS Agreement also exempts from some of the conditions necessary for the grant of a compulsory license of a patent when the government grants the compulsory license to remedy a practice qualified as anti-competitive. The TRIPS Agreement plays a crucial role in facilitating trade in knowledge and creativity, resolving trade disputes over intellectual property, and ensuring the flexibility of WTO Members to achieve their national objectives. The agreement is a legal recognition of the importance of the links between intellectual property and trade. The terms of the TRIPS Plus Agreement, which prescribe standards that go beyond the TRIPS Agreement, were also discussed. [38] These free trade agreements contain conditions that limit the ability of governments to introduce competition for generic manufacturers. In particular, the United States has been criticized for pushing protection far beyond the standards prescribed by the TRIPS Agreement.
U.S. free trade agreements with Australia, Morocco, and Bahrain have expanded patentability by mandating the availability of patents for new uses of well-known products. [39] The TRIPS Agreement allows for compulsory licensing at a country`s discretion. U.S. free trade agreements with Australia, Jordan, Singapore, and Vietnam have limited the application of compulsory licenses to emergencies, antitrust remedies, and cases of non-commercial public use. [39] The scope of protection and enforcement of these rights varies considerably from one end to the other; and as intellectual property has become increasingly important in trade, these differences have become a source of tension in international economic relations. The new internationally agreed trade rules for intellectual property rights were seen as a means of introducing more order and predictability and resolving disputes more systematically. As in the main existing intellectual property conventions, the fundamental obligation of each member country is to accord the treatment of intellectual property provided for in the convention to persons of other members. Article 1.3 defines who these persons are. Such persons are called nationals, but include natural or legal persons who have close links with other members without necessarily being nationals of them. The criteria for determining which persons should therefore benefit from the treatment provided for in the Agreement are those set out for this purpose in the main existing WIPO conventions on intellectual property, which of course apply to all WTO Members, whether or not they are Parties to these Agreements.
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