Genesis of GATT and WTO

INTRODUCTION
 Trade is essential for growth and development of a Country.
 Barter system of trade led to problems - lack of coincidence of wants.
 After the Second World War - International Trade Organization (ITO)-1946.
 The General Agreement on Tariffs and Trade (GATT)-1947, Geneva, Switzerland.
 A multilateral treaty, signed by 23 Countries
FOUNDING MEMBERS OF THE GATT
1. Australia 13. Lebanon
2. Belgium 14. Luxembourg
3. Brazil 15. Netherlands
4. Burma (now Myanmar) 16. New Zealand
5. Canada 17. Norway
6. Ceylon (now Sri Lanka) 18. Pakistan
7. Chile 19. Southern Rhodesia
8. China (now Zimbabwe) 20. Syria
9. Cuba 21. South Africa
10. Czechoslovakia 22. United Kingdom
11. France 23. United States
12. India
SALIENT FEATURES OF THE GATT
It was neither an organization nor a court of justice, but a multilaterally agreed
treaty related to tariffs imposed on goods that covered 80 percent of world trade. It was a
decision-making body with a set of rules for the conduct of international trade in goods,
and formulated mechanisms for trade liberalisation. It was a forum where contracting
parties met from time to time to discuss and solve trade problems, and also negotiated to
enlarge their trade volumes. The GATT rules provided for the settlement of trade disputes,
called for consultations, waived trade obligations, and even authorized retaliatory
measures.
AIMS OF GATT
 Expansion of International Trade
 Increase of World production by ensuring full employment in participating nations
 Development and full utilization of World resources
 Raising standard of living of the World community
GATT ROUNDS; The GATT negations were known as “rounds “and are as follows

Round Year Major outcomes Countries

I – Geneva 1947 Signature of the first GATT Round 23

II- Annecy 1949 Tariff reduction on specific products 13

III- Torquay 1950-51 Tariff reduction on specific products 38

IV- Geneva 1956 Tariffs 26

V- Dilon 1960-61 Introduction of European Community 26

for the first time and 20% tariff
reduction

VI- Kennedy 1964-67 33% reduction in restrictions on 62

manufactured goods

VII- Tokyo 1973-79 Non- Tariff restriction, etc. 102

VIII- 1986-93 Agriculture, Service, TRIPs, TRIMs 123

Uruguay

IX- 1995 Trade related negotiations 123

Murrakesh

How Uruguay Round is Different from the Earlier Rounds?

The eighth round of GATT negotiations, which started in September 1986, began
at Punta del Este in Uruguay. The negotiations were expected to be concluded in four
years, but on account of the differences among countries on certain critical areas like
agriculture, agreement could not be reached on time. In the early 1990s, to break this
deadlock, Arthur Dunkel, the then Director General of GATT, compiled a detailed
document, which was popularly known as the Dunkel Draft. On December 15'h 1993, this
Draft eventually evolved into the final Act-28 agreements. The original GATT treaty i.e.
GATT 1947, Covered rules governing international trade in goods only. During the
Uruguay Round, negotiations were held in two new areas, viz. intellectual property rights
and services. The eighth round was entirely different from the previous rounds because it
included a number of new subjects for negotiation. On 14th November, 2001, WTO
members adopted a Ministerial Declaration, launching the ninth round of trade
negotiations in Doha, Qatar. The negotiations are set to be concluded by 1 January 2005. It
is the first WTO round.
It Includes
The GATT 1947 text, as modified in the Uruguay Round and known as the GATT
1994 text; and the complete results of the Uruguay Round (UR) of multilateral trade
negotiations. The WTO is the successor to GATT. In April 1994, GATT members signed
an agreement in Marrakesh, Morocco to establish the WTO. On 1st January 1995, it
started operations and there were 128 members of the WTO. This number has increased to
144 by 15 April 2002 (WTO Annual Report 2002, WTO). India is a founding member of
GATT as well as the WTO. Recently, China joined as 143rd member, while Taiwan as the
l44'h member. Many are in queue viz. Nepal, Bhutan, Algeria, Cambodia, Kazakhstan,
Lebanon, Russian Federation and many more.

The Key Features of the WTO

It is a single institutional framework encompassing the GATT as modified by the
Uruguay Round Negotiations, and all agreements and arrangements concluded under it. It
is headed by a Ministerial Conference which meets once every two years. The General
Council of the organization overseas the operations of the organization and its ministerial
decisions, and acts as a dispute settlement body and a trade review mechanism. The
General council establishes subsidiary bodies: a Goods Council, a Services Council, and a
TRIPS Council. The WTO framework ensures a single undertaking approach to results
from the Uruguay Round; thus membership in the WTO involves accepting all the results
of the Round without exception.
The Functions of the WTO
To facilitate the implementation, administration and operation of the Uruguay
Round Agreements. To provide the forum for negotiations among member concerning
their multilateral trade relations in matters under the annexed agreements, as well as forum
for further negotiations concerning multilateral trade relations. Related to this is the role of
providing the necessary implementation framework for agreements reached in these
negotiations. To administer the integrated disputes settlement mechanism linking rights
and obligations in trade in goods with those in services and intellectual property rights. To
undertake the administration of the Trade Policy Review Mechanism (TPRM). To initiate
and conduct co-operation, as appropriate, with other multilateral institutions such as IMF,
the World Bank and its affiliated agencies.
DIFFERENCES BETWEEN GATT AND THE WTO
GATT WTO
GATT was ad hoc and provisional WTO has a sound legal basis, which has
body been created by an international treaty
ratified by the governments and
legislatures of member states
GATT was a set of rules (a text with The agreements that form the WTO are
no legal organizations to back it up) permanent and binding for all members
and procedures relating to the
multilateral agreements of a selective
nature, which were not binding on
contracting parties
The GATT disputes settlement system The WTO dispute settlement mechanism
was slow and not binding for the is faster and binding. The saying goes that
parties to the dispute where as GATT was toothless, the WTO
has teeth.
GATT was a forum where the The WTO, on the other hand, is a properly
contracting parties met to discuss and established rules-based body, where
solve problems relating to international decisions are time bound. WTO members are
trade. There were long, protracted required to meet at least once every two
negotiating rounds, which took years to years, in a session called the Ministerial
complete. Conference, which is the highest decision-
making body of the organization.
 GATT WTO
The GATT rules were applied to trade in The WTO not only covers trade in goods, but
goods only also services, intellectual property rights,
agriculture and textiles & Clothing

Ministerial Conferences

Particulars Date/Year Venue Major Outcomes

1st 9-13 Singapore Agreement on Information technology and

Conference December introduction of new issues
1996

2nd 18-20 May Geneva Standstill Agreement on Electronic Commerce

Conference 1998

3rd 1999 Seattle Market Access, Agriculture, Services, Trade

Conference (could not Facilitation, E-commerce
be
concluded
)

4th 9-14 Doha, Implementation problems, Environment,

Conference November Qatar Investment, Competition, TRIPs,
2001 Transparency in Government Procurement,
Trade Facilitation, Two new working groups
on Trade, Debt and Finance and Trade and
Transfer of Technology were set up.

5th 10-14 Cancun, Trade negations failed on various issues

Conference September Mexico especially on agriculture
2003

The Structure of WTO

 Ministerial Conference (meets every 2
Years) each country has an equal vote

Dispute Settlement General Council (meets ‘as Trade Policy Review

Body appropriate’ between Mechanism
Ministerial Conferences)

Committee on Committee on
Trade & Budget, Finance
Development and Administration

Committee on Balance Committees under

Of Payments Plurilateral Agreements

Council for Council for Council for Trade Related

Trade in Trade in Aspects of Intellectual
Goods Services Property Right

Committees on Committees on
Individual Individual
Agreements Agreements

Components of WTO
The important components of WTO are as follows
1. Trade Related Intellectual Properties Right (TRIPS)
2. Trade Related Investment Measures (TRIMS)
3. General Agreement on Trade in Services ( GATS )
4. Agreement on Agriculture ( AOA )
5. Dispute Settlement Mechanism ( DSM )
6. Sanitory and Phytosanitory Measures
1. Trade related Intellectual Properties Right (TRIPS)
These are envisaged to create a globally uniform system on patents with the burden
of proof shifted to the alleged violator of a patent law. It would allow, for the products
patent’s in many areas, instead of process patent now prevailed in most of the countries.
Features of TRIPS
1. Copy right protection
2. Trade marks
3. Patent’s; product or process
4. Term of patent
5. Compulsory license
6. Process patents
7. Protection to Lay-out Designs or Integrated Circuit
 8. Protection to un disclosed Information
9. Transitional period
2. Trade Related Investment Measures (TRIMS)
Government often imposes conditions and restrictions on direct flow of foreign
investment in accordance with certain national priorities. Such measures taken in the
interest of the country are known as TRIMs. TRIMs demand national treatment to the
Transitional Corporation (TNCs) and insist that, multinational capital should be treated on
par with the national capital. The TRIMs should not affect.
 Local content requirement involving use of certain kind of inputs in production,
 Trade balancing requirement limiting import content in proportion to exports,
 Trade balance requirement playing restrictions on import content to an amount of the
product exported
 Restrictions on access to foreign earnings to an amount of foreign earnings attributed
to the enterprise
Developing countries want to retain the flexibility to choose investment promotion
policies that they consider necessary to choose to fulfill their developmental needs.
3. Agreement on Agriculture (AOA)
In order to grant special protection and favours to transitional agribusiness,
agriculture is also brought under purview of WTO. In India AOA has given space to
multinational seed companies and others access over agricultural resources and markets.
Under the Agreement on Agriculture there are three aspects viz., Market access, Export
competitiveness and domestic support policies. For example under domestic support
policies, developing countries are required to reduce aggregate measures support by 20%
over six years. In the case of market access, quantitative restrictions to be removed and
free trade is required for better competitiveness in export marketing.
4. General Agreement on Trade in Service (GATS)
In the recent years there has been a tremendous transformation in service sector
and thus TNCs are demanding not to put restriction on movement of personnel this
resulted in General Agreement on Trade in Services (GATS). GATS sets out the
framework under which government can negotiate market access negotiations i.e. there is
no general obligation imposed on the need to provide access to Foreign Service. The
GATS framework allows participating countries to seek relaxation of control on movement
of personnel.
5. Dispute Settlement Mechanism (DSM)
There is a new dispute settlement mechanism in the WTO with more powers to
enforce ruling over non-tariff barriers that existed in the past. To the extent, the laws and
policies of any contracting parties are made consistent with the Uruguay round
agreements, vulnerability to disputes being raised against the contracting party are
considerably reduced. In so far as retaliation is concerned, it is envisaged only as a last
rescue in the dispute settlement machinery.
HOW DOES THE WTO FUNCTION?
The Ministerial Conference, composed of representatives of all the members,
heads the WTO and is the highest policy making body. It meets at least once in every two
years. It takes all necessary actions to carry out the functions of the WTO. It also takes
decisions on all relevant matters under any of the trade agreements covered by the WTO.
In the WTO, there is a General Council composed of representatives of all the members,
which oversees the operation of the agreements and ministerial decisions on a regular
basis. It also acts as a Dispute Settlement Body and a Trade Policy Review Body, each
with its own chairman. Other main bodies which report to General Council, are the
Council for Trade in Goods, the Council for trade in Services, the Council for Trade-
Related Aspects of Intellectual Property Rights (TRIPs). These councils, in turn have their
subsidiary bodies. The Councils and subsidiary bodies meet as necessary to carry out their
respective functions.
There are other forums, known as committees, which cover specific issues and
carry out the functions assigned to them by the General Council. The Director General
(DG), appointed for period of four years by the Ministerial Conference, heads the
Secretariat of the WTO. The DG appoints the members of the staff of the Secretariat and
determines their duties and conditions of service in accordance with the policy guidelines
adopted by the General Council. The WTO continues the practice of decision-making by
consensus, as followed under GATT 1947. Where a decision cannot be arrived at by
consensus, the matter is to be decided by 2/3rds majority voting on the basis of 'one
country, one vote'. To date, all decisions at the WTO have been taken and adopted by
consensus.
HOW DOES THE WTO SELECT AN AREA/ISSUE TO DEAL WITH?
Consensus among the member countries. As such, there are no set norms or list of
defined subjects/issues to be taken up. Comply with raising standards of living and ensure
full employment and large and steadily growing real incomes. In general, the following
steps are taken when a new issue enters the WTO.
A country or a group of countries put forward a submission on the subject to the
WTO General Council. They may request the General Council to set up a working
group/party on the subject, which then discusses related and relevant issues. The working
group is required to prepare and submit a report to the General Council. The WTO
Ministerial Conference will then take a decision, after discussions, on proceeding with
negotiations or otherwise. Negotiations start if there is a consensus. It is not necessary for
an agreement to be reached after negotiations conclude.
WHAT ARE THE SPECIAL CONCESSIONS FOR POOR COUNTRIES UNDER
THE WTO AGREEMENTS?
The WTO has certain special provisions to deal with the specific needs of poor
(developing and least developed) countries:
1 Extra time for developing and least developed countries to fulfill their
commitments under most of the agreements.
Developed countries were required to reduce their Aggregate Measure of Support
(AMS) by 20 percent over the six years from 1995. For developing countries, the
reduction was 13.3 percent, over ten years. Least developed countries were not required to
make any reduction.
2 Provisions designed to increase developing and least developed countries' trading
opportunities through greater market access in developed countries;
For those products whose trade was extremely restricted earlier; countries were
required to give Minimum Access Opportunity commitments. The commitments stipulate
establishment of tariff quota equal to 3% of domestic consumption and raising to 5% by
2001 for developed countries and 2005 for developing countries.
WHAT ARE THE SPECIAL CONCESSIONS FOR POOR
COUNTRIES UNDER THE WTO AGREEMENTS?
1. Provisions requiring WTO members to safeguard the interests of developing and
least developed countries while adopting domestic measures:
The developed countries are to cut their agriculture tariffs by an average of 36
percent over six years Developing countries are committed to slash the same by 24
percent in ten years. The least developed countries are not bound to effect any tariff cut
under the agreement.
2. Provisions for technical assistance to developing and least developed countries,
e.g. helping them to deal with commitments on standards, etc.
The new trade round that launched last November 2001 at Doha. Initiated the Global
Trust Fund with a target amount of core funding totaling CHF 30 million. This fund aims
to provide resources to developing countries, opportunity to initiate an urgent and
necessary policy dialogue on several issues at the core of technical co-operation/assistance
and capacity-building. The same will also focus the least developed countries and
countries without representatives in Geneva.
WHY SHOULD INDIA BE A MEMBER OF THE WTO
1. There are arguments both for and against India's membership of the WTO.
2. Ideally the answer should depend on the perception of what India needs from the
multilateral trading system and what will be beneficial for the people of the country.
3. India has to fulfill two basic tasks for the betterment of living standards:
4. An improvement in the industrial and agricultural base, and the alleviation of mass
poverty.
5. For India, a rules-based inter-governmental body like the WTO seems to be more of
a necessity than an option.
6. However, negative opinions have been expressed about the WTO, and some have
advocated leaving it.
7. The moot question is what would the country achieve if it were not a member of the
WTO. It would perhaps be falling out of the frying pan into the fire.
8. If it were to leave, the country would have to negotiate every provisions of each
agreement which it deemed fit with all its other trading partners.
9. Moreover, unlike Mexico and certain small European countries, India is not a
member of any large regional trading blocks like NAFTA, European Union, and
ASEAN etc. So far, India's efforts to form a regional trading arrangement at the
South Asian level have not taken off.
10. On the other hand, as a member of a rules-based multilateral trading system, India
can save precious human and monetary resources on negotiations.
11. If India came out of the WTO, it would become isolated in the international political
arena.
12. Can our country afford to be a 'bad' international citizen?
13. Why countries like China have joined the WTO? In 1947, GATT started with 23
nations. The number rose to 128 when the WTO was established in 1995. Today it
has 144 members.
14. Furthermore the following countries are in the queue to join the WTO. In this
process they are going through much bargaining with each of the existing members.
Till date, not a single country member of the WTO is contemplating leaving the
WTO.
IS THE WTO A THREAT OR AN OPPORTUNITY FOR INDIA
The WTO is a domestic organization with a set of rules to be followed by all
member countries. Therefore it should not pose any hidden threat for India or any other
country. The more relevant question is whether or not it is useful to be part of such a rules-
based system. A yes or no answer to the question would not really be appropriate since the
issue is not one of threats, but one of advantages and disadvantages.
We cannot ignore the fact that the formation of the WTO was a historical necessity.
Without the WTO, the multilateral trading system would have been in huge trouble. When
developing countries were liberalising their economies, they felt the need for better export
opportunities. Despite the reluctance shown by big powers for the formation of the WTO,
middle-level trading countries (like South Korea and Singapore) and developing countries
(particularly India and Pakistan) were in favour of it. It must be understood that the
opening up of global trade/competition is not substitute for economic development. It is an
outcome. The WTO does provide opportunities for countries to grow and realise their
export opportunities, provided appropriate domestic policies are in place.
Instead of commenting on the inherent flaws or biases in the WTO, India needs to work
within the existing framework. Negotiations are guided by give-and-take principles, so
India must work out a strategy to obtain maximum benefits.
WHY SHOULD AN INDIVIDUAL BE AWARE OF THE WTO
An individual should be aware of the WTO because s/he is a consumer. Trade and
trade policies are of the great importance to consumers everywhere. Consumers are the
ultimate beneficiaries of freer trade. They get better access to and choice of products to be
consumed and increased competition results in the availability of better quality goods at
fair prices. In a world dominated by increasingly complex markets, consumers should
ensure that their rights are fully protected and are not abused. The market, in its pursuit of
profit, is forging ahead with newer ways of cashing in on consumer vulnerabilities. With a
minimum level of knowledge on the international trade system as governed by the WTO,
an empowered consumer will be able to protect his/her rights and interests in areas as
diverse as medicines, vehicles and financial services.
AGREEMENT ON AGRICULTURE
Objective:
 The primary objective of the agreement is to reform the principles of, and
disciplines on, agricultural policy as well as to reduce the distortions in agricultural
trade caused by agricultural protectionism and domestic support.
 The purpose of agreement, then, is to curb the policies that have, on a global level,
created distortions in agricultural production and trade
These policies can be divided into the following three categories:
1. Market Access Restrictions,
2. Domestic Support and
3. Export Subsidies.
I. Market Access Restrictions: Protecting Producers from International Competition
 The maintenance of a positive price differential between the domestic price and the
world market price of farm commodities forces domestic consumers to pay higher prices
for food commodities than they would in a more liberal marketing environment. For an
exporting, or potentially importing country to maintain support to domestic producers
through market price support, some corresponding measures to restrict market access are
necessary. These typically take the form of: tariffs, variable levies, import quotas and other
non-tariff barriers
II. Domestic Support Policies (DSP): Their Effect on Production and Trade
Support may be provided in the form of direct payments, where there is a direct
transfer of (usually) government money to producers. It may be given through policies that
intervene in the market, in order to raise the price of the farm product, or reduce the price
of the inputs. Or it may result from public provision of services aimed specifically at
agricultural producers.
The following policies frequently do have distortionary effect
1. Market Price Support: This is support, which raises the domestic market price above
the world market price so that producers receive more for their output than they would
under free market conditions. It may be brought about through
 Government intervention in domestic market
 Border control that restrict the level of imports
 A combination of the two
2. Deficiency Payments: These are direct payments to farmers, made in order to close the
gap between a low market price and a guaranteed minimum price, as set and
administered by the government
3. Input Subsidies: These measures have the essential effect of reducing the unit cost
faced by the producers in their use of farm inputs. They allow farmers to produce more
with a given amount of financial resources that would be the case without such
subsidies.
III. Export Subsidies: Disposing of Surpluses on the World Market
Where the domestic price of the commodity is higher than the world price of the
commodity, the sale of surpluses on the world market can only occur at a loss unless the
exporter is provided with a subsidy. Such export subsidies have been typical of the path
chosen by governments in their efforts to dispose of domestic surpluses
The Multi-coloured “Boxes” of Subsidies
Subsidies are classified into three groups to determine whether or not they need to
be reduced and action can be taken against them under the WTO’s dispute settlement
mechanism. They are
 The Green Box: Supports to agriculture, which are deemed to be non, or
minimally, trade distorting. They do not need to be reduced under the Agreement.
 The Blue Box: Direct payments under “production-limiting” programmes. They
need to be cut may be actionable by other WTO Members.
 The Amber Box: Export subsidies that are considered trade distorting. They are not
allowed, and are open to challenge by other countries.
AGREEMETNS COMPRISING THE WTO
 1 MULTILATERAL AGREEMENTS ON TRADE IN GOODS
a) General Agreement on Tariffs and Trade 1994
b) Agreement on Agriculture
c) Agreement on Textiles and Clothing
d) Agreement on Technical Barriers to Trade
e) Agreement on Trade Related Investment Measures
f) Agreement on Anti-dumping measures
g) Agreement on Implementation of the General Agreement on Tariffs and Trade 1994
h) Agreement on Preshipment Inspection
i) Agreement on Rules of Origin
j) Agreement on Import Licensing Procedures
k) Agreement on Subsidies and Countervailing Measures
l) Agreement on Safeguards
2 GENERAL AGREEMENT ON TRADE IN SERVICES
3 AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENTS OF
4
DISPUTES
5 TRADE POLICY REVIEW MECHANISM
6 PLURILATERAL AGREEMENTS (not all member are signatory to these agreements
a) Agreement on Civil aircraft
b) Agreement on Government Procurement
c) Agreement on Dairy Products (terminated in 1998)
d) Agreement on Bovine meat (terminated in 1999)

Trade Competitiveness
 There are four measures.
 Nominal Protection Coefficient (NPC)
 Effective Protection Coefficient (EPC)
 Effective Subsidy Coefficient (ESC) and
 Domestic Resource Cost (DRC)
Nominal Protection Coefficient (NPC)
NPC is the simplest indicator of domestic protection and export competitiveness
and is given by:
NPC = Pid / Piw
Where,
NPCi = Nominal Protection coefficient of the Commodity i
Pid = Domestic Price of Commodity i
Piw = World reference price (border price- equivalent) of commodity i,
adjusted for transportation, handling and marketing expenses.
NPC > 1indicates effective incentives to producers compared to the free
trade scenario
NPC lower than unity indicates that the commodity is disprotected.
NPC < 1 indicates the commodity is exportable
NPC > 1 indicates the commodity is importable
Effective Protection Coefficient (EPC)
It is defined as the ratio of value added at domestic prices to the value added at
border prices expressed in local currency and is given by:

k
Qi(Pi - ∑AijPjd)
d

i=1
EPCi =
k
Qi(Pi - ∑AijPjw)
w

j=1

Qi’s in this expression cancel out and the whole expression in terms of value added
reduces to:
EPCi= Vid / Viw
Where,
EPCi = Effective Protection Coefficient of the Commodity i
Qi = Quantity of output of ith commodity
Pid = Domestic price of commodity i
Piw = World reference price (border price-equivalent) of commodity i,
adjusted for transportation, handling and marketing expenses
Aij = Quantity of jth input required to produce a unit of commodity i
Vid = Value added at domestic prices.
Viw = Value added at world reference prices (border price-equivalent).
EPC>1 indicates effective incentives to producers compared to free trade.
Effective Subsidy Coefficient (ESC)
ESC is further improvement over NPC as it takes into account the subsidies on
traded inputs. It is the ratio of value added at domestic prices adjusted for subsidies and
taxes to the value added at border price. It is calculated as under:

K j j
d d
Qi[(P - ∑AijPj ) +∑AijSj - ∑AijTj)]
i
i=1 j=k+1 j=k+1
ESCi =
k
Qi(Piw - ∑AijPjw)
\ j=1

Where Si and TI are subsidies and taxes respectively while other expressions are
same as mentioned above.
Domestic Resource Cost (DRC)
DRC is the value of domestic resources needed to earn a unit of foreign exchange
through export or save a unit of foreign exchange through import. In DRC calculations,
value of domestic resources is estimated at their opportunity cost or shadow prices. DRC
is calculated as under:

j
∑(AijPjs)
j=k+1
DRCi =
k
(Piw - ∑AijPjw)
j=1

In this expression Pjs refers to shadow price of jth primary input. If the ratio is
more than unity export is not profitable.
Table: Index of export quantity, value and prices for world merchandise export of
agriculture and manufacture sectors before and after WTO (base: 1990=100)

Years Agricultural export Manufacture export

Value Price Quantity Value Price Quantity
1990 100 100 100 100 100 100
1991 101 98 103 103 100 104
1992 108 99 109 112 103 109
1993 104 94 111 111 99 112
1994 119 99 120 128 102 126
1995 139 111 126 152 111 137
1996 143 109 131 159 109 146
1997 142 103 139 167 102 163
1998 135 97 139 169 99 172
1999 131 92 143 175 96 182
Annual growth rate (%)
Before 7.8 2.2 5.2 10.4 2.2 7.4
After WTO -1.44 -4.28 3.37 3.78 -3.8 8.21
Before WTO: 1990-1995, After WTO: 1995-1999
Table: Agricultural Exports of Developed and Developing Countries and India,
Before and After WTO (Unit: US$)

Year World Developing Developed India Developing India's Share

Total Countries Countries in World
1990 212 86 125 3.52 43.1 1.66
1991 211 87 124 3.2 44.6 1.51
1992 226 89 137 3.03 43.4 1.34
1993 224 89 135 4.15 43.1 1.85
1994 258 107 151 4.37 44.6 1.69
1995 297 122 175 6.32 44 2.13
1996 324 134 190 6.83 45.1 2.11
1997 331 139 192 6.84 45.5 2.07
1998 306 133 173 6.21 46.1 2.03
1999 289 125 164 5.67 45.6 1.96
Annual growth rate (%)
Before 8.81 9.3 8.47 15.65 0.77 4.48
WTO
After -3.6 -2.24 -4.56 -5.65 0.37 -2.3
WTO
 Table: Series on World Export Prices of Agriculture and Manufacture Sectors (Base:
1990=100)

Year Agriculture Manufactured Terms of

Products Products Trade
1990 383 492 78
1991 374 490 76
1992 378 506 75
1993 359 486 74
1994 379 501 76
1995 424 546 78
1996 418 535 78
1997 393 503 78
1998 374 486 77
1999 354 473 75
2000 335 454 74
Source: Historical Series, Merchandise Export, WTO Secretariat, Geneva
 Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs)

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is

an international treaty administered by the World Trade Organization (WTO) which sets
down minimum standards for most forms of intellectual property (IP) regulation within all
member countries of the World Trade Organization. It was negotiated at the end of the
Uruguay Round of the General Agreement on Tariffs and Trade (GATT) treaty in 1994.

Specifically, TRIPs deals with: copyright and related rights, such as rights of performers,
producers of sound recordings and broadcasting organisations; geographical indications,
including appellations of origin; industrial designs; integrated circuit layout-designs;
patents, including the protection of new varieties of plants; trademarks; trade dress; and
undisclosed or confidential information, including trade secrets and test data. TRIPs also
specifies enforcement procedures, remedies, and dispute resolution procedures.

The obligations under TRIPs apply equally to all member states, however developing
countries were allowed extra time to implement the applicable changes to their national
laws, in two tiers of transition according to their level of development. The transition
period for developing countries expired in 2005. The transition period for least developed
countries was extended to 2016, and could be extended beyond that.

The TRIPS agreement introduced intellectual property law into the international trading
system for the first time, and remains the most comprehensive international agreement on
intellectual property to date. In 2001, developing countries concerned that developed
countries were insisting on an overly-narrow reading of TRIPS, initiated a round of talks
that resulted in the Doha Declaration: a WTO statement that clarifies the scope of TRIPS;
stating for example that TRIPS can and should be interpreted in light of the goal "to
promote access to medicines for all."

TRIPS has been criticised by the alter-globalization movement, regarding for example its
consequences for the AIDS pandemic in Africa.

Background and history

TRIPs was added to the General Agreement on Tariffs and Trade (GATT) treaty at the end
of the Uruguay Round of trade negotiations in 1994. Its inclusion was the culmination of a
program of intense lobbying by the United States, supported by the European Union,
Japan and other developed nations. Campaigns of unilateral economic encouragement
under the Generalized System of Preferences and coercion under Section 301 of the Trade
Act were also influential. In turn, the United States strategy of linking trade policy to
intellectual property standards can be traced back to the entrepreneurship of senior
management at Pfizer in the early 1980s, who mobilised corporations in the United States
and made maximising intellectual property privileges the number one priority of trade
policy in the United States (Braithwaite and Drahos, 2000, Chapter 7).

After the Uruguay round, the GATT became the basis for the establishment of the World
Trade Organization. As ratification of TRIPs is a compulsory requirement of World Trade
Organization membership, any country seeking to obtain easy access to the numerous
international markets opened by the World Trade Organization must enact the strict
intellectual property laws mandated by TRIPs.

Furthermore, unlike other international agreements on intellectual property, TRIPs has a

powerful enforcement mechanism. States which do not adopt TRIPs-compliant intellectual
property systems can be disciplined through the WTO's dispute settlement mechanism,
which is capable of authorising trade sanctions against non-compliant states.

The requirements of TRIPs

TRIPs requires member states to provide strong protection for intellectual property rights.
For example, under TRIPs:

 Copyright terms must extend to 50 years after the death of the author, although
films and photographs are only required to have fixed 50 and 25 year terms,
respectively.

 Copyright must be granted automatically, and not based upon any "formality", such
as registrations or systems of renewal.

 Computer programs must be regarded as "literary works" under copyright law and
receive the same terms of protection.

 National exceptions to copyright (such as "fair use" in the United States) must be
tightly constrained.

 Patents must be granted in all "fields of technology," although exceptions for

certain public interests are allowed (Art. 27.2 and 27.3 [1]).

 Exceptions to patent law must be limited almost as strictly as those to copyright

law.

 In each state, intellectual property laws may not offer any benefits to local citizens
which are not available to citizens of other TRIPs signatories by the principles of
national treatment (with certain limited exceptions, Art. 3 and 5 [2]).

 TRIPs also has a most favoured nation clause.

Many of the TRIPs provisions on copyright were imported from the Berne Convention for
the Protection of Literary and Artistic Works and many of its trademark and patent
provisions were imported from the Paris Convention for the Protection of Industrial
Property.

Controversy

Since TRIPs came into force it has received a growing level of criticism from developing
countries, academics, and Non-governmental organizations. Some of this criticism is
against the WTO as a whole, but many advocates of trade liberalisation also regard TRIPS
as bad policy. TRIPS' wealth redistribution effects (moving money from people in
developing countries to copyright and patent owners in developed countries) and its
imposition of artificial scarcity on the citizens of countries that would otherwise have had
weaker intellectual property laws, are a common basis for such criticisms.

The most visible conflict has been over AIDS drugs in Africa. Despite the role which
patents have played in maintaining higher drug costs for public health programs across
Africa, this controversy has not led to a revision of TRIPs. Instead, an interpretive
statement, the Doha Declaration, was issued in November 2001, which indicated that
TRIPs should not prevent states from dealing with public health crises. After that point,
PhRMA, the United States and, to a lesser extent, other developed nations, began working
to minimise the effect of the declaration. TRIPs provides for "compulsory licencing",
which allows a national government to issue a licence for the production of drugs without
the consent of the patent owner as long as those drugs are primarily for the domestic
market. A 2003 agreement loosened the domestic market requirement, and allows
developing countries to export to other countries where there is a national health problem
as long as drugs exported are not part of a commercial or industrial policy [3]. Drugs
exported under such a regime may be packaged or colored differently to prevent them
from prejudicing markets in the developed world.

Indeed, in 2004, the main way that Intellectual Property rules hinders access to medicines
comes not so much from the TRIPs Agreement itself but rather from regional trade
agreements with more stringent IP requirements, or from the way the TRIPs Agreement
has been implemented at the national level.

Implementation of Flexibilities

A 2005 report by the WHO found that many developing countries have not incorporated
TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection,
use of broad research and other exceptions to patentability, etc) into their legislation to the
extent authorized under Doha. [4]

This is likely caused by the lack of legal and technical expertise needed to draft legislation
that implements flexibilities, which has often led to developing countries directly copying
developed country IP legislation.[5]

It has been argued that the practice of using developed-country protection levels (whether
voluntarily adopted or imposed through bilateral trade agreements) is detrimental to
developing countries, based on the idea that countries have different optimum levels of
protection according to their stage of development.[6]

Software and business method patents

Another recent controversy has been over the TRIPs Article 27 requirements for
patentability "in all fields of technology", and whether or not this necessitates the granting
of software and business method patents.

Use for enforcement of industrial espionage cases

The Clinton Administration submitted and won 13 TRIPs international intellectual

property theft cases. As of August 2005, the Bush Administration has not submitted any
(12:40-16:30).
Post-TRIPs expansionism

Although the requirements of TRIPs are, from a policy perspective, extremely stringent,
the lobby groups working to expand various IP laws ("intellectual property laws") have
certainly found "limitations" in it.

These have formed the basis for various bilateral and multilateral initatives since 1994:

The creation of anti-circumvention laws to protect digital restrictions management

systems. This was achieved through the 1996 World Intellectual Property Organization
Copyright Treaty (WIPO Treaty) and the WIPO Performances and Phonograms Treaty.

The desire to further restrict the possibility of compulsory licenses for patents has led to
provisions in recent bilateral US trade agreements.

It is one thing for states to have intellectual property laws on their statutes, and another for
governments to enforce them aggressively. This distinction has led to provisions in
bilateral agreements, as well as proposals for World Intellectual Property Organization and
European Union rules on intellectual property enforcement.

The 2001 EU Copyright Directive was to implement the 1996 WIPO Copyright treaty. The
wording of Trips 27 of non-discrimination is used to justify an extension of the patent
system.

Panel reports

According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005
page 142 [7], in the first ten years, 25 complaints have been lodged leading to the panel
reports and appellate body reports on TRIPS listed below.

The WTO website has a gateway to all TRIPS disputes (including those that did not lead
to panel reports) here [8].

2005 Panel Report [9]:

European Communities - Protection of Trademarks and Geographical Indications
for Agricultural Products and Foodstuffs .

2000 Panel Report [10], Part 2 [11] and 2000 Appellate Body Report [12]:
Canada - Term of Patent Protection.

2000 Panel Report, Part 1 [13] and Part 2 [14]:

United States - Section 110(5) of the US Copyright Act.

2000 Panel Report [15]:

Canada - Patent Protection of Pharmaceutical Products.

2001 Panel Report [16] and 2002 Appellate Body Report [17]:
United States - Section 211 Omnibus Appropriations Act of 1998.

1998 Panel Report [18]:

India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.
 1998 Panel Report [19]:
Indonesia - Certain Measures Affecting the Automobile Industry.

Retrieved from "http://en.wikipedia.org/wiki/Agreement_on_Trade-

Related_Aspects_of_Intellectual_Property_Rights"
The simple way to explain intellectual property is to understand that all great expressions
and products have an origin. A work of music, art, writing, film, or computer software
belongs to its creators. Your creative expressions and inventions have a lot of value and
must be protected however; your ideas are not considered intellectual property. Anyone
who tries to copy or "borrow" your work without permission is profiting from your hard
work – your intellectual property – without any credit to you.

Intellectual property is divided into two groupings: Industrial property (patents,

trademarks, industrial designs, and geographic indications of source) and Copyright
(literary and artistic works) / Rights related to copyright (performing artists, producers,
and broadcasters).

Intellectual property rights also have a large impact on international trade. Those
belonging to big brand pharmaceutical companies have stalled countries from providing
generic antiretroviral drugs to treat people with HIV/AIDS, due to long negotiations
between the pharmaceutical companies and the generic manufacturers.

Due to the emergence of information and communication technologies, namely the

Internet, defining the boundaries of intellectual property has become more challenging.
Technology has advanced to a state where previous copyright codes and laws no longer fit.
Some people find that copyright, as in “all rights reserved” is restrictive for our digital age
of file sharing and blog publishing. A Creative Commons license allows for more
flexibility for the creator, author or artist to attribute parameters on sharing their work.

Many people differ on the definition of piracy when it comes to files for download on the
Internet. While some see it as an obvious infringement of copyright law, others believe
ownership is more complex. The process of making files available to other users over the
Internet for downloading purposes is called peer-to-peer (P2P) file sharing.

Students and writers must take care when substantiating their own writing with
information and references from other texts. While the Web provides easy access to
articles, essays and other texts, every time a phrase, thought or paragraph is borrowed, it is
imperative to credit the original author by properly citing sources. Failure to do so or
intentional plagiarism may result in severe penalties such as suspension or expulsion from
school to major legal fines and penalties.

What is a trade mark?

A trademark is a unique identifier of recognisable elements of your business. A trade mark
helps to uniquely link certain names, ideas and designs to your business and prevents
others from misusing them. For instance, the name of your company, the brand name of
your product and their logos could be your trade marks.
Besides other things, the mark should be capable of graphical DARE/facts
representation on paper. You can start using the symbol TM
even before you apply for a trade mark, as it is used to
indicate that the said mark is aimed at being registered as Applicable fees
trade mark. The symbol ® is applicable to a registered trade New applications – Rs
mark. 2,500
Why should I register? Renewal of a registered
Registration of a trade mark is not mandatory. However, there trade mark – Rs 5,000
are several legal benefits of getting a trade mark registered.
Let us say you have not registered your marks, and some Restoration of a removed
other person starts using them. In this case, you can only mark – Rs 5,000
appeal for a “passing off” suit, which means that you would Official search request –
need to prove that they are passing off goods or services under Rs 500
your business name or brand. Among other things, you need
Preliminary advise on
to prove that your business name or brand has been in
registrability – Rs 500
existence well before the other one sarted.
If you have a registered trade mark, you simply need to show the registration certificate,
for infringement action against the offender, including stopping other businesses from
using your trade mark or some mark deceptively similar. You can sue for damages, and
also secure destruction of the conflicting goods and/or its labels. A registered trade mark is
a symbol of authenticity of identity of your company, brand, goods or services. Therefore
it is recommended that you register your trade marks.
What is the process?
You have to file an application with the Trade Mark Registrar. They screen your
application, and if accepted, such acceptance is publicly advertised. After this, there is a
waiting period of three months for opposition. In case there is no opposition, a registered
trade mark certificate is issued. If your application faces opposition, a hearing is held to
decide the matter. If the opposition is allowed, you can apply for a review.
Objection(s) could be raised by the Registrar during screening. In this case, you would
have to go through a show cause hearing, to prove your case. Your application can also be
refused after screening. Here, your option is to appeal to the Intellectual Property
Appellate Board. A trade mark registration could take anywhere between 12 to 24 months.
Where do I register?
You apply at the relevant trade mark registry in Delhi, Kolkata, Chennai, Ahmedabad and
Mumbai. The registry you apply to depends on the location of your business.
How to get it done?
After examination of your application, typically a number of objections are raised by the
Registrar. Handling these requires a lot of legal paper work. Hence, it is highly
recommended that you use the services of a competent trade mark lawyer.
Any tips to get it right?
Even before you start a business, brand, or any new commercial activity, you should run a
check for all relevant marks, at the national or regional trade mark Registrar’s office.
Alternatively, you can apply for an official search request at the office. You can also do a
market search to ensure that there is no existing business using a mark similar to the one
that you intend to use.
Use distinctive terms (say, green telephony), instead of descriptive ones(say, green
cellphones). Register the words as well as the logos (graphics). Preferably, keep your
company name separate from the brand name or service. In case of any dispute over a
particular line of business, the trade mark will not affect the corporate entity’s branding.
Do I have to renew?
A trade mark is registered for ten years (from the date of the application), during which
you can renew it. You do receive a notification about the expiry date. If you fail to renew,
a grace period of six months is allowed (with late payment charges). After the grace
period, the Registrar may remove the mark from the register. The “may” means that it is
the discretion of the Registrar. Nevertheless, in case of removal, the registrant can still
apply for restoration within one year of the expiry of the last registration. This restoration
is the discretion of the Registrar, who may renew it with or without conditions and/or
limitations.

Coupled with this attempt to yoke Indian agricultural research to the US private
bandwagon, is the attempt to sell a model of a completely corporatised agriculture.
Manmohan Singh and Montek Ahluwalia have been talking about the need to bring in
private capital in a big way in Indian agriculture as the only solution to the agrarian crisis
in the country. We will not go in the details of this vision, but will only note that
corporatising agriculture will do little to help the bulk of the rural population. With its
focus on commercial crops, bulk procurement and retail chains, such corporatisation can
only weaken the small farmer even more. Already in Punjab, corporate interests such as
Monsanto, Reliance and others are making a beeline for agri-retail trade. With gradual
withdrawal of the Government from procurement, more and more of retail trade for
agriculture is going pass into these hands. The presence of Wal Mart on the US side also
makes clear the interest that the US has in opening India’s internal and external trade in
agriculture to US companies.

The first Green Revolution grew from an international public research system that began
in the 1940s and built up a chain of research centres worldwide. These centres
collaborated through the Consultative Group on International Agricultural Research
(CGIAR), a consortium of donors including foundations, national governments, United
Nations institutions, etc. These centres operated in a world without Intellectual Property
Rights and distributed seeds and new varieties all over the world. The striking
improvements of yields in a number of crops, particularly wheat, rice and maize came out
of this open institutional structure of science and research.

The key difference today from the green revolution days is that agricultural research has
now been largely privatised in the US. Even the university system in the US today
operates with the patents being licensed to private parties. This is a fundamental shift in
science that has taken place. Earlier, all advance stemming from publicly funded research
was supposed to be in the public domain. However, in the US, it changed with the Bayh
Dole Act of 1984 that allowed knowledge created by public funding to be patented. This
has been followed in most countries with public institutions joining the private sector in
the rush for patents. The problem here is that such patents held by public institutions are
not used for public good but in turn are licensed to private companies. The university or
the public institution may get a large revenue as a result, but the public does not get any
benefit to this public funding of such research.
Therefore, even the institutions that helped in the first green revolution are pursuing a
different agenda today. They are so closely tied up with agribusiness in the US that instead
providing help to our agricultural research, they are more likely to be allied with US big
agribusiness.

The other major shift that has taken place in agriculture is that before the 80’s, the only
protection available for plants were plant breeder’s rights. However, since then the US has
followed an aggressive policy of patenting micro-organisms, life forms, seeds, genes and
even gene sequences. This is the route that other countries are also following, particularly
after the WTO/TRIPS agreement of 1994. TRIPS forces IPR protection for micro-
organisms and allows countries to introduce life form patenting. A recent survey published
in Nature, found that about three-quarters of plant DNA patents today are in the hands of
private firms, with nearly half held by 14 multinational companies; virtually no such
patents existed before 1985.

Let us take the current biotechnology advances in creating new varieties of plants. The
major thrust of creating new varieties is to introduce new traits by transferring genetic
material from other species. This is why such varieties are called transgenic (more
commonly genetically modified organisms or GMOs). The two main processes for
transferring genetic material across species is to use a soil bacteria, Agrobacterium
tumefaciens as a vector for transferring genetic material or to use the gene gun.
Agrobacterium is a soil bacteria that introduces some of its own genetic material in the
infected plant causing tumours or gall in the plant. Agricultural scientists have modified
the bacteria and can use it as a carrier for other genes to incorporate novel traits of other
species. The gene gun sprays the genetic material and thus can be used to insert genes
from one species to another.

Both the above procedures are covered by a variety of patents. Cornell University holds
the patents on the gene gun which in turn it has licensed it to Du Pont. Monsanto and a
few companies hold the patents on the use of Agrobacterium and thus make it difficult for
any transgenic variety to be developed without infringing their patents. Although much of
the basic research that led to Agrobacterium-mediated transformation was done in public
institutions, the private sector now holds many of the key patent positions, either through
internal research and development, or from public institutions in the form of licenses.

A simple case of trying to use genetically modified organisms for public good is that of
the much-touted golden rice, which incorporated beta-carotene as a source of Vitamin A. It
is subject to at least 40 patents and only after a major international effort could its use in
public domain be permitted. The current patent landscape effectively seals the potential of
using it for the small and medium farmers in developing countries. They simply cannot
pay the cost of intellectual property that is being claimed by the agribusiness companies
such as Monsanto.
China has taken a different route in ensuring that their agriculture does not succumb to the
seed MNCs such as Monsanto. They have bought some crucial patents from smaller
companies in Japan and other countries and have developed their own GM products. Bt
Cotton and Bt rice in China are from their public sector scientific institutions and
operating on the same principles that green revolution did.

One of the major challenge that genetically modified plants face is that no country can
afford to give up its independence and surrender its agriculture to Monsantos of the world.
Unfortunately, if the scientists across the globe are banding together to develop public
domain science, the Indian science establishment, under the Mashelkar-Montek Singh
aegis is tying up to the apron strings of global private capital.

People's Democracy Vol. XX

(Weekly Organ of the Communist Party of India (Marxist) No. 09
Februa

Indo-US Agriculture Initiative: Handing Indian Agriculture to Monsantos

Prabir Purkayastha
Intellectual Property Rights in Agriculture
The Advent of WTO
The recognition of agriculture as a rule-bound enterprise of investment and profit
making became obvious with its inclusion in the intergovernmental negotiations for the
General Agreement on Tariffs and Trade (GATT) for the first time in the Uruguay Round
(1986-1994). This round led to the establishment of the World Trade Organization (WTO)
in January 1995. Now, the WTO has at least half a dozen intergovernmental agreements
that directly affect agriculture. These are, Agreements on Agriculture (AoA), Applications
of
Sanitary and Phytosanitary Measures (SPS), Technical Barriers to Trade (TBT), Anti-
Dumping, Subsidies and Countervailing Measures, Safeguards, and Trade Related
Aspects of Intellectual Property Rights (TRIPs).
An understanding of the implications and the application of these agreements,
particularly the TRIPs, has become more important than ever before at every stage of
planning, research, upscaling and commercialisation of agricultural technologies. The
TRIPs Agreement is covered in an elaborate document—comprising 73 articles in 7 parts,
namely, (i) General provisions and basic principles, (ii) Standards concerning availability,
scope, and use of IPRs (iii) Enforcement of IPRs, (iv) Acquisition and maintenance of
IPRs
and related inter partes procedures, (v) Dispute prevention and settlement, (vi) Transitional
arrangements, and (vii) Institutional arrangements.
There are seven forms of intellectual property rights recognised in the TRIPs
Agreement. These include, Copyright and related rights, Trademarks, Geographical
Indications, Industrial Designs, Patents, Layout-Designs (topographies) of integrated
circuits, and protection of undisclosed information. This agreement also covers provisions
related to control of anti-competitive practices in contractual licences, although, it does not
directly relate to IPR. In days to come, when application of various forms of IPR in
different
areas of agriculture is put to practice, we may face serious problems unless timely
remedial measures are taken, awareness is brought out and also due emphasis is given on
IPR literacy, higher education and capacity building in the country.
Following establishment of the international institutional mechanisms, such as, the
Convention on Biological Diversity (CBD) and the WTO, and further, signing of
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the
growing importance and the global scope of IPR in agriculture are well realised and
recognised. The IPR, after long debate, is recognised as an asset and means of rewarding
and harvesting the fruit of agricultural research and development. Recognition of
intellectual property rights provides an effective means of protecting and rewarding
innovators. This acts as a catalyst in technological and economic development. The
essence of regulation of IPR by law is to balance private and public interests. At the same
time, equitable benefit sharing is, although, agreed upon under the CBD, is yet to be
realised in effective terms.
Global and National Scope of IPR
Broadly, protection of all forms of IPR may be relevant in agriculture but its application
has to be limited to the relevant domestic Acts in vogue. Hybrids in plants and animals
may be protected de facto by not disclosing the parents, whereas protection for plant
varieties may be
availed by a sui generis system. The provision for Plant Variety Protection (PVP) made
under
the TRIPs Article 27.3(b), allows countries to provide such protection either through
patent, or
an effective sui generis PVP system or any combination of the two. Patents, in India, are
so far
available to new processes but not to all products per se. In agriculture, patents may be
obtained for processes related to agrochemicals, growth promoters and regulators,
vaccines,
drugs, hides and wool, dairy technology, food technology, fuel and biogas production,
bioreactors, standardisation of various laboratory protocols, environment management,
etc.
Copyrights and related rights, on the other hand, may be registered for databases,
bioinformatics, genes and gene sequences, amino acid sequences, antibodies, etc.
Application
of industrial designs and the topographies of integrated circuits would be relevant,
particularly in
agricultural engineering. Nevertheless, in the days to come, IPR is likely to dominate the
agricultural scenario irrespective of whether the technology in question is conventional or
modern—biotechnology or information technology.
Countries are required to enact/amend their domestic laws in accordance with the
TRIPs Agreement and the between-country disputes have to be resolved at the WTO
platform, according to its dispute settlement procedures. In this context, it is important to
have in place well enacted laws corresponding to the different forms of IPR that not only
keep in view the basic needs of the country but are also capable of tackling complexities,
which might arise at the international level.
In India, the Patents Act, 1970, constituted the basic Principal Act on the subject.
This Act hardly included innovations in agriculture under the patentable subject matter. In
particular, it excluded methods of agriculture and horticulture as well as all innovations in
the areas of treatment and protection of plants and animals from pestilence or those aimed
at increasing their productivity and value of their produce. This broad exclusion had
historical impact and implications in respect of IPR protection in agriculture in the
country.
India is bound by all the provisions of TRIPs Agreement, which oblige the country to
enact/amend relevant domestic laws. Further, with such shifts in legal provisions and also
national policies, increased private participation in agricultural R&D and far more
publicprivate
relationships, including both competition and cooperation in relevant areas, are
imminent. Several legislative and institutional adjustments are being made in the country
to
gear up and face the challenges of globalisation. These include enactment of new
legislations on Protection of Plant Varieties and Farmers’ Rights Act, 2001 and
Geographical
Indications of Goods (Registration and Protection) Act, 1999, and amendment of Patents
Act,
1970 in 1999 and 2002. The Biological Diversity Bill, 2000 is in the process of enactment
and
revision of the Seeds Act, 1966, is also receiving attention. The need to provide for
protection
in the areas specific to farm animal sector is also being realised.
Effective implementation of IPR related legislations in place and those in the offing is
expected to have significant impact on the course of agricultural R&D in the country.
Therefore, it is considered important to identify and develop various national policy
options
for addressing the emerging areas of IPR in agriculture, including the access to various
protected technologies to the Indian farmers, entrepreneurs and users. It is high time that a
critical analysis of the system is undertaken for its strengths, weaknesses, opportunities
and threats (SWOT), to convert threats into opportunities and mitigate weaknesses through
timely action.
Creating an Enabling Environment
Recognising the inherently complex nature of institutional development, prime
consideration should be given to genuine requirement of resources and building an
enabling
environment to capitalise on the strengths. Opportunity for IPR protection in agriculture
and
allied sectors should be improved alongwith mechanisms for enforcement, access to
resources
and technology, benefit sharing, equity and justice in order to give durable effect to the
national
agricultural policy and the inherent basic principles of our constitution. A long lasting
national
commitment should be made in respect of effective institutional mechanisms and reforms,
including the administrative, regulatory, legislative and judicial reforms at all levels of
government functioning. Short and medium term fiscal plans must include elements of
these
reforms by providing resources to help meet the costs of adjustment. Resources should be
tied
to commitments by successive central and state governments with much needed incentive
to
innovators commensurate with the invention.
It is important to understand that developed economies are likely to benefit greatly
from an organised IPR system due to their inherent capabilities to capitalise on such
opportunities. Realisation of the gains, principles of equity and the need for a level-playing
field is a real challenge. Nevertheless, in keeping with the spirit of the intergovernmental
agreements, application of IPR and also maintenance of equity and social justice must be
effectively addressed at the national level.
Enhanced competitiveness together with increased production should be the target
for various agricultural commodities having export prospects. These include high value
commercial crops, animal breeds, spices, medicinal and aromatic plants, and products like
milk, meat, fish, leather and wool. Reduction in the cost of production at small farms
should
also be aimed at so that Indian exports become more competitive. Market-driven quality
consciousness should be applied to lay far greater R&D emphasis and efforts to produce
quality products that may fetch increased monetary returns per unit area, input and time.
NAAS Round Table on IPR
The National Academy of Agricultural Sciences (NAAS), recognising the importance
of the above aspects, organised a one-day Round Table (under the Convenership of Dr.
Mangala Rai), to deliberate on various aspects of IPR in agriculture, in order to develop a
national policy framework and a road map to achieve the goals. About 40 eminent
scientists, administrators, practicing attorneys, lawyers and others concerned with the
agricultural sector participated and shared their views on the existing and emerging
scenario in the area of IPR.
The technical sessions covered three broad contemporary issues relating to IPR in
agriculture, namely, (i) Protectable subject matter in agriculture, (ii) Technical
opportunities
in agriculture, and (iii) Enabling environment for accelerated R&D and global
competitiveness in Indian agriculture.
IPR: Protectable subject matter in agriculture: Patentable subject matter in
agriculture and alternative forms of IPR were considered. It also covered what is not
patentable and where protection can or cannot be granted under copyrights, designs,
geographical indications of goods, trademarks, undisclosed information (trade secrets),

plant variety protection, etc. The coverage also included some case studies and a few
comparisons with prevailing scenario in other countries.
IPR: Technical opportunities in agriculture: IPR implications were observed on plant
varieties, farmers’ rights, biodiversity and environment. It also covered the
biotechnological
opportunities from IPR protection. In addition, coverage was made in respect of
technology
transfer, biosafety, institutional capacity building, human resource development and
related
matters.
IPR: Enabling environment for accelerated R&D and global competitiveness in Indian
agriculture: A broad range of issues and concerns related to the enabling environment
were discussed and deliberated upon for steering India through the existing and emerging
scenario on IPR. This included commercialisation, competitiveness, safeguards,
information management, indigenous and traditional knowledge (ITK), and orientation of
research and development for technology development, transfer, trade, monitoring and
management in the national and international context. The recommendations that emerged
as a result of these deliberations are given below.
Recommendations
1. Harmonisation of IPR System
_ Recognising that the capital intensive frontier areas of technology generation require
high investment and at times long gestation periods, and that IP protection is one of
the important means of resource generation aimed at further enhancing the R&D, a
high priority should be given to generation, evaluation, protection and effective
commercial utilisation of tangible products of intellectual property in agriculture.
_ A dynamic and rational approach should be followed for IPR protection and portfolio
management. Protection should be availed for the intellectual property involved in
inventing new technologies using one or more than one form of protection in
conjunction. Choice of any form of protection should be based on its relevance,
enforcement mechanism, scope, and jurisprudence. Use of trademarks for brand
development of Indian agricultural products should be encouraged as safety net in
agribusiness. Remedies like ‘passing off ’ should be availed of in jurisdictions where
Common Law Jurisprudence is effective.
_ Realising the emergence and importance of several new tools for growth in farm
sector—biotechnology, hybrid technology, biocontrol agents, biofertilisers, vaccines,
diagnostics, improved implements and machinery—and also that IPR regime is
bound to affect development and use of these tools, future technological options in
agriculture should be fully harnessed from the knowledge, the art and the strength to
realise the IPR opportunities. Core competence should be developed through
appropriate means, mechanisms and systems to harness the best of the intellectual
property generated.
_ Recognising the need to capitalise on our national resources and capabilities to
attain and sustain IPR advantages locally, regionally and globally with timely and
effective action, the area of IPR in agriculture should be addressed in conjunction

with traditional rights and indigenous knowledge. Access to genetic resources in the
new regime is likely to be facilitated but it will certainly be regulated. Rights to
equitable sharing of benefits must be suitably balanced with the rights to IPR
protection wherever applicable.
_ Acknowledging that the issues of IP protection by third parties based on our
indigenous traditional knowledge (ITK) are sensitive and important, a high priority
and liberal financial allocation should be made to the projects that may lead to
development and strengthening of traditional knowledge and resource databases in
order to discourage such protection by third parties.
_ Appreciating that in accordance with the intergovernmental commitment by developing
countries to grant product patents in all fields of technology earliest by 1 January
2005, high priority must be accorded to the development of competitive products,
particularly in agrochemicals and biotechnology, in Indian agriculture, besides, further
making suitable amendments in the Patents (Amendment) Act, 2002.
_ Recognising the available strengths for animal genetic resources and generation of
competitive technology in farm animals, poultry and fish in the country, and also
realising that appropriate IP protection laws in this area are lacking, steps should be
initiated on the analogy of Protection of Plant Varieties and Farmers’ Rights Act,
2001 so that in future animal and fish breeds/strains and also farmers’ rights on
these genetic resources are protected by law.
2. Awareness Generation and Literacy in IPR
_ Realising that awareness generation is important for confidence building in order to
accept and apply IPR in agriculture and to naturalise the IPR culture, an intensive
campaign should be launched to this effect, at all levels and for all relevant sections
of the society. Increased general awareness should be brought out in public to
enable them to respond to various opportunities, challenges and threats. Elaborate
awareness tools—compact discs (CDs), documentary films, newspaper features and
advertisements should be developed and widely disseminated in all languages
through mass media.
_ Issues and concerns, scope of application of IP protection in one form or the other,
or in conjunction, various exceptions and exemptions, procedures and rules in the
Indian and global contexts in easy to understand, simple language and comparisons
with other countries on case-to-case basis must be analysed and presented for
public appraisals. Recognising the absence or paucity of case laws, simple
illustrations should be made for FAQs like what, where, why, how, have and havenots.
Potential benefits should be explained and, at least, hypothetical examples
made in relation to facilitated access to genetic resources and benefit sharing,
judicious application of legislative, regulatory and administrative provisions related to
IPR laws, and monetary rewards or sharing of licence fee and royalty for saleable
intellectual property generated by the employees in the course of R&D.
_ In order to help increase the IPR literacy in agriculture and allied sectors, compendia
on IPR protection and technology transfer should be published for wide distribution.

Such compendia should cover rules, procedures, forms, guidelines, other important
tips and selected case studies on various provisions, admissibility and application,
infringement and remedies for various forms of IPR protection in accordance with
different domestic laws and also in comparison with other country laws.
_ Recognising that the IPR management in agriculture requires a broad portfolio
management that includes the fundamental need to link IPR protection with
licensing, technology transfer, upscaling, commercialisation and safeguards, all
concerned institutions/organisations should generate, publish and widely
disseminate relevant information and common literature on IPR in agriculture in the
form of brochures and technical bulletins, etc.
3. IPR Education, Training and Human Resource Development
_ Emphasising on the need to educate children—potential inventors and innovators of
future years, it is time to think of developing suitable curriculum right from the,
school level. Based on short stories, poems, letters, essays and short plays, these
curricula should be developed in simple language and in interactive and illustrative
modes. Concerned government departments and agencies should invite
contributions to this effect and announce suitable and impressive awards for the
selected entries. ICAR may take lead and recommend the awarded entries for
inclusion in the syllabi of the Central Board of Secondary Education and the Boards
of Education in various states.
_ In order to enhance the level of higher education in the country for IPR in general
and IPR in relation to agriculture in particular, there must be at least one compulsory
course at the undergraduate and postgraduate levels in all agricultural universities
and deemed universities, and also in the law colleges all over the country. Further,
an LL.M. degree programme should be started in ‘IPR laws in relation to Agriculture’
at various law colleges in the country.
_ Summer and winter schools and periodic training programmes should be conducted in
the country for teachers, scientists and technical staff in order to enhance national
competence to appropriately address the area of IPR in agriculture and allied sectors.
Appropriate modules should also be developed for foundation level training and
advanced orientation of concerned scientists at selected institutions on regional basis
and at other related Centres of Advanced Studies at the ICAR institutes and the SAUs.
_ Human resources in the ICAR institutes and the SAUs should be developed and
strengthened in order to help efficient application of IPR in agriculture and allied
sectors. Focused attention should be given in the national agricultural research
system for the in-country on-job training for skill upliftment and also need-based
exposure of Indian scientists to the relevant scenario in other countries. Adequate
funding should be provided at the central and state levels to ascertain the muchneeded
promotion of HRD.
4. Strengthening the Institutional Mechanism—Legal, Regulatory and Administrative
_ Recognising that it is important to establish an IP regime that would provide
confidence in and workability for the protection of IPR in relation to agriculture and
allied sectors in the country, high priority should be accorded to the process of
completing the required legislative provisions and also the notification, functioning
and strengthening of national institutional mechanisms corresponding to various
Acts, such as the respective Controllers, National Authorities, Tribunals, Registries,
etc. Further recognising that the IPR Acts mainly relate to techno-legal matters, their
governance should be controlled by eminent scientists with wide experience in
relevant fields and the Tribunals should also have technical members. The National
Authority on Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR
Act, 2001), should have an eminent plant breeder as its chairperson.
_ Enforcement of new Acts and Amendments related to IPR in agriculture should be
speeded up. This requires finalisation of Rules and Procedures for the PPV&FR Act,
2001 and the Geographical Indications (Registration and Protection) Act, 1999 (GI
Act, 1999). Government should take note of the recommendations made by the
NMS on the implementation of PPV&FR, 2001 and also the draft Rules and
Regulations developed as a result of the FAO-MSSRF Consultation. The final draft
rules and procedures for the GI Act, 1999, should be circulated for expert opinion on
areas concerning agriculture and the allied sectors. Enforcement of Patents
(Amendment) Act, 2002, should be done early to protect inter alia the wealth of
agriculturally important microorganisms in the country. The designated repository
should be equipped well and strengthened as per international standards. Similarly,
enforcement of Amendment Acts related to Copyrights and Trademarks should be
accorded a high priority to help derive the best benefits.
_ Recognising that the protection of undisclosed information is the only form of IPR
listed in the TRIPs Agreement for which there is no corresponding direct law in the
country, and further reiterating such intergovernmental commitment, legal
consultation process should be initiated to firm up the contextual position and decide
the course of action. Development of related laws, such as, enactment of Biological
Diversity Bill, 2000, should also receive attention. Appropriate legal instruments
related to conservation, maintenance, trade and sustainable utilisation of animal
genetic resources should be brought about.
_ Simplified regulatory procedures for relevant application of IP protection and also for
seeking any prior informed consent (PIC) on mutually agreed terms (MAT) for
access to genetic resources and equitable sharing of benefits should be developed.
_ It is recommended that parallel laws like the Seeds Act should be strengthened as
they help in better application and enforcement of particular IP laws, such as the
PPV&FR Act, 2001, in order to support effective implementation of sui generis
system of protection. Similarly, Contract Law should be reviewed to strengthen the
law on Trade Secret, and the law related to land ownership of small farmholders
should also be strengthened to judiciously implement the farmers’ rights.
_ Recognising that the institutional development and strengthening is inherently
complex in nature and also that it requires time, resources and will to develop
institutional culture, short and medium term fiscal plans should include provision for
resources that would help in meeting the costs of adjustment. Commitments by

successive central and state governments should ensure availability of

precommitted resources in the techno-legal area.
_ Management and Information Services should be strengthened in the ICAR
institutions and SAUs in order to change their basic approach to research and IPR
protection. Facilities should be established and strengthened for identification of
relevant research areas through patent search, literature survey, UPOV database
search etc. Early and conflict-resolving information services should be set up in the
broader context.
_ Inventors and innovators should be provided with their share commensurate with the
worth of a commercialised invention whereas incentive should be given to all
inventions whether processes or products in order to ensure a viable, dynamic and
effective national institutional mechanism of IP management.
_ Elaborate Clearing House Mechanism (CHM) should be developed and strengthened
in relation to IPR in agriculture, encompassing all possible information on basics,
thematic areas, related treaties, conventions and agreements, historical to current
events and future activities. It should also have copies of all Indian Acts related to
various forms of IPR, their rules and procedures, forms, guidelines and other important
tips. A site on the Internet should be dedicated to this CHM and various notifications,
case studies, with periodic updation of other relevant information.
5. Strengthening the Policy Area
_ Recognising that the principal policy area related to protection of IPR in agriculture
and allied sectors is the competitive commercialisation of technologies, attention
should be given to further liberalisation of agricultural markets, promotion of private
sector investment and more efficient technology systems.
_ Codes and procedures for rewarding the concerned partners and stakeholder
scientists should be developed in the ICAR, the SAUs and other concerned
institutions to bring IP culture in the NARS. This may be commensurate with the
gains accrued. Alternatively, a fixed proportion, at least 40 per cent of the earnings,
should be given to the scientist concerned or shared among the research partners
as is presently being followed in the Council of Scientific and Industrial Research
(CSIR) institutes.
_ Recognising that high priority should be given to strengthening of support services in
farm enterprises, extension, training, research and quality control, public
interventions in agriculture should focus on market intelligence, technology
forecasting and early warning systems. A centre for forecasting market trends and
the status of the national and international markets should be established to
enhance the prospects and sustainability of competitive Indian agriculture. Marketled
technologies should be developed, protected and commercialised to harness
greater returns on the investments made.
_ There is a strategic need to increase growth-enhancing public investment, besides
capital formation in agriculture, and promoting private sector activities and resource
contributions. Essential ingredients must be put in place to bring much needed
commerce in Indian agriculture.
_ Whereas agriculture is deregulated as a result of the ongoing reform process, the
lowest income groups should be continuously protected in accordance with clearly
defined policy and directives by direct and indirect support programmes.
_ Recognising that in the absence of proper legal framework, misuse, abuse,
overexploitation and non-judicious utilisation of animal genetic resources is rampant,
particular attention should be given at the national and global levels. There should
be intergovernmental negotiations to address issues like the trusteeship/ownership
of animal genetic resources in various genebanks and the legal frameworks for the
databanks, including acquisition of the classified data on animal genetic resources.
_ In order to avail of maximum IPR-linked opportunities in competitive agriculture,
India must continue to contribute towards development of a level-playing field at the
intergovernmental platform between the developing and the developed economies.
In the ongoing negotiations at the World Intellectual Property Organization (WIPO)
for IPR in relation to genetic resources, traditional knowledge and folklore, NARS
experts can play a vital role which needs to be capitalised by the government.
6. Harnessing IP-linked Technical Opportunities in Agriculture
_ Trademarks should be extensively used for brand development in agriculture. Genes
and gene sequences, amino acid sequences, antibodies, etc., should be protected
by copyrights until there is opportunity to patent and commercialise these products.
Judicious application of other forms of protection should be done as and where
applicable. Protection of IPR in all cases should be essentially linked to
commercialisation, sharing of royalty and other benefits, and further enhancement of
relevant R&D.
_ Appreciating that the agricultural research community should create/innovate, protect,
and commercialise their new technologies on continuous and incremental basis, other
important national responsibilities, like sustainable development, empowerment of
economically weak farmers, and protection of their traditional resources and
knowledge should also be prompted on high priority. Quick action should be taken to
record and document farmers’ varieties in the country as available over space and
time and the traditional knowledge associated with their use.
_ IP linked technical opportunities in agriculture may be extended to applied
management of genetic resources including microorganisms. Biotechnological
advances should be integrated with genetic resource management where feasible to
identify, copyright and document unique genes or gene sequences. Recognising
that the germ plasm registration of PGR is in practice, specifications and guidelines
should also be developed for breed registration of farm livestock.
_ At least five per cent of the research budget in agriculture should be allocated to
protect the public sector R&D for sustainable IPR portfolio management, and
technology development and mobilisation in agriculture. Where certain technologies
are considered important for food security and well being but significant avenues do
not exist for IPR protection and commercialisation, development and deployment of
public goods must continue to be done by the public sector R&D.
_ As the IP protection is likely to be far more stringent in the years to come,
agricultural markets should be constantly monitored and suitably reorganised at an
appropriate time. Timely, corrective steps should be taken based on critical gaps,
including the kind of IP scenario likely to emerge in future.
_ Competitive funding schemes should be encouraged to develop research links
between profit-making and non-profitmaking research institutions and to build
bridges between the use of propriety and public domain resources and technology.
7. Linkages and Cooperation
_ Mutually supported testing of technologies should be encouraged by a change in
attitude and mindset in publicpublic, public-private or private-private partnerships to
address high proportionate initial costs and risks, particularly that of the
biotechnological R&D. Active partnerships should be further encouraged in exploring
the new tools of applied genomics to understand and improve the biological systems
in public interest.
_ In order to provide encouragement for the public-private partnerships in true spirit,
minimal codes of procedures should be developed and applied in different key areas
of partnership. On selective basis, corporate culture should be brought about in
some public sector institutions.
_ Confidence building should be accelerated in cross-sectoral partnerships. Feeling of
uncertainty in partnership calls from across the public and private sectors should be
minimised. More opportunities should be provided for frequent interaction among the
agricultural scientists, research institutions, agricultural industrial sector and
entrepreneurs. The private sector should also complement the basic and strategic
research by the public sector through appropriate funding and resource sharing.
_ Voluntary or concessional legal advice may be provided in partnership deals of
strategic importance to enhance competitiveness of Indian agriculture and to attend
to the problems of uneven-playing field among the resource-rich and resource-poor
potential partners. A common platform should be provided on sustainable basis to
seek assistance from the attorneys and lawyers having reasonable agricultural R&D
background. Besides, outsourcing for legal advice on case-to-case basis in order to
competently address the techno-legal area of IPR protection in agriculture, the ICAR
and SAU set ups should appoint law officers in their IPR Cells in order to strengthen
their institutional mechanism for IP protection.
_ Realising the importance of jurisdictional limits in respect of the application of IPR
laws and the situations concerning enforcement and discipline, control of
agribusiness abroad should be addressed by all concerned in a national spirit.
Agencies like APEDA, FICCI and CII should earmark resources and funds to meet
the contingent needs for relevant transnational IPR cases involving the Indian
agricultural sector and to provide emergent support on case-to-case basis.
 Trademark
A trademark or trade mark[1] or mark is a distinctive sign or indicator of some kind
which is used by an individual, business organization or other legal entity to uniquely
identify the source of its products and/or services to consumers, and to distinguish its
products or services from those of other entities. A trademark is a type of intellectual
property, and typically comprises a name, word, phrase, logo, symbol, design, image, or a
combination of these elements. There is also a range of non-conventional trademarks
comprising marks which do not fall into these standard categories.

The owner of a registered trademark may commence legal proceedings for trademark
infringement to prevent unauthorized use of that trademark. However, registration is not
required. The owner of a common law trademark may also file suit, but an unregistered
mark may be protectable only within the geographical area within which it has been used
or in geographical areas into which it may be reasonably expected to expand.

The term trademark is also used informally to refer to any distinguishing attribute by
which an individual is readily identified, such as the well known characteristics of
celebrities. When a trademark is used in relation to services rather than products, it may
sometimes be called a service mark, particularly in the United States.

Fundamental concepts

The essential function of a trademark is to exclusively identify the commercial source or

origin of products or services, such that a trademark, properly called, indicates source or
serves as a badge of origin. The use of a trademark in this way is known as trademark use.
Certain exclusive rights attach to a registered mark, which can be enforced by way of an
action for trademark infringement, while unregistered trademark rights may be enforced
pursuant to the common law tort of passing off.

It should be noted that trademark rights generally arise out of the use and/or registration
(see below) of a mark in connection only with a specific type or range of products or
services. Although it may sometimes be possible to take legal action to prevent the use of a
mark in relation to products or services outside this range (eg. for passing off), this does
not mean that trademark law prevents the use of that mark by the general public. A
common word, phrase, or other sign can only be removed from the public domain to the
extent that a trademark owner is able to maintain exclusive rights over that sign in relation
to certain products or services, assuming there are no other trademark objections. For a
case study in both concepts, see Apple Corps and its disputes with Apple, Inc.

Terminology and symbols

Terms such as "mark", "brand" and "logo" are sometimes used interchangeably with
"trademark". However, the terms "brands" and "branding" raise distinct conceptual issues
and are generally more appropriate for use in a marketing or advertising context.

Specialized types of trademark include certification marks, collective trademarks and

defensive trademarks. A trademark which is popularly used to describe a product or
service (rather than to distinguish the product or services from those of third parties) is
sometimes known as a genericized trademark. If such a mark becomes synonymous with
that product or service to the extent that the trademark owner can no longer enforce its
proprietary rights, the mark becomes generic.

As any sign which is capable of performing the essential trademark function may qualify
as a trademark, the trademark concept extends to include a range of non-conventional
signs such as shapes (three-dimensional trademarks), sounds, smells, moving images (e.g.,
signs denoting movement, motion or animation), taste, and perhaps even texture. Although
the extent to which non-conventional trademarks can be protected or even recognised
varies considerably from jurisdiction to jurisdiction,[2] shape marks and sound marks are
examples of non-conventional marks which are in the process of migrating out of this
category.

The ™ symbol may be used when trademark rights are claimed in relation to a mark, but
the mark has not been registered with the government trademarks office of a particular
country or jurisdiction, while the ® is used to indicate that the mark has been so registered.
It is not mandatory to use either symbol, although the force of convention is such that the
symbols are widely used around the world. However, in various jurisdictions it is unlawful
to use the ® symbol in association with a mark when that mark is not registered. Either
symbol is typically placed in the top left- or right-hand corner of a mark.

Users of computers running the Microsoft Windows operating system can enter the ™ and
® characters into text by holding down the Alt key and typing 0153 and 0174 respectively
into the numeric keypad. (See Windows Alt keycodes. For other operating systems, see Alt
codes). Those running MacOS can hold down the Option key and type 2 for ™ and r for
®.

Establishing trademark rights

The law considers a trademark to be a form of property. Proprietary rights in relation to a

trademark may be established through actual use in the marketplace, or through
registration of the mark with the trademarks office (or "trademarks registry") of a
particular jurisdiction, e.g., the U.S. Patent and Trademark Office. In many jurisdictions,
trademark rights can be established through either or both means. Certain jurisdictions
generally do not recognize trademarks rights arising through use (e.g. China or European
Union). If trademark owners do not hold registrations for their marks in such jurisdictions,
the extent to which they will be able to enforce their rights through trademark
infringement proceedings will therefore be limited. In cases of dispute, this disparity of
rights is often referred to as "first to file" as opposed to "first to use". Other countries such
as Germany offer a limited amount of common law rights for unregistered marks where to
gain protection, the goods or services must occupy a highly significant position in the
marketplace - where this could be 40% or more market share for sales in the particular
class of goods or services.

A registered trademark confers a bundle of exclusive rights upon the registered owner,
including the right to exclusive use of the mark in relation to the products or services for
which it is registered. The law in most jurisdictions also allows the owner of a registered
trademark to prevent unauthorized use of the mark in relation to products or services
which are identical or "colourfully" similar to the "registered" products or services, and in
certain cases, prevent use in relation to entirely dissimilar products or services. The test is
always whether a consumer of the goods or services will be confused as to the identity of
the source or origin. An example maybe a very large multinational brand such as "Sony"
where a non-electronic product such as a pair of sunglasses might be assumed to have
come from Sony Corporation of Japan despite not being a class of goods that Sony has
rights in.

Once trademark rights are established in a particular jurisdiction, these rights are generally
only enforceable in that jurisdiction, a quality which is sometimes known as territoriality.
However, there is a range of international trademark laws and systems which facilitate the
protection of trademarks in more than one jurisdiction (see International trademark laws
below).

Trademark search
To avoid conflicts with earlier trademark rights, it is highly recommended to conduct
trademark searches before the trademarks office (or "trademarks registry") of a particular
jurisdiction - e.g. US Patent and Trademark Office. It may also be advisable to conduct a
broader search as well, including databases that contain names of registered companies
and also an Internet search to determine if the desired trademark is either already
registered as a domain name or otherwise being used. The reason for this is because
trademark offices typically only search issued trademarks and pending applications in
order to determine whether a trademark should issue. [3] For business reasons, however, an
applicant may want to consider a different trademark even if it could be registered if the
domain name is taken or other businesses are using the trademark as an unregistered name
or slogan.

In the United States, obtaining a trademark search and relying upon the results is also very
important because it can insulate the applicant from any future finding that you willfully
infringed the trademark of another. Essentially, if you obtain a search and in good faith
feel the use of a mark would not be infringing it will be virtually impossible for anyone to
prove later that you purposefully engaged in infringing activities.[4]

In Europe and if a community trademark has to be filed, searches have to be conducted

with the OHIM (Community Trademark Office) and with the various national offices. An
alternative solution is to conduct a trademark search within private databases.

Registrability and distinctive character

A trademark may be eligible for registration, or registrable, if amongst other things it

performs the essential trademark function, and has distinctive character. Registrability
can be understood as a continuum, with "inherently distinctive" marks at one end,
"generic" and "descriptive" marks with no distinctive character at the other end, and
"suggestive" and "arbitrary" marks lying between these two points. This part of
registration is known as Section 3 of the trademark act in the UK as opposed to Section 5
which is concerned with prior rights of others. A mark must satisfy both sections to
become registered.

 A fanciful / inherently distinctive trademark is prima facie registrable, and

comprises an entirely invented or "fanciful" sign. For example, "Kodak"
had no meaning before it was adopted and used as a trademark in relation
to goods, whether photographic goods or otherwise. Invented marks are
neologisms which will not previously have been found in any dictionary.
  An arbitrary trademark is usually a common word which is used in a
meaningless context (e.g. "Apple" for computers). Such marks consist of
words or images which have some dictionary meaning before being
adopted as trademarks, but which are used in connection with products or
services unrelated to that dictionary meaning. For example, Salty would be
an arbitrary mark if it used in connection with telephones, e.g. Salty
Telephones, as the term "salt" has no particular connection with such
products.
 A suggestive trademark tends to indicate the nature, quality, or a
characteristic of the products or services in relation to which it is used, but
does not describe this characteristic, and requires imagination on the part of
the consumer to identify the characteristic. Suggestive marks invoke the
consumer’s perceptive imagination. An example of a suggestive mark is
Blu-ray, a new technology of high-capacity data storage.
 A descriptive mark is a term with a dictionary meaning which is used in
connection with products or services directly related to that meaning. An
example might be Salty used in connection with saltine crackers or
anchovies. Such terms are not registrable unless it can be shown that
distinctive character has been established in the term through extensive use
in the marketplace (see further below). Lektronic was famously refused
protection by the USPTO on ground of being descriptive for electronic
goods.
 A generic term is the common name for the products or services in
connection with which it is used, such as "salt" when used in connection
with sodium chloride. A generic term is not capable of serving the essential
trademark function of distinguishing the products or services of a business
from the products or services of other businesses, and therefore cannot be
afforded any legal protection. This is because there has to be some term
which may generally be used by anyone—including other manufacturers—
to refer to a product without using some organization's proprietary
trademark. Marks which become generic after losing distinctive character
are known as genericized trademarks.

It can be seen from the examples above that the distinctive character of a term is closely
related to the products or services in relation to which the term is used.

A general method for assessing the distinctive character of a mark is to consider a

consumer's reaction to a mark. The mark may only be inherently registrable if the
consumer has never encountered the mark before. On the other hand, the mark is unlikely
to be inherently registrable if it informs him about any characteristic of the relevant
products or services (e.g. whether they are delicious, large, spicy, black or sweet, in the
case of fruit). In any other case the mark may not be registrable.

Another example of a descriptive mark would be a geographical word or phrase that

merely indicates the origin of the product or service. For example, Houston based ice
cream might find that the name "Houston ice cream" is denied trademark protection on the
grounds that the word Houston is merely descriptive. However, they might have better
luck with the name "North Pole ice cream". In the latter case, although North Pole is a
geographical location, the ice cream is not actually made at the North Pole, and no
reasonable person would assume that the phrase North Pole is literally descriptive.[5]
Therefore marks that identify or describe a product or service, or that are in common use,
or that are used as geographical indications, generally cannot be registered as trademarks,
and remain in the public domain for use by anyone. For example, a generic term such as
"apple", or descriptive terms such as "red" or "juicy" could not be registered in relation to
apples.

Primary consideration in the selection and use of trademarks should be given to marks
which are inherently distinctive, as they possess the strongest distinctive character and do
not require evidence of use to establish acquired distinctiveness. A fanciful, arbitrary, or
suggestive term can be inherently distinctive and registrable without proof of acquired
distinctiveness. Although these categories are most easily applied in relation to trademarks
comprising words, the same general principles are applied in relation to all kinds of
trademarks. For example, a pine tree shape is descriptive when used on pine-scented
products.

Acquired distinctiveness

A trademark with no distinctive character (ie. a mark which is not inherently distinctive) is
prima facie unregistrable. However, most jurisdictions may still allow such marks to be
registered if the trademark owner can demonstrate, typically by reference to evidence of
use, that consumers in the marketplace exclusively associate the mark, as used on the
identified goods or in connection with the identified services, with a particular commercial
origin or source (ie. the trademark owner). "Use" may include authorized use by a licensee
or other party. If the trade marks office is satisfied that the evidence demonstrates that a
mark has "acquired" distinctive character as a matter of fact, then the mark may be
accepted for registration on the basis of acquired distinctiveness.

The nature and extent of acceptable evidence of use varies between jurisdictions, although
the most useful evidence usually includes sales figures, details of advertising and
promotional expenditure, and examples of promotional material. Consumer surveys may
also help establish that consumers chiefly associate an otherwise non-distinctive mark with
the trademark owner and its products or services. Generally, evidence of use may only be
acceptable or relevant if it covers a certain period of time (e.g. three years prior to the
filing date of the trademark application) and originates from within the jurisdiction where
registration is sought.

The terminology of acquired distinctiveness is accepted in the European Union and

Commonwealth jurisdictions such as Australia, Hong Kong and the United Kingdom, and
the common law jurisdiction of the United States (which also uses the term secondary
meaning). In the U.S., if a trademark has been used for a continuous period of at least five
years after the date of registration, the right to use the mark and the registration may
become "incontestable" (eg. invulnerable to cancellation for non-use, but not for becoming
generic). In such cases the USPTO checks and confirm whether the request for
incontestability meets formality requirements, but whether a registration is incontestable at
law can only be determined during legal proceedings involving the registration.

Fundamental concepts The essential function of a trademark is to exclusively identify the

commercial source or origin of products or services, such that a trademark, properly
called, indicates source or serves as a badge of origin. The use of a trademark in this way
is known as trademark use. Certain exclusive rights attach to a registered mark, which can
be enforced by way of an action for trademark infringement, while unregistered trademark
rights may be enforced pursuant to the common law tort of passing off.

It should be noted that trademark rights generally arise out of the use and/or registration
(see below) of a mark in connection only with a specific type or range of products or
services. Although it may sometimes be possible to take legal action to prevent the use of a
mark in relation to products or services outside this range (eg. for passing off), this does
not mean that trademark law prevents the use of that mark by the general public. A
common word, phrase, or other sign can only be removed from the public domain to the
extent that a trademark owner is able to maintain exclusive rights over that sign in relation
to certain products or services, assuming there are no other trademark objections. For a
case study in both concepts, see Apple Corps and its disputes with Apple, Inc natty
concept (2008)

Maintaining trademark rights

Trademarks rights must be maintained through actual lawful use of the trademark. These
rights will cease if a mark is not actively used for a period of time, normally 5 years in
most jurisdictions. In the case of a trademark registration, failure to actively use the mark
in the lawful course of trade, or to enforce the registration in the event of infringement,
may also expose the registration itself to become liable for an application for the removal
from the register after a certain period of time on the grounds of "non-use". It is not
necessary for a trademark owner to take enforcement action against all infringement if it
can be shown that the owner perceived the infringement to be minor and inconsequential.
This is designed to prevent owners from continually being tied up in litigation for fear of
cancellation. An owner can at any time commence action for infringement against a third
party as long as it had not previously notified the third party of its discontent following
third party use and then failed to take action within a reasonable period of time (called
acquiescence). The owner can always reserve the right to take legal action until a court
decides that the third party had gained notoriety which the owner 'must' have been aware
of. It will be for the third party to prove their use of the mark is substantial as it is the onus
of a company using a mark to check they are not infringing previously registered rights. In
the US, owing to the overwhelming number of unregistered rights, trademark applicants
are advised to perform searches not just of the trademark register but of local business
directories and relevant trade press. Specialized search companies perform such tasks prior
to application.

All jurisdictions with a mature trademark registration system provide a mechanism for
removal in the event of such non use, which is usually a period of either three or five
years. The intention to use a trademark can be proven by a wide range of acts as shown in
the Wooly Bull and Ashton v Harlee cases.

In the U.S., failure to use a trademark for this period of time, aside from the corresponding
impact on product quality, will result in abandonment of the mark, whereby any party may
use the mark. An abandoned mark is not irrevocably in the public domain, but may instead
be re-registered by any party which has re-established exclusive and active use, and must
be associated or linked with the original mark owner. Further, if a court rules that a
trademark has become "generic" through common use (such that the mark no longer
performs the essential trademark function and the average consumer no longer considers
that exclusive rights attach to it), the corresponding registration may also be ruled invalid.
For example, the Bayer company's trademark "Aspirin" has been ruled generic in the
United States, so other companies may use that name for acetylsalicylic acid as well
(although it is still a trademark in Canada). Xerox for photocopiers and Band-Aid for
adhesive bandages are both trademarks which are at risk of succumbing to genericide in
certain countries, which the respective trademark owners actively seek to prevent. In order
to prevent marks becoming generic, trademark owners often contact those who appear to
be using the trademark incorrectly, from web page authors to dictionary editors, and
request that they cease the improper usage. The proper use of a trademark means using the
mark as an adjective, not as a noun or a verb,[6][7][8][9] though for certain trademarks, use as
nouns and, less commonly, verbs is common. For example, Adobe sent e-mails to many
web authors using the term "photoshopped" telling them that they should only use the term
"modified by Adobe® Photoshop® software." Xerox has also purchased print
advertisements declaring that "you cannot 'xerox' a document, but you can copy it on a
Xerox Brand copying machine." Another popular example is the use of the word
"frappuccino" by Starbucks customers to mean any blended coffee beverage, though
employees are instructed to only say "frappuccino blended coffee" or "frappuccino
blended cream" when referring to such drinks. This rule is not hard-and-fast, however; for
example, Lexis-Nexis has a U.S. trademark registration for "Shepardize," Reg. No.
1743711, and defines "Shepardizing on a web page as "the process of looking up citations"
in "a series of books called Shepard's Citations." Such efforts may or may not be
successful in preventing genericism in the long run, which depends less on the mark
owner's efforts and more on how the public actually perceives and uses the mark. In fact,
legally it is more important that the trademark holder visibly and actively seems to attempt
to prevent its trademark from becoming generic, regardless of real success.

Enforcing trademark rights

The extent to which a trademark owner may prevent unauthorized use of trademarks
which are the same as or similar to its trademark depends on various factors such as
whether its trademark is registered, the similarity of the trademarks involved, the
similarity of the products and/or services involved, and whether the owner’s trademark is
well known.

If a trademark has not been registered, some jurisdictions (especially Common Law
countries) offer protection for the business reputation or goodwill which attaches to
unregistered trademarks through the tort of passing off. Passing off may provide a remedy
in a scenario where a business has been trading under an unregistered trademark for many
years, and a rival business starts using the same or a similar mark.

If a trademark has been registered, then it is much easier for the trademark owner to
demonstrate its trademark rights and to enforce these rights through an infringement
action. Unauthorized use of a registered trademark need not be intentional in order for
infringement to occur, although damages in an infringement lawsuit will generally be
greater if there was an intention to deceive.

For trademarks which are considered to be well known, infringing use may occur where
the use occurs in relation to products or services which are not the same as or similar to
the products or services in relation to which the owner's mark is registered.
Limits and defenses to trademark

Trademark is subject to various defenses and limitations. In the United States, the fair use
defense protects uses that would be otherwise protected by the First Amendment.

Wrongful or groundless threats of infringement

Various jurisdictions have laws which are designed to prevent trademark owners from
making wrongful threats of trademark infringement action against other parties. These
laws are intended to prevent large or powerful companies from intimidating or harassing
smaller companies.

Where one party makes a threat to sue another for trademark infringement, but does not
have a genuine basis or intention to carry out that threat, or does not carry out the threat at
all within a certain period, the threat may itself become a basis for legal action. In this
situation, the party receiving such a threat may seek from the Court, a declaratory
judgment; also known as a declaratory ruling.

Other aspects
Public policy

Trademark law is designed to fulfill the public policy objective of consumer protection, by
preventing the public from being misled as to the origin or quality of a product or service.
By identifying the commercial source of products and services, trademarks facilitate
identification of products and services which meet the expectations of consumers as to
quality and other characteristics.

Trademarks may also serve as an incentive for manufacturers, providers or suppliers to

consistently provide quality products or services in order to maintain their business
reputation. Furthermore, if a trademark owner does not maintain quality control and
adequate supervision in relation to the manufacture and provision of products or services
supplied by a licensee, such “naked licensing” will eventually adversely impact on the
owner’s rights in the trademark.

By the same token, trademark holders must be cautious in the sale of their mark for similar
reasons as apply to licensing. When assigning an interest in a trademark, if the associated
product or service is not transferred with it, then this may be an "assignment-in-gross" and
could lead to a loss of rights in the trademark. It is still possible to make significant
changes to the underlying goods or services during a sale without jeopardizing the
trademark, but companies will often contract with the sellers to help transition the mark
and goods and/or services to the new owners to ensure continuity of the trademark.

Comparison with patents, designs and copyright

While trademark law seeks to protect indications of the commercial source of products or
services, patent law generally seeks to protect new and useful inventions, and registered
designs law generally seeks to protect the look or appearance of a manufactured article.
Trademarks, patents and designs collectively form a subset of intellectual property known
as industrial property because they are often created and used in an industrial or
commercial context.
By comparison, copyright law generally seeks to protect original literary, artistic and other
creative works. A trademark also does not expire (if it is re-registered), whereas
international copyright law (which varies from country to country) usually lasts the
duration of the author's lifespan plus 50 years. This can lead to confusion in cases where a
work passes into the public domain but the character in question remains a registered
trademark.[10]

Although intellectual property laws such as these are theoretically distinct, more than one
type may afford protection to the same article. For example, the particular design of a
bottle may qualify for copyright protection as a non-utilitarian [sculpture], or for
trademark protection based on its shape, or the 'trade dress' appearance of the bottle as a
whole may be protectable. Titles and character names from books or movies may also be
protectable as trademarks while the works from which they are drawn may qualify for
copyright protection as a whole.

Drawing these distinctions is necessary but often challenging for the courts and lawyers,
especially in jurisdictions where patents and copyrights when they pass into the public
domain depending on the jurisdiction. Unlike patents and copyrights, which in theory are
granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses
and defends them and maintains their registrations with the applicable jurisdiction's
trademarks office. This often involves payment of a periodic renewal fee.

As a trademark must be used in order to maintain rights in relation to that mark, a

trademark can be 'abandoned' or its registration can be canceled or revoked if the mark is
not continuously used. By comparison, patents and copyrights cannot be 'abandoned' and a
patent holder or copyright owner can generally enforce their rights without taking any
particular action to maintain the patent or copyright. Additionally, patent holders and
copyright owners may not necessarily need to actively police their rights. However, a
failure to bring a timely infringement suit or action against a known infringer may give the
defendant a defense of implied consent or estoppel when suit is finally brought.

Dilution

A trademark is diluted when the use of similar or identical trademarks in other non-
competing markets means that the trademark in and of itself will lose its capacity to
signify a single source. In other words, unlike ordinary trademark law, dilution protection
extends to trademark uses that do not confuse consumers regarding who has made a
product. Instead, dilution protection law aims to protect sufficiently strong trademarks
from losing their singular association in the public mind with a particular product, perhaps
imagined if the trademark were to be encountered independently of any product (e.g., just
the word Pepsi spoken, or on a billboard). Under trademark law, dilution occurs either
when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes
it." Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).

Sale, transfer and licensing of trademarks

In various jurisdictions a trademark may be sold with or without the underlying goodwill
which subsists in the business associated with the mark. However, this is not the case in
the United States, where the courts have held that this would "be a fraud upon the public".
In the U.S., trademark registration can therefore only be sold and assigned if accompanied
by the sale of an underlying asset. Examples of assets whose sale would ordinarily support
the assignment of a mark include the sale of the machinery used to produce the goods that
bear the mark, or the sale of the corporation (or subsidiary) that produces the trademarked
goods.

Most jurisdictions provide for the use of trademarks to be licensed to third parties. The
licensor (usually the trademark owner) must monitor the quality of the goods being
produced by the licensee to avoid the risk of trademark being deemed abandoned by the
courts. A trademark license should therefore include appropriate provisions dealing with
quality control, whereby the licensee provides warranties as to quality and the licensor has
rights to inspection and monitoring.

Trademarks and domain names

The advent of the domain name system has led to attempts by trademark holders to
enforce their rights over domain names that are similar or identical to their existing
trademarks, particularly by seeking control over the domain names at issue. As with
dilution protection, enforcing trademark rights over domain name owners involves
protecting a trademark outside the obvious context of its consumer market, because
domain names are global and not limited by goods or service.

This conflict was more easily resolved when the domain name user actually used his
website to compete with the trademark owner. Cybersquatting, however, involves no such
competition, but instead an unlicensed user registering the trademark as a domain name in
order to pressure a payoff (or other benefit) from the lawful mark owner. Typosquatters—
those registering common misspellings of trademarks as domain names—have also been
targeted successfully in trademark infringement suits. Other types of domain name
disputes include the so-called "gripe site," which use a registered trademark in a domain
such as "[trademark]sucks.com." There are also disputes arising from the subdomain,
when a third party uses a protected mark in a web address such as "[trademark].
[legitimatedomain].com." [1]

This clash of the new technology with preexisting trademark rights resulted in several high
profile decisions as the courts of many countries tried to coherently address the issue (and
not always successfully) within the framework of existing trademark law. As the website
itself was not the product being purchased, there was no actual consumer confusion, and
so initial interest confusion was a concept applied instead. Infringing domain names were
analogized to a sign identifying one store but falsely placed in front of another, in the
hopes that customers will in the end not care that they were duped or will at least give up
on trying to reach the right store. In addition, courts have upheld the rights of trademark
owners with regard to commercial use of domain names, even in cases where goods sold
there legitimately bear the mark. In the landmark decision Creative Gifts, Inc. v. UFO, 235
F.3d 540 (10th Cir. 2000)(New Mexico), Defendants had registered the domain name
"Levitron.com" to sell goods bearing the trademark "Levitron" under an at-will license
from the trademark owner. The 10th Circuit affirmed the rights of the trademark owner
with regard to said domain name, despite arguments of promissory estoppel.

Most courts particularly frowned on cybersquatting, and found that it was itself a
sufficiently commercial use (i.e., "trafficking" in trademarks) to reach into the area of
trademark infringement. Most jurisdictions have since amended their trademark laws to
address domain names specifically, and to provide explicit remedies against
cybersquatters.
This international legal change has also led to the creation of ICANN Uniform Domain-
Name Dispute-Resolution Policy (UDRP) and other dispute policies for specific countries
(such as Nominet UK's DRS) which attempt to streamline the process of resolving who
should own a domain name (without dealing with other infringement issues such as
damages). This is particularly desirable to trademark owners when the domain name
registrant may be in another country or even anonymous.

Registrants of domain names also sometimes wish to register the domain names
themselves (e.g., "XYZ.COM") as trademarks for perceived advantages, such as an extra
bulwark against their domain being hijacked, and to avail themselves of such remedies as
confusion or passing off against other domain holders with confusingly similar or
intentionally misspelled domain names.

As with other trademarks, the domain name will not be subject to registration unless the
proposed mark is actually used to identify the registrant's goods or services to the public,
rather than simply being the location on the Internet where the applicant's web site
appears. Amazon.com is a prime example of a protected trademark for a domain name
central to the public's identification of the company and its products.

Terms which are not protectable by themselves, such as a generic term or a merely
descriptive term that has not acquired secondary meaning, do not become registrable when
a Top-Level Domain Name (e.g. dot-COM) is appended to it. Examples of such domain
names ineligible for trademark protection would be "SOFT.COM" (merely descriptive
when applied to a product such as facial tissue), or "BANK.COM" (generic for banking
services).

International trademark laws

It is important to note that although there are systems which facilitate the filing,
registration or enforcement of trademark rights in more than one jurisdiction on a regional
or global basis (e.g. the Madrid and CTM systems, see further below), it is currently not
possible to file and obtain a single trademark registration which will automatically apply
around the world. Like any national law, trademark laws apply only in their applicable
country or jurisdiction, a quality which is sometimes known as "territoriality".

Agreement on Trade-Related Aspects of Intellectual Property Rights

The inherent limitations of the territorial application of trademark laws have been
mitigated by various intellectual property treaties, foremost amongst which is the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights. TRIPS establishes
legal compatibility between member jurisdictions by requiring the harmonization of
applicable laws. For example, Article 15(1) of TRIPS provides a definition for "sign"
which is used as or forms part of the definition of "trademark" in the trademark legislation
of many jurisdictions around the world.

The Madrid system for the international registration of marks

The major international system for facilitating the registration of trademarks in multiple
jurisdictions is commonly known as the "Madrid system". Madrid provides a centrally
administered system for securing trademark registrations in member jurisdictions by
extending the protection of an "international registration" obtained through the World
Intellectual Property Organization. This international registration is in turn based upon an
application or registration obtained by a trade mark applicant in its home jurisdiction.

The primary advantage of the Madrid system is that it allows a trademark owner to obtain
trademark protection in many jurisdictions by filing one application in one jurisdiction
with one set of fees, and make any changes (e.g. changes of name or address) and renew
registration across all applicable jurisdictions through a single administrative process.
Furthermore, the "coverage" of the international registration may be extended to additional
member jurisdictions at any time.

Trademark Law Treaty

The Trademark Law Treaty establishes a system pursuant to which member jurisdictions
agree to standardize procedural aspects of the trademark registration process.

Community Trade Mark system

The Community Trade Mark system is the supranational trademark system which applies
in the European Union, whereby registration of a trademark with the Office for
Harmonization in the Internal Market (Trade Marks and Designs) (i.e. OHIM, the
trademarks office of the European Union), leads to a registration which is effective
throughout the EU as a whole. The CTM system is therefore said to be unitary in
character, in that a CTM registration applies indivisibly across all European Union
member states. However, the CTM system did not replace the national trademark
registration systems; the CTM system and the national systems continue to operate in
parallel to each other (see also European Union trade mark law).

Non-standard trademarks
 Certification marks
 Chartered marks
 Collective trademarks
 Defensive trademarks
 Electronic registration marks
 Geographical indication
 Protected designation of origin

Non-conventional / non-traditional trademarks

 Colour trademarks
 Hologram trademarks
 Shape trademarks
 Smell trademarks
 Sound trademarks
 List of fictional brands

Other
 Genericized trademarks
 Ghost marks
 Glossary of legal terms in technology
 Madrid system
 Proper adjective
  Trademark attorney

Related concepts
 Brand
 Emblem
 Logo

Trademark organizations
 INTA The International Trademark Association
 WIPO World Intellectual Property Organisation
 OHIM Office of the European Union

Retrieved from "http://en.wikipedia.org/wiki/Trademark"

Trade name
A trade name, also known as a trading name or a business name, is the name which a
business trades under for commercial purposes, although its registered, legal name, used
for contracts and other formal situations, may be another. Pharmaceuticals also have trade
names (e.g. "Aspirin"), often dissimilar to their chemical names ("acetylsalicylic acid").

Trading names are sometimes registered as trademarks or are regarded as brands.

Trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation
of information used by a business to obtain an advantage over competitors or customers.
In some jurisdictions, such secrets are referred to as "confidential information".

Definition

A company can protect its confidential information through non-compete non-disclosure

contracts with its employees (within the constraints of employment law, including only
restraint that is reasonable in geographic and time scope). The law of protection of
confidential information effectively allows a perpetual monopoly in secret information - it
does not expire as would a patent. The lack of formal protection, however, means that a
third party is not prevented from independently duplicating and using the secret
information once it is discovered.

The sanctioned protection of such type of information from public disclosure is viewed as
an important legal aspect by which a society protects its overall economic vitality. A
company typically invests time and energy (work) into generating information regarding
refinements of process and operation. If competitors had access to the same knowledge,
the first company's ability to survive or maintain its market dominance would be impaired.
Where trade secrets are recognized, the creator of knowledge regarded as a "trade secret"
is entitled to regard such "special knowledge" as intellectual property.

The precise language by which a trade secret is defined varies by jurisdiction (as do the
particular types of information that are subject to trade secret protection). However, there
are three factors that (though subject to differing interpretations) are common to all such
definitions: a trade secret is some sort of information that:

 is not generally known to the relevant portion of the public;

 confers some sort of economic benefit on its holder (where this benefit
must derive specifically from its not being generally known, not just from
the value of the information itself);
 is the subject of reasonable efforts to maintain its secrecy.

Trade secrets are not protected by law in the same manner as trademarks or patents.
Specifically, both trademarks and patents are protected under Federal statutes, the Lanham
Act and Patent Act, respectively. Trade secrets arise out of state laws. Most states have
adopted the Uniform Trade Secrets Act (USTA). Only Massachusetts, New York, New
Jersey, North Carolina, and Texas have not adopted the USTA. One of the most significant
differences between patents and trademarks and trade secrets is that a trade secret is only
protected when the secret is not disclosed.

Comparison with trademarks

To acquire rights in a trademark under U.S. law, one must simply use the mark "in
commerce."[1] It is possible to register a trademark in the U.S., both at the federal and state
levels. (Registration of trademarks confers some advantages, including stronger protection
in certain respects, but it is not required in order to get protection. [2] Registration may be
required in order to file a lawsuit for trademark infringement, however. Other nations have
different trademark policies and this information may not apply to them.) Assuming the
mark in question meets certain other standards of protectibility, it is protected from
infringement on the grounds that other uses might confuse consumers as to the origin or
nature of the goods once the mark has been associated with a particular supplier. (Similar
considerations apply to service marks and trade dress.) By definition, a trademark enjoys
no protection (qua trademark) until and unless it is "disclosed" to consumers, for only then
are consumers able to associate it with a supplier or source in the requisite manner. (That a
company plans to use a certain trademark might itself be protectible as a trade secret,
however, until the mark is actually made public.)

Comparison with patents

To acquire a patent, full information about the method or product has to be supplied to the
patent bureau and upon publication or issuance, will then be available to all. After
expiration of the patent, competitors can copy the method or product legally. The
temporary monopoly on the subject matter of the patent is regarded as a quid pro quo for
thus disclosing the information to the public.

Protecting trade secrets

Trade secrets are by definition not disclosed to the world at large. Instead, owners of trade
secrets seek to keep their special knowledge out of the hands of competitors through a
variety of civil and commercial means, not the least of which is the employment of non-
disclosure agreements (NDA) and non-compete clauses. In exchange for the opportunity
to be employed by the holder of secrets, a worker will sign an agreement not to reveal his
prospective employer's proprietary information. Often, he will also sign over rights to the
ownership of his own intellectual production during the course (or as a condition) of his
employment. Violation of the agreement generally carries stiff financial penalties, agreed
to in writing by the worker and designed to operate as a disincentive to going back on his
word. Similar agreements are often signed by representatives of other companies with
whom the trade secret holder is engaged, e.g. in licensing talks or other business
negotiations.

Trade secret protection can, in principle, extend indefinitely and in this may offer an
advantage over patent protection, which lasts only for a specifically limited period of time,
for example, twenty years in the U.S. Coca-Cola, the most famous trade secret example,
has no patent for its formula and has been very effective in protecting it for many more
years than a patent would have. In fact, Coca-Cola refused to reveal its trade secret under
at least two judges' orders.[3] However, the "down side" of such protection is that it is
comparatively easy to lose (for example, to reverse engineering, which a patent will
withstand but a trade secret will not) and comes equipped with no minimum guaranteed
period of years.

Historically, trade secrets have existed since early times in the form of keeping advanced
military technology from one's enemies, and in more recent times, in keeping Industrial
Revolution-era technology secret.

Discovering trade secrets

Companies often try to discover one another's trade secrets through lawful methods of
reverse engineering on one hand and less lawful methods of industrial espionage on the
other. Acts of industrial espionage are generally illegal in their own right under the
relevant governing laws. The importance of that illegality to trade secret law is as follows:
if a trade secret is acquired by improper means (a somewhat wider concept than "illegal
means" but inclusive of such means), the secret is generally deemed to have been
misappropriated. Thus if a trade secret has been acquired via industrial espionage, its
acquirer will probably be subject to legal liability for acquiring it improperly. (The holder
of the trade secret is nevertheless obliged to protect against such espionage to some degree
in order to safeguard the secret. As noted above, under most trade secret regimes, a trade
secret is not deemed to exist unless its purported holder takes reasonable steps to maintain
its secrecy.)

Legal development to protecting trade secrets

A relatively recent development in the USA is the adoption of the UTSA, the Uniform
Trade Secrets Act, which has been adopted by approximately 45 states as the basis for
trade secret law. It is believed that a measure of uniformity among different states' laws
will strengthen business' claims on their trade secrets.

Another significant development in U.S. law is the Economic Espionage Act of 1996 (18
U.S.C. § 1831–1839), which makes the theft or misappropriation of a trade secret a federal
crime. This law contains two provisions criminalizing two sorts of activity. The first, 18
U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers; the
second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes.
(The statutory penalties are different for the two offenses.)

In Commonwealth common law jurisdictions, confidentiality and trade secrets are

regarded as an equitable right rather than a property right (with the exception of Hong
Kong where a judgment of the High Court indicates that confidential information may be a
property right). The Court of Appeal of England and Wales in the case of Saltman
Engineering Co Ltd v. Campbell Engineering Ltd, (1948) 65 P.R.C. 203 held that the
action for breach of confidence is based on a principle of preserving "good faith".

The test for a cause of action for breach of confidence in the common law world is set out
in the case of Coco v. A.N. Clark (Engineers) Ltd, (1969) R.P.C. 41 at 47:

 the information itself must have the necessary quality of confidence about
it;
 that information must have been imparted in circumstances imparting an
obligation of confidence;
 there must be an unauthorized use of that information to the detriment of
the party communicating it.

The "quality of confidence" highlights that trade secrets are a legal concept. With
sufficient effort or through illegal acts (such as break and enter), competitors can usually
obtain trade secrets. However, so long as the owner of the trade secret can prove that
reasonable efforts have been made to keep the information confidential, the information
remains a trade secret and generally remains legally protected. Conversely, trade secret
owners who cannot evidence reasonable efforts at protecting confidential information, risk
losing the trade secret, even if the information is obtained by competitors illegally. It is for
this reason that trade secret owners shred documents and do not simply recycle them. [citation
needed]
A successful plaintiff is entitled to various forms of judicial relief, including:

 an injunction
 an account of profits or an award of damages
 a declaration
 Utility model
A utility model is an intellectual property right to protect inventions. This right is
available in a number of national legislations, such as Argentina, Austria, Brazil, Chile,
China, Finland, France, Germany, Italy, Japan, Malaysia, Mexico, Morocco, Philippines,
Poland, Portugal, Russia, South Korea, Spain, Taiwan, Uzbekistan, etc. [1] It is very similar
to the patent, but usually has a shorter term (often 6 or 10 years) and less stringent
patentability requirements.

The German and Austrian utility model is called the "Gebrauchsmuster", which
influenced some other countries such as in Japan. Meanwhile, the utility model in
Indonesia and Finland is called as "Petty Patent"

Definition
A utility model is a statutory monopoly granted for a limited time in exchange for an
inventor providing sufficient teaching of his or her invention to permit a person of
ordinary skill in the relevant art to perform the invention. The rights conferred by utility
model laws are very similar to those granted by patent laws, but are more suited to what
may be considered as "incremental inventions". Terms such as "petty patent", "innovation
patent", "minor patent", and "small patent" may also be considered to fall within the
definition of "utility model". A "utility innovation" is available in Malaysia. [2]

Requirements for Grant

Most countries having utility model laws require that the invention be new. However,
many patent or utility model offices do not conduct substantive examination and merely
grant the utility model after checking that utility model applications comply with
formalities. Some countries exclude particular subject matter from utility model
protection. For example, methods, plant and animals are normally barred from utility
model protection.

In Germany a utility model is considered to be new if it does not form part of the state of
the art. The state of the art comprises any knowledge made available to the public by
means of a written description or by use within Germany before the date relevant for the
priority of the application. Description or use within the six months preceding the date
relevant for the priority of the application shall not be taken into consideration if it is
based on the conception of the applicant or his predecessor in title. (Utility Model Law § 3
Abs. 1)

In Spain, the novelty requirement for obtaining a utility model (Spanish: modelo de
utilidad) is "relative", i.e. only public written disclosure of the invention in Spain is
prejudicial against the novelty of the invention claimed in the utility model. This is in
sharp contrast with Spanish patents for which absolute novelty is required. What
constitutes a "disclosure of the invention in Spain" has been the subject of two recent
decisions of the Spanish Supreme Court (RJ 1996/7239 "Scott c. Sarrió y Sarrió Tisú" and
RJ 2004/2740 "PEMSA c. Interflex").

Application
Utility model applications may be prepared and filed at local patent offices in coutries
where utility model protection is available. Alternatively, an international patent
application may be filed in a country belonging to the Patent_Cooperation_Treaty. Most
countries belonging to the treaty and having utility model laws permit utility model
applications to proceed as national phase applications of the international patent
application. [3]

The table below is a list of countries having utility model protection under various names
as at 1998.[4]

Conversion
Type of Maximum PCT route
Country from Patent
Protection Term available
Application
Albania utility model 10 years Yes Yes
Angola utility model no set term No probably
Argentina utility model 10 years No Yes
Armenia utility model 10 years Yes unknown
innovation
Australia 8 years No Yes
patent
Yes by
Austria utility model 10 years Yes
division
Belarus utility model 8 years Yes unknown
Belgium short patent 6 years No No
Bolivia utility model 10 years No unknown
Brazil utility model 10 years Yes probably
Bulgaria utility model 10 years Yes probably
Chile utility model 10 years No unknown
utility model
China 10 years Yes unknown
patent
utility model probably by
Colombia 10 years No
patent division
industrial
Cuba 5 years No probably not
model patent
Czech Yes by
utility model 10 years Yes
Republic division
Yes by
Denmark utility model 10 years Yes
division
Yes by
Ecuador utility model 10 years No
division
Estonia utility model 8 years Yes Yes
Finland petty patent 10 years Yes Yes
utility
France 6 years No
certificate
Georgia utility model 8 years Yes Yes
Germany utility model 10 years Yes Yes
Greece utility model 7 years No Yes
Guatemala utility model 10 years No Yes
Hungary utility model 10 years Yes Yes
Petty
Indonesia Patent/Simple 10 years Yes Yes
Patent
short term
Ireland 10 years No Yes
patent
Italy utility model 10 years No Yes
10 - 15
Japan utility model Yes Yes
years
Kazakhstan utility model 8 years Yes Yes
Kenya utility model unknown Yes probably
Korea
utility patent 15 years Yes Yes
(south)
Kyrgyzstan utility model unknown Yes unknown
Lesotho utility model 7 years Yes Yes
utility
Malaysia 15 years No No
innovation
Moldova utility model unknown Yes probably
utility model
Mexico 5 years Yes unknown
patent
Mexico utility model 10 years Yes unknown
OAPI utility model 8 years Yes probably not
utility model
Peru 5 years No Yes
patent
Philippines utility model 15 years Yes Yes
Poland utility model 10 years Yes Yes
Portugal utility model no set term Yes unknown
Russia utility model 8 years Yes Yes
Slovakia utility model 10 years Yes Yes
short term
Slovenia 10 years Yes probably
patent
Somalia utility model 4 years No unknown
Spain utility model 10 years Yes Yes
Taiwan utility model 10-12 years No Yes
 Tajikistan utility model 9 years Yes probably
Tangier
utility model 10 years No unknown
Zone
Turkey utility model 10 years Yes Yes
utility
Uganda 7 years No Yes
certificate
Ukraine utility model 8 years Yes Yes
utility model
Uruguay 10 years No Yes
patent
United Arab
utility model 10 years No unknown
Emirates
Uzbekistan utility model 8 years Yes probably
Venezuela utility model 10 years No Yes
Vietnam utility model 6 years Yes Yes

Retrieved from "http://en.wikipedia.org/wiki/Utility_model"

Copyright

Copyright symbol

Copyright – symbolized "©" – is a legal concept enacted by most national governments,

that gives the creator of an original work exclusive rights to it, usually for a limited period
of time. At its most general, it is literally "the right to copy", but also gives the copyright
holder the right to be credited for the work, to determine who (if anyone) may adapt the
work to other forms, to determine who may perform the work, to benefit financially from
the work, and other related rights. It is one form of intellectual property (distinct from
patents, trademarks, and trade secrets), and applies to any particular expression of an idea
or information, which is substantial and self-contained in a fixed form.

Although initially conceived as a way for the government to restrict printing, the intent of
modern copyright is to promote the creation of new works by giving authors the ability to
control them and to profit from them for a limited time. These rights have become
standardized internationally, in most jurisdictions lasting 50-100 years after the death of
the creator, or a fixed number of years for anonymous or corporate creations. Although
some jurisdictions have required formalities to establish copyright, most now recognize
copyright in any completed work, without registration. Copyright is generally enforced by
the creator as a civil matter, though some jurisdictions also apply criminal sanctions.

Most jurisdictions recognize some limitations to copyright, allowing "fair" exceptions to

the creator's exclusivity and giving certain rights to consumers. The development of digital
media and networking technologies have prompted reinterpretation of these exceptions,
introduced new difficulties in enforcing copyright, and inspired additional challenges to
the philosophical basis for the law. Simultaneously, businesses with substantial economic
dependence on copyright have advocated for the extension and expansion of their rights,
and sought additional legal and technological means to enforce them.

Scope

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".
Specifics vary by jurisdiction, but these can include poems, theses, plays, other literary
works, movies, dances, musical compositions, audio recordings, paintings, drawings,
sculptures, photographs, software, radio and television broadcasts, and industrial designs.
Graphic designs and industrial designs may have separate or overlapping laws applied to
them in some jurisdictions.
Copyright does not cover ideas and information themselves, only the form or manner in
which they are expressed. For example, the copyright to a Mickey Mouse cartoon restricts
others from making copies of the cartoon or creating derivative works based on Disney's
particular anthropomorphic mouse, but doesn't prohibit the creation of other works about
anthropomorphic mice in general, so long as they're different enough to not be judged
copies of Disney's. In many jurisdictions, copyright law makes exceptions to these
restrictions when the work is copied for the purpose of commentary or other related uses
(See Fair Use, Fair Dealing). Meanwhile, other laws may impose additional restrictions
that copyright does not - such as trademarks and patents.

Copyright laws are standardized somewhat through international conventions such as the
Berne Convention and Universal Copyright Convention. These multilateral treaties have
been ratified by nearly all countries, and international organizations such as the European
Union or World Trade Organization require their member states to comply with them.

Theoretical basis

Copyright law as it is known today was originally established by legislative acts which
cited two fundamental justifications for it: 1) to benefit society by promoting the creation
of new works, and 2) to protect the moral rights of the creators of these works.

For example, the Copyright Clause of the United States Constitution (1787) authorized
copyright legislation: "To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries." That is, by guaranteeing them a period of time in which they alone could
profit from their works, they would be enabled and encouraged to invest the time required
to create them, and this would be good for society as a whole. A right to profit from the
work has been the philosophical underpinning for much legislation extending the duration
of copyright, to the life of the creator and beyond, to his heirs.

The earlier Statute of Anne (1709) further alluded to individual moral rights, beginning:
"Whereas Printers, Booksellers, and other Persons, have of late frequently taken the
Liberty of Printing... Books, and other Writings, without the Consent of the Authors... to
their very great Detriment, and too often to the Ruin of them and their Families:..." [1] A
right to benefit financially from the work is articulated, and court rulings and legislation
have recgonized a right to control the work, such as ensuring that the integrity of it is
preserved. An irrevocable right to be recognized as the work's creator appears in some
countries' copyright laws.

History

Copyright was invented after the advent of the printing press and with wider public
literacy. As a legal concept, its origins in Britain were from a reaction to printers'
monopolies at the beginning of the eighteenth century. Charles II of England was
concerned by the unregulated copying of books and used the royal prerogative to pass the
Licensing Act of 1662, which established a register of licensed books and required a copy
to be deposited with the Stationers Company, essentially continuing the licensing of
material that had long been in effect.

The Statute of Anne was the first real copyright act, and gave the publishers rights for a
fixed period, after which the copyright expired. Copyright has grown from a legal concept
regulating copying rights in the publishing of books and maps to one with a significant
effect on nearly every modern industry, covering such items as sound recordings, films,
photographs, software, and architectural works.

The 1886 Berne Convention first established recognition of copyrights among sovereign
nations, rather than merely bilaterally. Under the Berne Convention, copyrights for
creative works do not have to be asserted or declared, as they are automatically in force at
creation: an author need not "register" or "apply for" a copyright in countries adhering to
the Berne Convention. As soon as a work is "fixed", that is, written or recorded on some
physical medium, its author is automatically entitled to all copyrights in the work, and to
any derivative works unless and until the author explicitly disclaims them, or until the
copyright expires. The Berne Convention also resulted in foreign authors being treated
equivalently to domestic authors, in any country signed onto the Convention. The UK
signed the Berne Convention in 1887 but did not implement large parts of it until 100
years later with the passage of the Copyright, Designs and Patents Act of 1988. The USA
did not sign the Berne Convention until 1989.

The United States and most Latin American countries instead entered into the Buenos
Aires Convention in 1910, which required a copyright notice (such as "all rights
reserved") on the work, and permitted signatory nations to limit the duration of copyrights
to shorter and renewable terms. The Universal Copyright Convention was drafted in 1952
as another less demanding alternative to the Berne Convention, and ratified by nations
such as the Soviet Union and developing nations.

The regulations of the Berne Convention are incorporated into the World Trade
Organization's TRIPS agreement (1995), thus giving the Berne Convention effectively
near-global application. The 2002 WIPO Copyright Treaty enacted greater restrictions on
the use of technology to copy works in the nations that ratified it.

Obtaining and enforcing copyright

Typically, a work must meet minimal standards of originality in order to qualify for
copyright, and the copyright expires after a set period of time (some jurisdictions may
allow this to be extended). Different countries impose different tests, although generally
the requirements are low; in the United Kingdom there has to be some 'skill, labour and
judgment' that has gone into it. [2] In Australia and the United Kingdom it has been held
that a single word is insufficient to comprise a copyright work. However, single words or a
short string of words can sometimes be registered as a trademark instead.

Copyright law recognises the right of an author based on whether the work actually is an
original creation, rather than based on whether it is unique; two authors may own
copyright on two substantially identical works, if it is determined that the duplication was
coincidental, and neither was copied from the other.

In all countries where the Berne Convention standards apply, copyright is automatic, and
need not be obtained through official registration with any government office. Once an
idea has been reduced to tangible form, for example by securing it in a fixed medium
(such as a drawing, sheet music, photograph, a videotape, or a computer file), the
copyright holder is entitled to enforce his or her exclusive rights. However, while
registration isn't needed to exercise copyright, in jurisdictions where the laws provide for
registration, it serves as prima facie evidence of a valid copyright and enables the
copyright holder to seek statutory damages and attorney's fees. (In the USA, registering
after an infringement only enables one to receive actual damages and lost profits.)

The original holder of the copyright may be the employer of the author rather than the
author himself, if the work is a "work for hire". For example, in English law the Copyright
Designs and Patents Act 1988 provides that if a copyrighted work is made by an employee
in the course of that employment, the copyright is automatically owned by the employer
which would be a "Work for Hire."

Copyrights are generally enforced by the holder in a civil law court, but there are also
criminal infringement statutes in some jurisdictions. While central registries are kept in
some countries which aid in proving claims of ownership, registering does not necessarily
prove ownership, nor does the fact of copying (even without permission) necessarily proof
that copyright was infringed. Criminal sanctions are generally aimed at serious
counterfeiting activity, but are now becoming more commonplace as copyright collectives
such as the RIAA are increasingly targeting the file sharing home Internet user. Thus far,
however, most such cases against file sharers have been settled out of court. (See: File
sharing and the law)

Copyright notices in the U.S.

Prior to 1989, use of a copyright notice — consisting of the copyright symbol (©, the
letter C inside a circle), the abbreviation "Copr.", or the word "Copyright", followed by the
year of the first publication of the work and the name of the copyright holder — was part
of United States statutory requirements.[3][4] Several years may be noted if the work has
gone through substantial revisions. The proper copyright notice for sound recordings of
musical or other audio works is a sound recording copyright symbol (℗, the letter P inside
a circle), which indicates a sound recording copyright. Similarly, the phrase All rights
reserved was once required to assert copyright.

In 1989, the U.S. enacted the Berne Convention Implementation Act, amending the 1976
Copyright Act to conform to most of the provisions of the Berne Convention. As a result,
the use of copyright notices has become optional to claim copyright, because the Berne
Convention makes copyright automatic.[5] However, notice of copyright using these marks
may have consequences in terms of reduced damages in an infringement lawsuit.[6]

"Poor man's copyright"

A widely circulated strategy to avoid the cost of copyright registration is referred to as the
"poor man's copyright". It proposes that the creator send the work to himself in a sealed
envelope by registered mail, using the postmark to establish the date. This technique has
not been recognized by any United States court, and is dismissed as meaningless by the
United States Copyright Office. However, the UK Patent Office suggests it as one method
of proving the originality of a work as of the postmark date.[7]

Exclusive rights

Several exclusive rights typically attach to the holder of a copyright:

 to produce copies or reproductions of the work and to sell those copies

(including, typically, electronic copies)
 to import or export the work
  to create derivative works (works that adapt the original work)
 to perform or display the work publicly
 to sell or assign these rights to others
 to transmit or display by radio or video

The phrase "exclusive right" means that only the copyright holder is free to exercise those
rights, and others are prohibited from using the work without his permission. Copyright is
sometimes called a "negative right", as it serves to prohibit certain people (e.g., readers,
viewers, or listeners, and primarily publishers and would be publishers) from doing
something they would otherwise be able to do, rather than permitting people (e.g., authors)
to do something they would otherwise be unable to do. In this way it is similar to the
unregistered design right in English law and European law. The rights of the copyright
holder also permit him/her to not use or exploit their copyright, for some or all of the term.

There is, however, a critique which rejects this assertion as being based on a philosophical
interpretation of copyright law that is not universally shared. There is also debate on
whether copyright should be considered a property right or a moral right. Many argue that
copyright does not exist merely to restrict third parties from publishing ideas and
information, and that defining copyright purely as a negative right is incompatible with the
public policy objective of encouraging authors to create new works and enrich the public
domain.

The right to adapt a work means to transform the way in which the work is expressed.
Examples include developing a stage play or film script from a novel, translating a short
story, and making a new arrangement of a musical work.

Idea-expression dichotomy and the merger doctrine

Immanuel Kant in his 1785 essay Von der Unrechtmäßigkeit des Büchernachdrucks
distinguishes the physical from the ideational, the thought involved from the book. This
distinction is of critical importance to the near constant wrangling between publishers,
other intermediaries, and the original, creative authors.

Copyright usually protects the expression of an idea, not the idea itself — in US
jurisprudence this is called the idea/expression or fact/expression dichotomy. For example,
if a writer has a general concept or idea for a television program, the law of copyright does
not prohibit other writers from copying that general idea. However, if the writer develops
the idea so that it constitutes a detailed storyline or plot, then that may be protected by
copyright, notwithstanding that it is "idea" rather than "expression". Similarly, the
translation of a literary work will constitute an infringement of copyright, notwithstanding
that no element of the "expression" is directly copied.

Another example could be if a book is written describing a new way to organize books in a
library, a copyright does not prohibit a reader from freely using and describing that
concept to others; it is only the particular expression of that process as originally described
that is covered by copyright. One might be able to obtain a patent for the method, but that
is a different area of law. Compilations of facts or data may also be copyrighted, but such a
copyright is thin; it only applies to the particular selection and arrangement of the included
items, not to the particular items themselves. In some jurisdictions the contents of
databases are expressly covered by statute.
In some cases, ideas may be capable of intelligible expression in only one or a limited
number of ways. Therefore even the expression in these circumstances is not covered. In
the United States this is known as the merger doctrine, because the expression is
considered to be inextricably merged with the idea. Merger is often pleaded as an
affirmative defense to charges of infringement. That doctrine is not necessarily accepted in
other jurisdictions.

The first-sale doctrine and exhaustion of rights

Copyright law does not restrict the owner of a copy from reselling legitimately obtained
copies of copyrighted works, provided that those copies were originally produced by or
with the permission of the copyright holder. It is therefore legal, for example, to resell a
copyrighted book or CD. In the United States this is known as the first-sale doctrine, and
was established by the courts to clarify the legality of reselling books in second-hand
bookstores. Some countries may have parallel importation restrictions that allow the
copyright holder to control the aftermarket. This may mean for example that a copy of a
book that does not infringe copyright in the country where it was printed does infringe
copyright in a country into which it is imported for retailing. The first-sale doctrine is
known as exhaustion of rights in other countries and is a principle which also applies,
though somewhat differently, to patent and trademark rights. It is important to note that the
first-sale doctrine permits the transfer of the particular legitimate copy involved. It does
not permit making or distributing additional copies.

In addition, copyright, in most cases, does not prohibit one from acts such as modifying,
defacing, or destroying his or her own legitimately obtained copy of a copyrighted work,
so long as duplication is not involved. However, in countries that implement moral rights,
a copyright holder can in some cases successfully prevent the mutilation or destruction of
a work that is publicly visible.

Fair use and fair dealing

Copyright does not prohibit all copying or replication. In the United States, the fair use
doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some
copying and distribution without permission of the copyright holder or payment to same.
The statute does not clearly define fair use, but instead gives four non-exclusive factors to
consider in a fair use analysis. Those factors are:

1. the purpose and character of your use

2. the nature of the copyrighted work
3. what amount and proportion of the whole work was taken, and
4. the effect of the use upon the potential market for or value of the
copyrighted work.

In the United Kingdom and many other Commonwealth countries, a similar notion of fair
dealing was established by the courts or through legislation. The concept is sometimes not
well defined; however in Canada, private copying for personal use has been expressly
permitted by statute since 1999. In Australia, the fair dealing exceptions under the
Copyright Act 1968 (Cth) are a limited set of circumstances under which copyrighted
material can be legally copied or adapted without the copyright holder's consent. Fair
dealing uses are research and study; review and critique; news reportage and the giving of
professional advice (ie legal advice). Under current Australian law it is still a breach of
copyright to copy, reproduce or adapt copyright material for personal or private use
without permission from the copyright owner. Other technical exemptions from
infringement may also apply, such as the temporary reproduction of a work in machine
readable form for a computer.

In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992)
prohibits action against consumers making noncommercial recordings of music, in return
for royalties on both media and devices plus mandatory copy-control mechanisms on
recorders.

Section 1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of copyright based
on the manufacture, importation, or distribution of a digital audio recording
device, a digital audio recording medium, an analog recording device, or an
analog recording medium, or based on the noncommercial use by a consumer of
such a device or medium for making digital musical recordings or analog musical
recordings.

Later acts amended US Copyright law so that for certain purposes making 10 copies or
more is construed to be commercial, but there is no general rule permitting such copying.
Indeed making one complete copy of a work, or in many cases using a portion of it, for
commercial purposes will not be considered fair use. The Digital Millennium Copyright
Act prohibits the manufacture, importation, or distribution of devices whose intended use,
or only significant commercial use, is to bypass an access or copy control put in place by a
copyright owner. An appellate court has held that fair use is not a defense to engaging in
such distribution.

Transfer and licensing

A copyright, or aspects of it, may be assigned or transferred from one party to another. For
example, a musician who records an album will often sign an agreement with a record
company in which the musician agrees to transfer all copyright in the recordings in
exchange for royalties and other considerations. The creator (and original copyright
holder) benefits, or expects to, from production and marketing capabilities far beyond
those of the author. In the digital age of music, music may be copied and distributed at
minimal cost through the Internet, however the record industry attempts to provide
promotion and marketing for the artist and his or her work so it can reach a much larger
audience. A copyright holder need not transfer all rights completely, though many
publishers will insist. Some of the rights may be transferred, or else the copyright holder
may grant another party a non-exclusive license to copy and/or distribute the work in a
particular region or for a specified period of time. A transfer or licence may have to meet
particular formal requirements in order to be effective; see section 239 of the Australia
Copyright Act 1968 (Cth). Under Australian law, it is not enough to pay for a work to be
created in order to also own the copyright. The copyright itself must be expressly
transferred in writing.

Under the U.S. Copyright Act, a transfer of ownership in copyright must be memorialized
in a writing signed by the transferor. For that purpose, ownership in copyright includes
exclusive licenses of rights. Thus exclusive licenses, to be effective, must be granted in a
written instrument signed by the grantor. No special form of transfer or grant is required. A
simple document that identifies the work involved and the rights being granted is
sufficient. Non-exclusive grants (often called non-exclusive licenses) need not be in
writing under U.S. law. They can be oral or even implied by the behavior of the parties.
Transfers of copyright ownership, including exclusive licenses, may and should be
recorded in the U.S. Copyright Office. (Information on recording transfers is available on
the Office's web site.) While recording is not required to make the grant effective, it offers
important benefits, much like those obtained by recording a deed in a real estate
transaction.

Copyright may also be licensed. Some jurisdictions may provide that certain classes of
copyrighted works be made available under a prescribed statutory license (e.g. musical
works in the United States used for radio broadcast or performance). This is also called a
compulsory license, because under this scheme, anyone who wishes to copy a covered
work does not need the permission of the copyright holder, but instead merely files the
proper notice and pays a set fee established by statute (or by an agency decision under
statutory guidance) for every copy made. Failure to follow the proper procedures would
place the copier at risk of an infringement suit. Because of the difficulty of following
every individual work, copyright collectives or collecting societies and performing rights
organizations (such as ASCAP, BMI, and SESAC have been formed to collect royalties
for hundreds (thousands and more) works at once. Though this market solution bypasses
the statutory license, the availability of the statutory fee still helps dictate the price per
work collective rights organizations charge, driving it down to what avoidance of
procedural hassle would justify.

Similar legal rights

Copyright law covers the creative or artistic expression of an idea. Patent law covers
inventions. Trademark law covers distinctive signs which are used in relation to products
or services as indicators of origin, as does (in a similar fashion), Trade dress. Registered
designs law covers the look or appearance of a manufactured or functional article. Trade
secret law covers secret or sensitive knowledge or information.

Although copyright and trademark laws are theoretically distinct, more than one type of
them may cover the same item or subject matter. For example, in the case of the Mickey
Mouse cartoon, the image and name of Mickey Mouse would be the subject of trademark
legislation, while the cartoon itself would be subject to copyright. Titles and character
names from books or movies may also be trademarked while the works from which they
are drawn may qualify for copyright.

Another point of distinction is that a copyright (and a patent) is generally subject to a

statutorily-determined term, whereas a trademark registration may remain in force
indefinitely if the trademark is periodically used and renewal fees continue to be duly paid
to the relevant jurisdiction's trade marks office or registry. Once the term of a copyright
has expired, the formerly copyrighted work enters the public domain and may be freely
used or exploited by anyone. Courts in the United States and the United Kingdom have
rejected the doctrine of a common law copyright. Public domain works should not be
confused with works that are publicly available. Works posted in the internet for example,
are publicly available, but are not generally in the public domain. Copying such works
may therefore violate the author's copyright.
Useful articles

If a pictorial, graphic or sculptural work is a useful article, it is copyrighted only if its

aesthetic features are separable from its utilitarian features. A useful article is an article
having an intrinsic utilitarian function that is not merely to portray the appearance of the
article or to convey information. The must be separable from the functional aspect to be
copyrighted.

There are two primary approaches to the separability issue: physical separability and
conceptual separability. Physical separability is the ability to take the aesthetic thing away
from the functional thing. Conceptual separability can be found in several different ways.
It may be present if the useful article is also shown to be appreciated for its aesthetic
appeal or by the design approach, which is the idea that separability is only available if the
designer is able to make the aesthetic choices that are unaffected by the functional
considerations. A question may also be asked of whether an individual would think of the
aesthetic aspects of the work being separate from the functional aspects.

There are several different tests available for conceptual separability. The first, the Primary
Use test, asks how is the thing primarily used: art or function? The second, the Marketable
as Art test, asks can the article be sold as art, whether functional or not. This test does not
have much backing, as almost anything can be sold as art. The third test, Temporal
Displacement, asks could an individual conceptualize the article as art without
conceptualizing functionality at the same time. Finally, the Denicola test says that
copyrightability should ultimately depend on the extent to which the work reflects the
artistic expression inhibited by functional consideration. If something came to have a
pleasing shape because there were functional considerations, the artistic aspect was
constrained by those concerns.

Duration

Copyright subsists for a variety of lengths in different jurisdictions. The length of the term
can depend on several factors, including the type of work (e.g. musical composition,
novel), whether the work has been published or not, and whether the work was created by
an individual or a corporation. In most of the world, the default length of copyright is the
life of the author plus either 50 or 70 years. In the United States, the term for most existing
works is a fixed number of years after the date of creation or publication. Under most
countries' laws, copyrights expire at the end of the calendar year in question.

The length and requirements for copyright duration are subject to change by legislation,
and since the early 20th century there have been a number of adjustments made in various
countries, which can make determining the duration of a given copyright somewhat
difficult. For example, the United States used to require copyrights to be renewed after 28
years to stay in force, and formerly required a copyright notice upon first publication to
gain coverage. In Italy and France, there were post-wartime extensions that could increase
the term by approximately 6 years in Italy and up to about 14 in France. Many countries
have extended the length of their copyright terms (sometimes retroactively). International
treaties establish minimum terms for copyrights, but individual countries may enforce
longer terms than those.

In the United States, all books and other works published before 1923 have expired
copyrights and are in the public domain. In addition, works published before 1964 that did
not have their copyrights renewed 28 years after first publication year also are in the
public domain, except that books originally published outside the US by non-Americans
are exempt from this requirement, if they are still under copyright in their home country
(see How Can I Tell Whether a Copyright Was Renewed for more details).

But if the intended exploitation of the work includes publication (or distribution of
derivative work, such as a film based on a book protected by copyright) outside the U.S.,
the terms of copyright around the world must be considered. If the author has been dead
more than 70 years, the work is in the public domain in most, but not all, countries. Some
works are covered by copyright in Spain for 80 years after the author's death.

In 1998 the length of a copyright in the United States was increased by 20 years under the
The Copyright Term Extension Act. This legislation was strongly promoted by
corporations which had valuable copyrights which would otherwise would have expired,
and has been the subject of substantial criticism on this point.

As a curiosity, the famous work Peter Pan, or The Boy Who Wouldn't Grow Up has a
complex – and disputed – story of copyright expiry.

Typefaces

In the United States, the Copyright Office maintains that typeface designs are not covered
by copyright, and it will not accept applications for their registration. See 37. C.F.R. §
202.1(e). However, if a design is novel and "non-obvious," it may be covered by design
patent. See, for example, U.S. Des. Patent No. 289,773 , May 12, 1987), Charles A.
Bigelow and Kris A. Holmes, inventors. Germany (in 1981) passed a special extension
(Schriftzeichengesetz) to the design patent law (Geschmacksmustergesetz) for protecting
them. This permits typefaces being registered as designs in Germany, too.

The United Kingdom (in 1989) has passed a law making typeface designs copyrightable.
The British law also applies to designs produced before 1989.

Accessible Copies
It is legal in several countries including Great Britain and the USA to produce alternative
versions (for example, in large print or braille) of a copyrighted work to provide improved
access to a work for blind and visually impaired persons without permission from the
copyright holder.[8][9]

International treaties
 Berne Convention for the Protection of Literary and Artistic Works of 1886
 Universal Copyright Convention of 1952
 Rome Convention of 1961
 The WTO Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS), of 1994
 WIPO Copyright Treaty of 1996
 WIPO Performances and Phonograms Treaty of 1996

Retrieved from "http://en.wikipedia.org/wiki/Copyright"

 Geographical indication
A geographical indication (sometimes abbreviated to GI) is a name or sign used on
certain products or which corresponds to a specific geographical location or origin (eg. a
town, region, or country). The use of a GI may act as a certification that the product
possesses certain qualities, or enjoys a certain reputation, due to its geographical origin.

History and legal effect

Governments have been protecting trade names and trademarks used in relation to food
products identified with a particular region since at least the end of the nineteenth century,
using laws against false trade descriptions or passing off, which generally protect against
suggestions that a product has a certain origin, quality or association when it does not. In
such cases the consumer protection benefit is generally considered to outweigh the
limitation on competitive freedoms represented by the grant of a monopoly of use over a
geographical indication.

In many countries the protection afforded to geographical indications by law is similar to

the protection afforded to trademarks, and in particular, certification marks. Geographical
indications law restricts the use of the GI for the purpose of identifying a particular type of
product, unless the product or its constitute materials originate from a particular area
and/or meet certain standards. Sometimes these laws also stipulate that the product must
meet certain quality tests that are administered by an association that owns the exclusive
right to the use of the indication. Although a GI is not strictly a type of trademark as it
does not serve to exclusively identify a specific commercial enterprise, there are usually
prohibitions against registration of a trademark which constitutes a geographical
indication. In countries that do not specifically recognize GIs, regional trade associations
may implement them in terms of certification marks.

Geographical indications have long been associated with Europe as an entity, where there
is a tradition of associating certain food products with particular regions. Under European
Union Law, the protected designation of origin system which came into effect in 1992
regulates the following geographical indications: Protected designation of origin (PDO)
and protected geographical indication (PGI) and Traditional Speciality Guaranteed
(TSG).

The system used in France from the early part of the twentieth century is known as the
appellation d'origine contrôlée (AOC). Items that meet geographical origin and quality
standards may be endorsed with a government-issued stamp which acts as official
certification of the origins and standards of the product to the consumer. Examples of
products that have such 'appellations of origin' include Tequila (spirits), Jaffa (oranges)
and Bordeaux (wines).

The consumer-benefit purpose of the monopoly rights granted to the owner of a GI also
applies to the trademark monopoly right. Geographical indications have other similarities
with trademarks. For example, they must be registered in order to qualify for protection,
and they must meet certain conditions in order to qualify for registration. One of the most
important conditions that most governments have required before registering a name as a
GI is that the name must not already be in widespread use as the generic name for a
similar product. Of course, what is considered a very specific term for a well-known local
specialty in one country may constitute a generic term or genericized trademark for that
type of product. For example, parmigiano cheese in Italy is generically known as
parmesan cheese in Australia and the United States.

Like trademarks, geographical indications are regulated locally by each country because
conditions of registration such as differences in the generic use of terms vary from country
to country. This is especially true of food and beverage names which frequently use
geographical terms, but it may also be true of other products such as carpets (eg. 'Shiraz'),
handicrafts, flowers and perfumes.

International trade made it important to try to harmonize the different approaches and
standards that governments used to register GIs. The first attempts to do so were found in
the Paris Convention on trademarks (1883), followed by a much more elaborate provision
in the 1958 Lisbon Agreement on the Protection of Appellations of Origin and their
Registration. Few countries joined the Lisbon agreement, however: by 1997 there were
only 17 members (Algeria, Bulgaria, Burkina Faso, Congo, Cuba, Czech Republic,
France, Gabon, Haiti, Hungary, Israel, Italy, Mexico, Portugal, Slovakia, Togo, Tunisia).
About 170 geographical indications were registered by Lisbon Agreement members as of
1997.

The TRIPs Agreement defines "geographical indications" as indications that identify a

good as originating in the territory of a Member, or a region or locality in that territory,
where a given quality, reputation or other characteristic of the good is essentially
attributable to its geographic origin. Examples of geographical indications from the United
States include: "FLORIDA" for oranges; "IDAHO" for potatoes; "VIDALIA" for onions;
and "WASHINGTON STATE" for apples. Geographical indications are valuable to
producers for the same reason that trademarks are valuable. Geographical indications
serve the same functions as trademarks, because like trademarks they are: source-
identifiers; guarantees of quality; and valuable business interests. Although, as mentioned
above "geographical indications" are often associated with Europe, the U.S. system for
protection of geographical indications can be dated to at least the Trademark Act of 1946.

Provisions of TRIPS

In 1994, when negotiations on the WTO Agreement on Trade-Related Aspects of

Intellectual Property Rights ("TRIPS") were concluded, governments of all WTO member
countries (151 countries As of August2007) had agreed to set certain basic standards for
the protection of GIs in all member countries. There are, in effect, two basic obligations on
WTO member governments relating to GIs in the TRIPS agreement:

1. Article 22 of the TRIPS Agreement says that all governments must

provide legal opportunities in their own laws for the owner of a GI
registered in that country to prevent the use of marks that mislead the
public as to the geographical origin of the good. This includes prevention of
use of a geographical name which although literally true "falsely
represents" that the product comes from somewhere else.
2. Article 23 of the TRIPS Agreement says that all governments must
provide the owners of GI the right, under their laws, to prevent the use of a
geographical indication identifying wines not originating in the place
indicated by the geographical indication. This applies even where the
public is not being misled, where there is no unfair competition and where
 the true origin of the good is indicated or the geographical indication is
accompanied by expressions such as "kind", "type", "style", "imitation" or
the like. Similar protection must be given to geographical indications
identifying spirits.

Article 22 of TRIPS also says that governments may refuse to register a trademark or may
invalidate an existing trademark (if their legislation permits or at the request of another
government) if it misleads the public as to the true origin of a good. Article 23 says
governments may refuse to register or may invalidate a trademark that conflicts with a
wine or sprits GI whether the trademark misleads or not.

Article 24 of TRIPS provides a number of exceptions to the protection of geographical

indications that are particularly relevant for geographical indications for wines and spirits
(Article 23). For example, Members are not obliged to bring a geographical indication
under protection where it has become a generic term for describing the product in
question. Measures to implement these provisions should not prejudice prior trademark
rights that have been acquired in good faith; and, under certain circumstances — including
long-established use — continued use of a geographical indication for wines or spirits may
be allowed on a scale and nature as before.

In the Doha Development Round of WTO negotiations, launched in December 2002,

WTO member governments are negotiating on the creation of a 'multilateral register' of
geographical indications.

Some governments participating in the negotiations (especially the European

Communities) wish to go further and negotiate the inclusion of GIs on products other than
wines and spirits under Article 23 of TRIPS. These governments argue that extending
Article 23 will increase the protection of these marks in international trade. This is a
controversial proposal, however, that is opposed by other governments including the
United States who question the need to extend the stronger protection of Article 23 to
other products. They are concerned that Article 23 protection is greater than required, in
most cases, to deliver the consumer benefit that is the fundamental objective of GIs laws.
 Geographical Indications: The Global and National Scenario

The development of GI is a time – tested process and to carve an aurora about the product
it takes decades if not centuries. GI creates a positive impression of the product quality, the
environmental virtue and human skill of the area. The premium price it fetches happens in a gentle
manner over a protracted period of time and by varied assessment procedures. Only if the GI can
create a positive mind frame on the client over the product will the GI be considered to have some
virtue. So while extending the use of GI for food products care should be taken to ensure that the
GI strictly complies with all these requirements. Extending the GI for products that are yet to
establish a reputation and consumer credibility will dilute the whole purpose of having market
dominance and may discredit the entire exercise.

The Trade related Intellectual Property Rights ( TRIPs) Agreement of the World Trade
Organization (WTO) in its Part II that describes ‘Standards of IPR’s ( Articles 9-40) has mentioned
of Geographical Indications (GI) in Section 3(Articles 22-24).The GIs, for the purposes of TRIPs
Agreement, have been described as indications which could be used to recognize that a good has
originated in particular territory, region or locality, where the given quality, reputation or other
characteristic of the good are essentially attributable to its geographical origin ( TRIPs Article
22.1). This explanation of the definition of term GI clearly specifies that quality, reputation or each
of the other specific characteristics of a good can provide sufficient basis for eligibility as a GI,
where they are essentially attributable to the
geographical origin of the good.
The GI can be used, when protected in legal terms, to prevent others from misleading the
public or creating unfair competition in trade for the goods that have their Origin from a particular
territory, region or locality Article 22.2 elaborates the need to have legal means to prevent use of
indications which mislead the public as to the geographical origin of the good , and use in a
manner that becomes an act of unfair competition (c.f.Article 10 bis of the Paris convention).One
important provision in this respect is to refuse or invalidate ex officio the registration of a
trademark, which uses a GI in a way that misleads the public as to the true place of origin.
According to Article 22.3, this may be done either as per the provisions under the law or at the
request of an interested party. Article 23 provides that even where the public is not being misled or
there is no unfair competition and the true origin of the good is indicated, and the GI’s
accompanied by expressions such as’’ kind ‘’ ‘’ type’’ ‘’ style’’ imitation ‘’ or the like, there must
be legal means to prevent the use of a GI identifying wines not originating in the place indicated
by the GI. This also applies to GIs identifying spirits when used on spirits, and must be similarly
protected. The Article 23 further requires that, protection against registration of a trademark must
be provided accordingly
A number of exceptions to the protection of GIs have been provided in Article 24.In
respect of additional for GIs for wines and spirits, these exceptions have particular relevance.
Under certain circumstances, continued use of a GI for wines or spirits may be allowed on a scale
and nature as before. Use of these exceptions has been linked to the willingness of member
countries to enter into negotiations about their continued application to individual GI’s.
Accordingly, the application of the provisions on the protection of GIs is to be under review
by the TRIP s Council. Further, it has been clearly provided that members countries shall not be
obliged to bring a GI under protection where it has become a generic term for describing the
product in question Also , the exceptions cannot be used to diminish the protection of GIs that
existed prior to the entry into force of the TRIPs Agreement. And, prior trademark rights that have
been acquired in good faith should not be prejudiced by the measures to implement the provisions
of any law on GIs.Finally, under the TRIPs Agreement other countries are under no obligation to
extend protection unless a GI is protected in the country of its origin.
The Legal Scenario in India
India has many products both natural and man made which have been produced for many
years and these products are known for their special characteristics and are associated with specific
geographical locations eg., Darjeeling tea, Basmati rice, Chanderi sarees etc., These has been a
very wide spread feeling in the names associated with such goods which should be legally
protected. Till recently, there was no specific law governing GIs of any agricultural goods, natural
goods or manufactured goods or any goods of handicraft or goods of industry including foodstuff
in India, which could adequately protect the interests of procedures of such goods. This could not
have prevented unauthorized persons from misusing GIs, leading to deception of the consumer,
including lack of promotion in the export market of goods bearing Indian GIs.
India, being party to the TRIPs Agreement, was required to extend protection of GI for
goods imported from other countries, which provide for such protection. On the other hand, a law
to the effect in the country was necessary because the other member countries would not be
obliged to protect Indian goods even if these have clear GIs unless legally protected in India. In
view of this, it was clearly important and necessary to have a comprehensive legislation for
registration of and providing adequate protection for GIs of Indian goods. Accordingly, The
Geographical Indications of Goods (Registration and Protection) Act, 1999 (Act 48 of 1999) was
enacted that extends to the whole of India. A notification by the Central Government in the Official
Gazette shall be made in respect of the date on which the Act shall come into force. Further,
different provisions of this Act may come into force of that provision. At present, the follow up
process for the development of Rules and Procedures is on for further implementation of the law.
The salient features of the Act include the definitions of several important/ relevant terms,
such as, GI, registered proprietor, authorized user, etc. Geographical Indication, as per the Indian
Law means an indication in relation to goods, which identifies such goods ( agricultural goods,
natural goods or manufactured goods or any goods of handicraft or of industry, including food
stuff) as originating, or manufactured in the territory of country, or a region or locality in that
territory, where a given quality, reputation or other characteristic of such goods is essentially
attributable to its geographical origin and incase where such goods are manufactured goods or one
of the activities of either the production or of processing or preparation of the goods concerned
takes place in such territory, region or locality. The explanation appended to this definition further
elaborates that for the purposes of this clause, any name which is not the name of country, region
or locality of that country shall also be considered as the GI if relates to and is used upon a specific
geographical area or in relation to particular goods originating from that country, region or locality.
According to the definitions, ‘Indication’ includes any name, geographical or figurative
representation or any combination of them conveying or suggesting the geographical origin of
goods to which it applies , and ‘Name’ includes any abbreviation of a name. The implied use of a
GI shall be a reference to a printed or other visual representation of the GI or as otherwise
specified. It shall also imply a reference to the use of the GI in physical or any other relation to
goods under reference. It has been further made clear that the words and expressions used in this
Act and not defined here but in the Trade Marks Act, 1999 shall have the same respective
meanings as assigned in the latter Act.
The Act mainly provides for the establishment of a Geographical Indications Registry, and
the maintenance of a Register of Geographical Indications in two Parts- Part A (all registered GIs)
and Part B (particulars of registered authorized users). Use of computers, etc, for maintenance of
such registers has been clearly provided in the Act. Further, it specififies classes of goods for
registration of their GIs and also prohibits registration of certain GIs. There is provision for higher
level of protection for notified goods, and also prohibition of assignment, etc, of a GI as it is a
public property. Registration of GI as a Trade Mark is prohibited and the appeal against Registrar’s
decisions would lie to the Intellectual Property Appellate Board established under the Trade Marks
legislation.
The Act includes certain statutory provisions, such as, framing of rules and procedures by
the Central Government, including application, its substantive examination, registration of
authorized users, renewal, rectification and restoration of the GI and the authorized user, etc. All
accepted GI applications must be advertised for inviting objections before acceptance of
registration. The details of the effects of registration and the rights conferred by registration should
be given Infringement action either by a registered proprietor or an authorized user, and provision
relating to offences and penalties are specified. There are provisions for reciprocity, powers of the
Registrar, maintenance of index, and protection of homonymous GIs.
There is provision of a Registrar of Geographical Indications (The Controller General of
Patents, Designs and Trade Marks appointed under sub-section (I) of section3 of the Trade Marks
Act, 1999 shall be the Registrar of Geographical Indications) and other officers and staff to
administer the Law 5. The Central Government shall establish a Geographical Indications Registry
and its branch offices with defined territorial limits to facilitate the registrations of GI. A Register
of Geographical Indications shall be maintained at the Head Office and all branch offices of the
registry where in specified material particulars of GI and the registered users thereof would be
entered. The register shall be divided into two parts, Part A and Part B;the particulars relating to
the registration of the GIs shall be incorporated in Part A of the register, and those relating to the
authorized users shall form part of Part B of the register. The GI can be registered in a prescribed
class of goods and in respect of a definite territory of a country or a region or locality. Such
classification shall conform to the international classification of goods as far as possible. Where
any question arises regarding classification of goods or the determination of the definite area of
GI, the decision to be given by the Registrar shall be final.
Registration of such GI is prohibited, the use of which may ( i ) cause confusion or likely
deceive , ( ii ) stand contrary to any law for the time being in force, ( iii ) comprise or contains
scandalous or obscene matter, (iv )comprise or contains any matter, which is likely to hurt the
religious feeling of any class or section of citizens of India (v ) be otherwise disentitled to
protection in a court , ( vi ) not protected or ceased to be protected in the country of origin or
which have fallen into disuse in that country , being generic names or indications of goods (vii )
falsely represent to the persons that the goods originate in another territory , region or locality ,
although literally true as to the territory , region or locality , in which the goods originate.
Registration of homonymous GIs is provided subject to the satisfaction of the register, after
considering the practical conditions under which the homonymous indication in question shall be
differentiated from other homonymous indication and the need to ensure equitable treatment of the
producers of the goods concerned, that the consumers of such goods shall not be confused or in
misled in consequences of such registration.
Any association of persons or producers or any organization or authority, established by or
under law, representing interest of producers of the concerned goods can apply to the Registrar for
the registrar of GI.The application has to be submitted along with prescribed fee etc.in the office of
of the Geographical Indications Registry (Head office of anyone of the regional offices) within
whose territorial limits, the territory, region or locality is situated to which the GI relates. It should
contain a statement of facts explaining as to how the GI serves to designate the goods as
originating form the concerned territory region or locality in the country in respect of specific
quality reputation or other characters of which are due exclusively or essentially to the
geographical environment ,with its inherent natural and human factors, and the production ,
processing or preparation of which takes place in such territory , region or locality. This should be
supported by the geographical map of the territory, region or locality in which the goods originate
or are being manufactured. It should also mention the class of goods to which the GI shall apply.
The appearance of the GI, whether in words or figurative elements or both and the particulars of
the concerned goods proposed to be initially registered of the GI, e.t.c, should also be specified in
the application
Application for registration of GI can also be submitted for cases where the
relevant territory, region or locality, is not situated in India. Such application has to be filed
directly in the office of the Geographical Indication s Registry within whose territorial limit the
services in India are intended as per disclosure in the application. The Act provides for refusal or
acceptance of application by the Registrar after suggested amendments, modification, conditions
or limitations. In such cases of refusal or conditional acceptance of applications for such refusal or
conditional acceptance and the materials used in arriving at such decision shall be recorded in
writing. Withdrawal of acceptance of an application for registration of a geographical indication, if
it has been accepted in error or other circumstances, is provided for Due opportunity shall
however, is given to the applicant to be heard in the matter before making such decision for
withdrawal.
Advertisement or re – advertisement of an application for registration by the
Registrar is provided for.Opposition, if any has to be submitted in writing to the Registrar within
three months, who in turn, shall serve a copy of the notice so received on the applicant. Within two
months from the receipt of the notice the applicant has to file a counter statement of the grounds
on which he relies in support of the application. Otherwise the application shall be deemed to have
been abandoned. The counter statement received from the applicant shall be shown to the
opponent and thereafter the registrar would dispose off the matter considering materials on record,
evidences and also provide an opportunity of hearing to both parties.
The Registrar is empowered to carry out correction of any error and amendments
that are found in an application, before or after acceptance. When an application has been accepted
unopposed after advertisement or has been opposed but decided in favor of the applicant, the
Registrar shall register the geographical indication and the authorized user, if any, mentioned in the
application finally, the date of filing of the application shall be the date of registration. A certificate
of registration shall be issued by the Geographical Indications Registry to all applicants and
registered users. A total period of one year is prescribed for completing the process from
application to registration. In unsuccessful cases, the application will become automatically void.
Any person claiming to be the producer of the goods in respect of which a GI has
been registered may apply to the Registrar and get registered as an authorized user of such GI. The
validity of registration of GI or an authorized user would be for a period of ten years. Both the
registrations can be renewed from time to time. In case the renewal is not got done within the
prescribed period or extended time, the GI and / or the authorized user are liable to be removed
from the records. However, under certain circumstances registration can be restored. In cases
where a GI has been removed from the register, it shall nevertheless, be deemed to be a GI already
on the register, for certain reasons or for reference by the Tribunal.
No persons shall be entitled to institute any proceeding to prevent or recover
damages for infringement of an unregistered GI. Also, the right of action against any person for
passing of goods as the goods of another person shall not be forbidden merely by registration of GI
or registered user.
A valid registration of a GI shall give the registered proprietor of the GI and the authorized
user or users thereof the exclusive right to the use of the GI in relation to the goods in respect of
which the GI is registered. A registered and valid GI shall give the right to obtain relief in respect
of infringement of the GI both to the registered proprietor and all authorized users whose names
have been entered in Part A and in Part B of the register. However, authorized users alone shall
have the exclusive right to the use of the GI in relation to the goods for which the GI is registered.
This right is subject to the conditions and limitations to which the registration is subject. It also
provides that two or more authorized users of a registered GI shall have co- equal rights.
Infringement of registered GIs by a person who, not being an authorized user thereof ,
uses such an indication on the goods or suggest that such goods originate in some other
geographical area other than the true place of origin of the goods which misleads the public .or
uses any GI in such manner which constitutes an act of unfair completion including passing off in
respect of registered GI, or uses another GI to the goods which , although literally true as to the
public that the goods originate in the region , territory in respect of which such registered GI
relates.
It also provides that the Central Government may by notification in the Official Gazette
,provide for additional protection for certain goods or classes of goods which are notified. It
further provides that once a GI is lawfully acquired, further dealing in such goods shall not
constitute an infringement unless the goods are impaired, after they have been put in the
market. Any assignment transmission licensing , pledge , mortgage or any such other
agreement of GI is prohibited, except for in case of death of an authorized user , wherein his
successor in title can be brought on record.
The registration of a GI as a trade mark is expressly prohibited. However , protection
is provided of a trade mark which contains or consists of a GI that was applied for or
registered in good faith under the trade marks have been used in good faith before the
commencement of the proposed legislation or before the date of fling of an application for
registration of a GI. It also provides that this Act shall not apply to GI with respect to goods
or class or classes of goods which have become the common name of such goods in India on or
before I January ,1995.It protects the right of any person to use his name or the of his
predecessor in business except where such name is liable to cause confusion or mislead the
pubic. It further provides that no action in connection with the use of registration of a trade
mark shall be taken after five years from the date form which such use or registration
which infringes any GI registered under this Act has become known to the registered
proprietor or the authorized user.
 Registrar or the Appellate Board can cancel or vary the registration of GI or of
an authorized user for the contravention or failure to observe, the conditions entered on the
Register. It enables any persons aggrieved by the absence or omission of any entry in the
register without sufficient cause or any entry wrongly remaining on the register by any error
or defect to apply to the Appellate Board or the Registrar to pass appropriate orders. The
Registrar and the Appellate Bored can suo moto after giving notice to the parties concerned and
hearing them, pass appropriate orders canceling varying or rectifying the register Correction
or alteration of register or adaptation of entries in register to amend or substitute
classification of goods is provided for.
The Penalty for falsifying or falsely applying GI to goods, shall be imprisonment of
not less than six months , which may extend to three years and with fine not less than fifty
thousand rupees but which may extend up to rupees two lakh.However,the court may for
adequate and special reasons to be mentioned in the judgment award a punishment lesser than
the minimum punishment provisions for other offences and punishment or penalty apply
(Chapter VI I I)
It is provided in the Act that Central Government may require, by notification in the
official gazette, that goods of any class specified in the notification which are made or produced
beyond limits of India and imported into India, or, which are made or produced within the limits of
India, shall have to apply to them an indication of the country or place in which they were made or
produced, or of the name and address of the manufacturer or the person for whom the goods were
manufactured. A notification may be issued subject to any application made for its issue by
persons or associations substantially representing the interests of dealers in, or manufactures,
producers, or users of, the goods concerned, or when the Central Government is otherwise
convinced in the public interest to issue the notification into India, if in respect of those goods, the
Commissioner of Customs is satisfied at the time of importation that they are intended for
exportation whether after transshipment in or transit through India or otherwise. In any proceeding
relating to a GI, the tribunal shall admit evidence of the usage of the trade concerned and of any
relevant GI legitimately used by other persons.
Special provisions relating to applications for registration from citizens of WTO
member countries in the Indian Law
Where any WTO member country would not accord to citizens of India the same
rights in respect of the registration and protection of GI s as it accords to its own nationals, no
nationals of such country shall be entitled to apply for the registration of, or be registered as the
proprietor of GI or to apply for registration or be registered as an authorized user of a GI.

Trade mark and GI

While TM indicates that the product is afflicted with the manufacture, the GI indicates to the
consumer, the high quality and reputation of the produce coming from a defined area. The GI can
be used by all producers in the area along with their. TM. But as a rule, TM that contains a GI
cannot be protected, if the use of the TM misleads the public about the true origin of the product.
Ethnic immigrant effects on GI
The post World War II period witnessed a large scale migration and settlement of people from old
world nations to the new world countries. These migrants carried with them their ethnic craft and
plants to their new found lands. They even named in the new territory provinces, cities, streets,
rivers and mountain after the ones in their ‘original homeland’. With several subsequent minor
modifications many foodstuffs and farm products were marketed in the new world with brand
names and GI that of their ‘original homeland’. This situation creates enormous confusion in the
market place between original and new settlement products. There is a running global debate on
this confusion of GI, and with emotions being high; the issue has become very complicated.
The need to avoid making GI too genetic.
A zone is an area of land without any particular qualifying attribute. And a region is a single tract
of land comprising independently owned farmlands, eg. North West India. A. region is said to be
discrete between and joining regions with measurable homogeneity. The sub- region ensures a
substational level of homogenetic in the attributes of the produce covering under GI. Therefore,
there is likely to be minor variation in the product, if the area is large. For example, Basmati puce
granted GI may cover the rice- growing tracts of North West India and Pakistan while there are
minor but acceptable levels of variations between Basmati for Amritsar, Karnal/ Kurukshetra and
Dehra Dun for the reason that this rice growing zone is quite large and enjoys same variation in
climate. The current Basmati definition accommodates certain defined number of varieties and if
the scope of the definition is further enlarged for the purpose of clubbing several of the new rice
genotypes that may have Basmati like or better grain, then such an action may even defeat the very
purpose of seeking market dominance for this product through GI.
References:
WTO.1995. Agreement on Trade Related Intellectual Property Rights, World Trade Organization.
URL http/www.wto.org.
The Geographical Indications of Goods (Registration and Protection) Act, 1999.Bare Act with
short notes Universal Law Pub. Co. Pvt. Ltd Delhi Pp.39
Intellectual Property Rights (IPR). A bulletin from TIFAC, Vol. 6, No.7 July, 2001. 1-5.
Nagarajan, S.Geographical, Indications and agriculture related intellectual property rights issues,
2007, Current Science, 92(2); 167-171.
 Industrial design rights
Industrial design rights are intellectual property rights that protect the visual design of
objects that are not purely utilitarian. An industrial design consists of the creation of a
shape, configuration or composition of pattern or color, or combination of pattern and
color in three dimensional form containing aesthetic value. An industrial design can be a
two- or three-dimensional pattern used to produce a product, industrial commodity or
handicraft.

Under the Hague Agreement Concerning the International Deposit of Industrial Designs, a
WIPO-administered treaty, a procedure for an international registration exists. An
applicant can file for a single international deposit with WIPO or with the national office
in a country party to the treaty. The design will then be protected in as many member
countries of the treaty as desired. Design rights started in the United Kingdom in 1787
with the Designing and Printing of Linen Act and have expanded from there.

Legislations
Canada

Canada's industrial design act affords ten years of protection to industrial designs that are
registered; there is no protection if the design is not registered. The Industrial Design Act
(R.S., c. I-8) defines "design" or "industrial design" to mean features of shape,
configuration, pattern or ornament and any combination of those features that, in a
finished article, appeal to and are judged solely by the eye.

During the existence of an exclusive right, no person can "make, import for the purpose of
trade or business, or sell, rent, or offer or expose for sale or rent, any article in respect of
which the design is registered." The rule also applies to kits and substantial differences are
in reference to previously published designs.

Japan

Article 1 of the Japanese Design Law states: "This law was designed to protect and utilize
designs and to encourage creation of designs in order to contribute to industrial
development". The protection period in Japan is 15 years from the day of registration.

United States

U.S. design patents last fourteen years from the date of grant and cover the ornamental
aspects of utilitarian objects. Objects that lack a use beyond that conferred by their
appearance or the information they convey, may be covered by copyright -- a form of
intellectual property of much longer duration that exists as soon as a qualifying work is
created. In some circumstances, rights may also be acquired in trade dress, but trade dress
protection is akin to trademark rights and requires that the design have source significance
or "secondary meaning." It is useful only to prevent source misrepresentations; trade dress
protection cannot be used to prevent others from competing on the merits.
United Kingdom

Under UK law there is both a registered design right and an unregistered design right. The
unregistered right, which exists automatically (depending on where and by whom the
design is created), lasts up to 15 years (depending on when articles according to the design
are put on the market), while the registered design right can last up to 25 years. UK
residents can also use the European Community Designs regime administered, as far as the
registered right is concerned via OHIM in Alicante.
IMPACT OF WTO ON AGRICULTURE IN DEVELOPING COUNTRIES:
AGREEMENT ON AGRICULTURE (AOA), TRIPS & PATENTS

1. Rationale & Introduction

The International trade has been under some regulations, which was governed by
GATT till 1995, but later it has bee 4n taken over by WTO. The primary differences
between GATT & WTO can be highlighted as below:

GATT WTO
* Oct 30, 1947 ( 23 members) * Jan 1, 1995 ( over 150 members now &
104 are Developing Countries)
* ad hoc & Provisional * Permanent
* Contracting parties agreed with the legal * Member countries are bound by legal
text organisation
* Deals trade in goods * Covers services & IPRs also
* Low dispute settlement rate @ 7 p.a.( 300 * High dispute settlement rate @ 42 p.a.
complaints in the 47 years) (132 complaints in the first 3 years)

Currently, the coverage of WTO includes many aspects of global trade, each
covering a particular domain, & the broad areas are:
1. Agreement on Agriculture (AoA)
2. Agreement on Textiles & Clothing (ATC)
3. Agreement on Transfer of Technology (ToT)
4. Agreement on Information & Technology (AIT)
5. Agreement on Pre Shipment Inspection (PSI)
6. Agreement on Technology Barriers to Trade (TBT)
7. Trade Related Intellectual Property Rights (TRIPS)
8. Trade Related Investment Measures (TRIMS)
9. Services
10. Rules of Origin
11. Sanitary & Phyto-sanitary (SPS) Measures
12. Antidumping measures (Art.VI)
13. Safeguards (Art.XIX): ‘grey area ‘measures &;’ sunset clause’
14. Subsidies & Counter vealing measures (Art VI, XV I XXIII)
15. Import Licenses procedures
16. Customs Valuation (Art. VII)
17. Trade Policy Review Mechanism
18. Labour; WTO / ILO Working Group
19. Dispute Settlement Understanding (DSU)
20. Patent Acts & Patents Cooperation Treaty (PCT)
But, in this paper we will be restricting our coverage & discussion to only AoA,
TRIPS & Patents along with their implications on developing like India

2. Brief History of GATT/WTO

Before we get into the details of the impact of WTO on various sectors of the
economy, it is better to know the historical perspective of WTO. The important milestones
in the birth & growth of GATT/ WTO can be summarized in some land mark events &
they can be enumerated as follows:

Oct.30,1947 : Birth of GATT (23 countries)

Feb.-Mar.1948 : Ist Round at Havana Cuba
Apr.-Aug.1949 : 2nd Round at Anney, France
Sept.50-Apr.1951 : 3rd Round at Torquay
May.1956 : 4th Round at Geneva
Sept.1960 : 5th Round at Dillon, Geneva
May 1964 : 6th Round at Kennedy, Geneva (50)
Sept.1973 : 7th Round at Tokyo, Japan(99 countries)
Nov.1982 : 8th Round at Uruguay
Sept.1986 : Ministerial Declaration Punta del Este,Uruguay
Dec.1988 : Ministerial meeting at Montreal
Dec.1990 : Ministerial meeting at Geneva
Apr.1994 : Final Act singed at Marrakesh, Morocco
Jan.1,1995 : Conversion to WTO at Marrakesh, Morocco
May.1995 : WTO H.Q. at Geneva
Dec.1996 : Ministerial Conference at Singapore
Feb.1997 : 69 countries agreed for liberalization
Mar.1997 : 40 Govts. Agreed to cut customs on IT
Nov.-Dec.1999 : Ministerial Negotiation at Seattle
2000-2001 : Agri. Negotiations are continuing...
2004 : India could convince WTO members from Developed
nations to accept some proposals of developing
countries

In addition WTO, the contribution of World Bank and International Monetary

Fund, the major International Trade Agencies cannot be undermined. Their main aim is to
(1) Stabilize currency values, (2) Encourage flow of development Finance & (3)
Formulate & implement the rules for intl. Trade which includes import duties. During
1950-97, the Intl. Trade has expanded 20 times & the Global income increased 6 times,
during 1946-86 the Average tariff came down globally from 45% to 5% while India raised
its average tariff from 40% to 150% & it assumes 130 th rank among 160 countries since
30% population under below poverty line (BPL).

India became Global because it was living in protected & regulated regime till
1991, which resulted in many disadvantages like:

1. Restricted trading opportunities * India’s share in Intl. Trade: 1.5% (1946), 0.5%
(1986).
2. Enhanced corruptive practices.
3. Increased inefficiencies.
4. More of political instability.
5. Serioius Balance of Payment (BoP) crisis.
6. Intl. Pressure was mounting.

But India took U-turn with New Economic policy (1991) by introducing
LPG (Liberalisation, Privatisation, and Globalisation) Policy though India was not fully
equipped for Global trade! while China became WTO member only recently, after it was
more equipped than most other developing countries.

3. Global Scenario of Agril. Trade.

The total Global Agril Trade is US$ 5000 billion of which the Agri. Exports
account for US$327 billion (6%), while the Agri. Imports is to the tune of US$349 billion.
Of this, the Asian Agri Exports contribute US$50 billion & Agri Imports US$90 billion.
When we come to India, whose 18.8% of Intl trade income comes from Agri Exports
worth US$3.37 billion ( Rs.1,28,117 Cr) & Agri Imports US$ 1.90 billion during 2000.

A quick analysis on impact of WTO on various countries indicates that it has

varying effects on developed & developing nations. For example, the study of 18
Developing countries for 1960-85 by Schiff & Waldes (1992) revealed that the Avg.tax on
Agri. Was 30.3%, rate of Agri. Growth was 2.7% p.a. when tax burden is 46.2% of farm
GDP (India’s Ag growth@ 2.0% pa for 25 years) & rate of Ag. Growth was 5.2% p.a.
when tax burden is 8.3% of farm GDP. Similarly, Prof. T.N.Srinivasan (1998) studied the
growth in Agri for 1951-91 in India, which revealed that growth share of National GDP
fell from 56% to 32% , Growth in working population on Agri fell from 71% to 64% &
Avg share of each farmer to National Income fell by 38% in 40yrs.

These figures are self- explanatory to understand the impact of WTO on emerging
economics like India.

4. Status of Agriculture in the Developed Nations ( DNs) & Developing Countries

(DCs)

We can understand that there are significant differences between the statuse of
Agriculture in Developing Nations & Developing Countries. According to Organisation
for Economic Cooperation & Devt (OECD), the DNs Increased support to Agri from US$
308 bn (1986-88) to US$ 361 bn (1999), expanded producers support Estimate (PSE) from
US$246 bn (1986-88) to US$ 283 bn (1999), Shift from Blue Box expenditure to Green
Box during 1997-98 from 1986-88 & the total Direct Payments up from 23% (1995) to
43% (1998).
On the contrary, status of Agriculture in the DCs reveal that Agri. Export fro DCs
to DNs remain at 30% of World Trade and is less than in 1975-80, DCs export to W-
Eurpoe 28.5% (1994) to 28% (1998), DCs export to Japan 14.5% (1994) to 11.5% (1998)
& Import of DCs increased, but exports remained stagnant.

The DCs are crying over Agreement on Agriculture ( AoA) because of the
following reasons:

* Agricultures as employer to DCs %GDP (1990-96)

Low –income countries 70% 35%
Middle income countries 30% 8%
High income countries 4% 1.5%

* Agri.Is imp. Source of FOREX earning to DCs.

 50% FOREX for 14 DCs
 30% FOREX for 28 DCs
* Food consumption is largest expenditure in DCs.
* High Socio-economic vulnerability of Agri in DCs.
* DCs can’t provide alternate employment to rural poor.
* Hunger & malnutrition is on rise in DCs during 1990-2000.
* Asymmetric imports and exports in DCs due to distorting Domestic Support by DNs.

5. Provisions & Implications of AoA under WTO

The various components / Provisions of AoA particularly during 1986-93 with

Uruguay Round Negotiations to reform Agri. Policies, which aimed at
1. Progressive reduction of distorting subsides.
2. Improve market access.
3. Curbs export subsidies in Agri.
This is addressed in two perspectives viz, Trade concerns & Non-Trade concerns,
which include some specific aspects.

Trade concerns:
1. Market Access (MA)
2. Domestic support (DS)
3. Export subsidies (ES)

Non – Trade concerns:

1. Food security
2. Environmental security
3. IPR safeguards (protecting domestic interests)
4. Reduce political instability (improve BoP position)

Let us understand & analyses these aspects in little more detail in the following
paragraphs along with their implications in globalised trade.

5.1 Market Access (MA) of AoA

In Market Access (MA), with 1986-88 as base period, the broad Provisions &
dimensions of its impact can be highlighted as follows:
* MA for Agri. Products governed by ‘Tariffs only’ i.e. non-tariff barriers like Quantitative
Restrictions like Quotas, Import licensing, import permits etc. to be replaced by tariffs.
-36% for DNs in 6 years (1995-2000)
- 24% for DCs in 10 years (1995-2004)
* Provide min. MA of 3% in domestic market

* MA is DNs is hampered to DCs in 6 years by

- increased tariffs on products required by DCs
- continuing plethora of non- tariff barriers
* Stringent Sanitary & Phyto-sanitary ( SPS) measures continue as major barrier to export
horticultural & meat products to DNs
* Trade Tariff Rate Quota ( TRQs) are not equitable & transparent
* Hence, MA is denied to DCs
* Art.13 of AoA awards Special & differential treatment to DNs, needs abolition
* Interest of small farmers can’t be safeguarded from Intl. Price fluctuation (Art 5 of AoA)
The realities of India’s Agril. Tariff Structure can be summarized in the following table:

Year Max.Tariff Import weighted Av.Tariff

Overall Agri.Goods
1990-91 350 87 70
1992-93 110 64 30
1994-95 65 33 17
1995-96 50 27 15

The Tax Reform committee of GOI recommended 0% , 10% ,50% tariff (1993) but the
tariff existing in 2000 for different commodities is given here below:
 300 % Coconut, palm oil
 150% Meat, fish, cotton, sugar
 100% Milk, cream, wheat, pulses
 45% Edible oils
 40% Butter & cheese
5.2 Domestic support (DS) of AoA

In Domestic support (DS), with 1986-88 as base period, the broad Provisions &
dimensions of its impact can be highlighted as follows:
 DS targeted mainly at DNs
  AoA stipulates reduction commitment of Total AMS (Aggregate Measure of
support) for
DNs by 20% in 6 years (1995-2000)
DCs by 13.3% in 10 years (1995-2004)
 Product specific support does not exceed DNs by 5% of Total value of exports
DCs by 10% of Total value of exports
 Green box & Blue Box support policies are exempted from DS
 Defines subsidies
→ Prohibited subsidies (direct influence on trade)

→ Actionable subsidies (adverse effect on signatories)

→ Non- Actionable subsides (specific / non-specific subsidies)

 Realities
→ Uruguay Round / AoA has not brought truly Liberalisation in Intl. Agri.Trade to DCs
→ DNs have shifted Blue-box to Green box; hence have not truly reduced DS
→ DCs have NOT got benefited by increased exports

The DS measures are given in either blue box or green box measures, which
include the following aspects:

Blue Box Measures

 Direct payment under production limiting programmes
 Certain Govt. assistance to encourage Agri.& Rural Development in DCs
 Decoupled income support
 Structural Adjustment assistance ( under producer retirement programmes)
 Payments under Environment, Regional assistance programmes
 Low proportion support measures (5% for DNs & 10% DCs) or non-production
specific support.
Green Box Measures
→ Support to Research
→ Control of pests & diseases
→ Training, Extension & Advisory services
→ Public stock for food security
→ Director Payment to producers
→ Farm Income insurance
→ Disaster Management expenses
→ Govt. support to income, Insurance, Income safety nets
→ Marketing & Infrastructure promotion services
→ Investment subsidies & Agri. Input services to Resource poor farmers.

It may be noted that most of DNs provide DS under green box measures, by tactful
manipulation & conversion from blue box measures, while they object for such practices
from DCs, hence making them less competitive in global trade by unfair trade practices.
5.3 Export Subsidy (ES) of AoA

In Export Subsidy (ES), with 1986-90 as base period, the broad provisions &
dimensions of its impact can be highlighted as follows:

√ Reduction in ES for DNs by 36% of expenditure in 6 years (1995-2000)

DNs by 21% of quantity in 6 years (1995- 2000)
DCs by 24% of expenditure in 10 years (1995-2004)
DCs by 14% of quantity in 10 years (1995-2004)
√ 25 WTO members have most trade distorting ES policies
√ ES in DNs discourage production in DCs & introduce unfair competition
√ ES are ‘rolled over’ to next year to cause cumulative depressive effect on prices & erode
competitive advantage of exporting DCs
√ Export Credit, Guarantee, Insurance not included in AoA but DNs operate these schemes
to distort exports
√ ‘Food Aid’ (Art. 16 of AoA) is used as marketing strategy as development strategy by
DNs

6. Implications of AoA to India

 Indian Agriculture is extensively diversified sector, which will be at receiving end
in World Market.
 India has to tap market for non-traditional export commodities
 India’s International trade is characterized by unstable and non-consistent markets
 Agri.exporters don’t get direct subsidy except
  IT Act Section 80-HHC ( exemption of export profit)
 Subsidies of freight cost ( fruits, vegetables and flowers)
 India may lose export orders due to stringent stipulation of SPS measures
 Possibility of causing welfare loss to domestic producers by antidumping
 Information network needs to be created & careful study of TBT ‘code of good
trade practices’ needed
 Review of patent law (TRIPs) should be completed soon to strengthen legal
framework.
 Take advantage of special & differential safeguard (SDA) measures against import
surges & sudden price troughs
 Promote max. Export Promotion Zones (EPZs) Firms (EPFs)

7. What India has done w.r.t AoA?

The measures of GoI in respect of AoA can be summarized here below:

╦ Increased import duties for

Poultry, arecanut 35% to 100%
Wheat 0% to 50%
Rice 0% to 70%
Skimmed milk 0% to 60%
Sugar 27.5% to 60%
╦ Increased customs duty for (budget 2001-02)
Tea, coffee, copra, coconut &
Desiccated coconut 35% to 70%
Crude edible oil 35-55% to 75%
Refined ed. Oil 45-65% to 85%
Palm oil 25% to 75%

╦ Import of packaged commodities should comply with weights & measures

(packaged commodity) order, 1977
╦ Import of 131 products (food preservatives, additives, milk products) should comply
with BIS norms
╦ Green Box measures: Tax holiday for 5 years & 30% reduction in profits for 5 years
for integrated exports business of handling transport & storage of food items.
 The other aspects of AoA to be given due attention in future are
 Standardization of sanitary & Photo-sanitary ( SPS) measures
 Special & Differential Safeguard (SDS) provisions against sudden price troughs &
import surges
 Trade in services & human capital
 Standardization of TRIPs
 Ensuring Environment safeguards & protecting against entry of welfare
deteriorating technologies
 Antidumping, customs valuation & pre-shipment inspection

8. Trade Related Intellectual Property Rights (TRIPS)

The broad provision of TRIPS, particularly the Article27 requires member’s

countries to protect innovations in all fields like health, food, biotechnology, pharma, etc.
Further, the Article 27.3(b) of TRIPS has adverse practical implications for almost all
developing countries; since they typically retain exclusions for living organisms in their
patent legislation, and usually do not have plant Breeder’s Rights (PBRs) - type legislation
for plant varieties. This is more specific when we are discussing this in relation to Patents
in next section.

9. Patent Acts & Patents Cooperation Treaty (PCT)

We all know that whenever we own a particular property like land, building,
financial assets etc, we are the ultimate owners of that property. Similarly, the Property
Rights in WTO context for a nation have four distinct characters, viz., Universal,
Exclusive, and Transferable & Enforceable.

A specialized dimension viz. Intellectual Property Rights (IPRs) are characterized

by NDUS i.e., Novelty, Distinctness, Uniformity & Stability. One of the major mode of
IPR protection to biological resources is Patents. In India, we are governed by the Indian
Potent Act (1970), which has become irrelevant now in WTO era but there are not many
steps to refine it to suit global needs.
 Just for an illustration, let us analyse the number of Patents registered at USPTO
during 1990-95, it was 25,000 for biotech Patents. Of which, US own 37%. Japan 37%,
Europe 19% & Rest of the world 7%. Again, the main users of these patents are about top
10 MNCs, hence increasing income disparity, influencing Tech. Transfer & in turn control
the global markets with a strong hold.

The world Investment Report –1999 studied & reported the recent trends in MNCs
& the summary indicates the below mentioned startling facts.

World MNCs DCs-MNCs

 Assets Foreign 1791 US$ bn Total
4212 US$ bn
 Sales Foreign 2133 US$ bn
Total 3984 US$ bn
 Employment 59.81 lakhs
Total 116.21 lakhs
 Avg Index of Multinationality
55.4%
 Assets Foreign 103 US$ bn
Total 453 US$ bn
 Sales Foreign 136 US$ bn
Total 306 US$ bn
 Employment 4.83 lakhs
Total 17.38 lakhs
 Avg Index of Multinationality
34.2%

In other words, the MNCs from DCs are far less penetrating in global trade
compared to MNCs from DNs; alternatively the Biotech / Pharma/Chemical etc.
companies from DCs are NOT expanding their operations more aggressively.

If we look at the Flair for R & D in India, as per CAG Report (16.8.2001), it
indicates that Indians have failed to make dent in respect of Patents & their commercial
exploitation. The facts are clearly indicated that the commercialization is far from
satisfactory.

# of Papers published 50,592 (1994) 42,263 (1998)

# of patents in India 1989-90:1890 1999-90:1881
# of patents foreign nationals in India 1324
# of patents of Indians abroad 557
R&D Expenditure 23% Increase from 1989-90 to 1999-00
R&D Expenditure in DNs is 2-3% of GNP
While in India & other DCs it is 0.5% GNP

The Status of Patents in India, which is registered by the premier academic

institutions, as detailed below, should be an eye opener for all of us for poor
commercialization of our talent & intellect.
Year Universities IISc & IITs Schools Total
1995 4 31 --- 35
1996 11 18 --- 29
1997 23 15 ---- 38
1998 15 34 1 50
Total 53 98 1 152

In all, we are registering just about 40-50 patents a year, which far less when
compared the vast R&D set up we have through DBT, CSIR, ICAR, Universities etc.

If we examine the few more facts, this is still more evident for example, during
1995 –98, of the total 1889, Herbal patents at USPTO, India did not have single patent
while China had 880 patents. Similarly, during 1976 –98 , of the total 314 Turmeric
Patents , India had only 4 patents though it crop of Indian origin; during 1985-98, of the
total 39 Neem patents USA owned 29, Japan 2 , India 7 & Germany 1, despite the fact
that much of basic research on Neem was done in CSIR Labs of India But due to money
power & technological tools, USA had mustered 29 of 37 patents, hence ruling the global
market
Hence the DCs like India have to assess, analyses & exploit the IPRs for their advantage in
the WTO era; else it will prove counterproductive to the nation.
We always face problem of getting patents in various countries, which is suitably
addressed by patent cooperation Treaty (PCT), which enables an inventor / a scientist
to make a sing le application for patents in simple procedures & get patent in large no. of
counters. More details can be had from either the www.wto.org or www.wipo.org or www.
wipo.int/ treaties / registration / pct/ index.html links.

Lets us briefly look into the pros & Cons of IPR sin DCs

PROS CONS
 Creates new knowledge  MNCs control global markets by
 Encourages R& D increased patent powers
 Discloses R&D findings to other  Increases the cost of products and
researchers services in DCs
 Enhances greater R&D in  Shifts bargaining power towards
developed countries producers than users
 Encourages transfer of Tech. To  Broad patent discourage follow on
DCs from developed nations invention
 The knowledge gap between
 Creates market for knowledge by industrial and developing countries
providing legal basis through increases
patents  MNCs take advantage of
indigenous knowledge in DCs
without adequate compensation

Similarly, the SWOT Analysis of Indian Biotech Sector reveals many aspects for
us to utilize & exploit

STRENGHTS WEAKESSES
* Trained manpower and knowledge base *Missing link between research
&commercialization
*Good network of research laboratories
*Discontinuity in academic R& D
* Rich bio diversity Projects / research
*Well developed base industries (e.g.
* Lack of venture capital to R&D in
pharmaceuticals , seeds )
General
*Access to intellectual resources of NRIs
*Abysmally low R&D culture
in Bio – tech
* Image of Indian industry – doubts
About ability of Indian predicts to
Meet intl. Standards i.e. quality

OPPORTUNITIES
 Large market base
 Adequate and cheap technical
manpower
 Enormous Export potential
 India is becoming good base for
contract research for MNCs due to
rising costs of R & D abroad
 Good scope for pharma research in
India: large number of patients
covering variety of diseases
THREATS
 Other developing countries
(e.g.China) investing heavily and
giving policy push to bio-tech
sector
 Danger of anti-biotech propaganda
gaining ground e.g. Bt cotton trial
controversy
 IPR policies are more favourable to
developed countries
 Inadequate policy frame work

The only way for India to ensure the protection of the interests of public is to
facilitate a Public Debate on IPR by involving R& D Scientists & MNCs, Information
Managers, Legalists, Economists, Ethicists, Sociologists, Civil societies & Govts, Inter
Govt. Agencies & NGOs /Vas etc. to formulate a sound policy followed by its effective
implementation. Such a comprehensive policy should encompass wide ranging issues
though it is a complex phenomena & requires continuous dialogue, and it is difficult too
but possible. It requires a blend of intellectual inputs & political will power. As Abraham
Lincoln puts it ‘Patent adds fuel to the fire of invention’ & we need to go a step further to
exploit majority of innovations on commercial scale in this WTO era.

10. CONCLUSIONS
From the foregoing discussion of the broad provisions, implications, and required
policy measures for effective handling of AoA, TRIPS & Patents, we can make few broad
observations & conclusions for developing countries in general & Indian in particular.
 Promote commercial Agriculture & treat like any other business enterprise, not just
a means to living
 Strengthen measures to respond to AoA / WTO requirements
 Utilize the available business Opportunities for commercialization of technologies
& innovations in Globalizes markets.
 Avail the AoA /TRIPS /Patent provisions to the best possible extent.
 Modify the legal acts to promote maximum exports, more particularly the Patent
Act to suit WTO requirements & avail max benefits in WTO regime
 Make joint & collaborative efforts to protect the national interests
 Pest Risk Analysis: HACCP and SPS measures under WTO
agreement

INTRODUCTION:
In India, agriculture contributes to 22% of the nations GDP and the total
farm subsidy is very meager (US $ 3.02 billion crores) as compared to OECD
countries, which offer high level of protection to agriculture, although agriculture
contributes least to the GDP. A fundamental question is with this level of
protection can developing countries emerge as competitor with developed
countries? Though, export potential of country depends upon the comparative
advantage it possesses, it may be thwarted by other trade distorting measures
imposed by the developed countries. Estimate shows that the share of
agricultural exports to developed countries has been declining over the years.
The declining share to developed countries was due to imposition of non-tariff
barriers and provision of huge subsidies which restrict the market access of
developing countries. There exists an immense potential for export of
horticultural and processed food products from India. In order to exploit the
export potentials of commodities, the constraints specific to each one of them
have to be thoroughly studied and the suitable strategy has to be designed.
When WTO regulations were agreed upon in 1995, six years and ten years
of time frame were provided to reorient the economic and production process for
developed and developing countries respectively. The WTO is the legal and
institutional foundations of multilateral trading system. It is a platform on which
trade regulations among countries are evolved through collective debate and
negotiation. The agreement contains 29 legal texts encompassing services to
government procurement, rules of origin and intellectual property.
The Agreement on Agriculture (AOA): It is designed to provide increased
fairness in farm trade. The agreement on trade related intellectual properties
(TRIP) is likely to improve the conditions of competitions where ideas and
inventions are involved. The agreement on Technical Barriers to Trade (TBT)
ensures that technical regulations and certification procedures will not create
obstacles to trade. It is the agreement on sanitary and phyto-sanitary (SPS)
measures which is directly related to the science of plant protection and it has a
major impact on phyto-sanitation and trade. The SPS agreement allows
countries to introduce SPS measures which result in a higher level of protection
that can be achieved by international standards. At present, there is no
uniformity in standards fixed by member countries and Codex Alimentarius
Commission (CAC), an international organization. There are diversions between
the standards fixed by developed countries, CAC and India. The SPS agreement
tries to overcome health related impediments to market access by encouraging
the establishment, recognition and application of common sanitary and phyto-
sanitary measures by different members.
HAZARD ANALYSIS CRITICAL CONTROL POINT (HACCP)
It is a well established method in Agri-business, which ensures risk free
production of food and is most applicable to mycotoxins. It is in fact a logical
plan to control the anticipated problems in the area of food safety. The HACCP
exercises a regular and systematic control from end to end of chain of food
production. It is considered to provide corrective action for the risk identified.
The Codex Alimentarious Commission general principles of food hygiene
lay a firm foundation for ensuring effective food control and food hygiene. The
general principles of food hygiene follow the food chain from primary production
to the consumer, highlighting key hygienic control at each stage. The codex has
established HACCP base approach to ensure food safety as a bench mark in the
international food trade. The HACCP approach is globally recognized as an
effective tool in ensuring the safety and suitability of food for human
consumption and in international trade. HACCP system uses the approach of
controlling critical control points to address food safety issues and thus
promotes international trade by increasing buyer’s confidence.
The application of HACCP system is compatible with the implementation
of quality management system such as ISO 9000 series. The work of CAC and
HACCP system and its guideline have become reference for international food
safety requirement. Some of the examples of application of HACCP measures
include making groundnut, chilli and maize free from aflatoxin contamination.
The specific standards have been fixed for permit of aflatoxin contaminated food.
Tolerance limit of Aflatoxin:
Aflatoxin Limits in ppb
Human food. feed for immature live stock 20 ppb
Breeding cattle, swine and mature poultry 100 ppb
Finishing swine 200 ppb
Finishing beef cattle 200ppb

Three types of HACCP risks:

1. Biological risk (Pathogenic microbes).
2. Chemical risk (Pesticide residue).
3. Physical risk (Glass or metal).
The export and import of vegetable from one country to another demands
SPS certificate that results in heavy loss due to rejection of whole lot at air
cargos due to mycotoxin, pesticide residues and other phyto sanitary problems.
PEST RISK ANALYSIS (PRA):
It has become obligatory to the member countries to base their SPS
measures on scientific evidences of pest risk. The international standards on
phyto-sanitary measures have been established under International Plant
Protection Convention (IPPC) in line with WTO agreement on application of SPS
measures. Scientific capability and capacity for PRA is an area of weakness
which deserves immediate attention of research institutes and universities
adequately supported by dynamic pest surveillance programme. This article is
also about some obligatory requirements outlined for PRA in the international
agreement, concept, key issues, analytical process, legal frame work, training,
resource and documentation needs for capacity building and strategic plan for
integrated PRA to meet the challenges of WTO-SPS agreement.
Pest + Risk + Analysis - some basic issues
Risk Analysis (IPPC): It is the process of evaluating biological or other
scientific and economic evidence to determine whether a pest should be
regulated and the strength of any phytosanitary measures to be taken against it.
It is considered to be a multi-stage process, which includes identification of risk
factor, assessment of the likelihood evaluation of impact options for risk
management and communication.
Under this context, a pest is defined as any spices, strain or biotype of plant
or animal or any pathogenic agent, injurious to plant or plant products (ISPM
No.2).
A quarantine pest is defined as pest of potential economic importance to
the area and endangered thereby and not yet present there.
A regulated non-quarantine pest is defined as a pest of potential economic
importance to the area endangered thereby and present there but not widely
distributed and being officially controlled. Hence, the pests requiring PRA
include quarantine pests + regulated non-quarantine pests. The critical
quarantine pests essentially required all pre-export treatments including
prohibition. Non-critical quarantine pest can always be treated at the point of
entry but pre-treatment is always preferred. However, the non-regulated pests
has no such requirements at all. The PRA being a multi-stage process includes
identification of risk factor, assessment of the likelihood, evaluation of impact,
options for risk management and finally communication of risk. Pest Risk
Analysis should be technically robust, transparent, justifiable, practically
achievable and consistent. There are several guidelines for PRA such as NAPPO
guidelines in 1993, WTO-SPS agreement 1995, ISPM’s 1996, FAO guidelines,
EPPO guidelines, ISPM 2001 supplements and drafts.
The WTO accepts all forms of analysis such as qualitative and
quantitative analysis and semi-quantitative analysis. Most of the developed
countries use the quantitative approach which demands significant increase in
resources. Normally the assessment of potential risk consequences should be
expressed in monetary value.
Case study: The best case study of PRA has been soybean import. The PRA
prepared by US scientists includes
i). The pest already presented in India and not under official control
ii). The pest not likely to follow the introduction pathway
iii). Pest not transmitted by seed in soybean
iv). Pest which has no potential economic importance in India.
The critical issues of PRA include the information that is currently
available, the determination of pest status in an area as per ISPM No.8, support
of surveillance as per ISPM No.6 and final analytic process of PRA.
Analytical Process of PRA: It includes four stages.
Stage I. Initiation: The following steps are involved in the initiation stage
1. Arrival of new commodity
2. Arrival of new source of origin
3. Interception in a imported consignment
4. Defining parameters of PRA
5. Establishing parameters of PRA
6. Compilation of post-pest list for endemic and global level
7. Authentication and validation of pest data
8. Identification of potential quarantine pest
Stage II. Risk assessment: The following steps are involved in risk assessment
stage
1. Pest categorization
2. Probability of introduction
3. Economic impact assessment
The quarantine pest identified in PRA stage I is assessed as to whether it
satisfies the criteria as per IPPC.
Stage III. Risk Management: The risk management is done at three levels
namely at pre-entry, entry and post-entry stages.
Pre- entry is mainly considered with making the area free from pests,
inspection and certification and treatment of consignment including
prohibition. At the entry level inspection, treatment and rejection or
destruction are practiced. At the post-entry level, auditing/conformation
surveillance and post-entry quarantine are the procedures followed.
Stage IV. Risk documentation and communications
Karnal bunt- a case study: After a brief review of Tilletia indica, considerable
discussion revolved around the status of Karnal bunt as a quarantine pest of
wheat and triticale, and the potential losses associated with the pathogen. It was
resolved that Karnal bunt did not qualify for any special status, nor that a
special category need be created for this pathogen. The importance of PRA as the
process for the determination of the strength of measures required for a pest was
emphasized and demonstrated. Considerable discussion also revolved around
economic losses and the interpretation of such losses. Opinions varied
considerably on the importance and definition of economic losses.
Recommendations Concerning the Strength of Measures for Tilletia indica

1. It is not possible to adopt a global position on the quarantine status of

Tilletia indica. This is because the pathogen does not present the same
risk for all countries.
2. Karnal bunt can be associated with losses ranging from insignificant to
significant, based upon a broad interpretation of losses (including losses
due to reduced yield, quality and loss of markets).

3. The risk associated with Karnal bunt and the strength of measures used
against T.indica should be considered separately for grain, commercial
seed, and research material.

4. Judgements concerning the acceptable level of risk will vary depending on a

number of factors which are considered in the PRA process as currently
described in ISPM Publication No.2.

5. Economic factors that are legitimately considered in risk assessment

include:

- type of damage (including quality losses) -crop losses

- Loss of export markets,
- Loss of domestic markets,
- Increases in control costs,
- Effects on IPM programmes,
- Environmental damage
- Capacity to act as a vector for other pests
- Perceived social costs such as unemployment
- Regulatory and research costs.

6. All impacts can be considered in economic terms, since biological and other
impacts will ultimately be interpreted in economic terms in the PRA process.

7. The strength of measures for Karnal bunt should be based on the pest risk
associated with the disease as determined by PRA. Stronger measures are
deemed to be justified wherever high risks are associated.

General recommendations

1. The relationship between PRA, the acceptable level of risk, the appropriate
level of protection and the strength of measures, is fundamental to the
concept of safe trade. These concepts and their relationship are to be
described as explicitly as possible, and are widely understood by scientists,
industry, the general public and regulators in all countries.

2. The SPS measures are to be based on PRA, irrespective of the level of

resources or degree of complexity involved. The countries need to recognize
that PRA can range from simple to the complex.
3. PRA should be more quantitative (less subjective), wherever possible to
maximize the quantitative inputs.

4. Research on risk management should offer greater precision in matching the

strength of measures to the pest risk.
5. Guidance is required for defining and evaluating the economic factors to be
considered in PRA.

6. PRA is not only the basis for deciding the strength of measures, but also for
reevaluating the strength of measures.

PRA and International standards:

The following standards serve as guiding documents for undertaking pest
risk analysis viz., ISPM- 2 guidelines for PRA, ISPM-6 guidelines for surveillance,
ISPM-8 determination of pests status, ISPM-11 PRA of quarantine pests ISPM-11
(Supplement) analysis of environment risks, ISPM-14, the use of integrated
measures in systems approach.
As per the provision of Article 5 of WTO-SPS Agreement, the member
countries must base their SPS measures on scientific evidence of pest risks.
Further as per Article IV, 1 and 2 (f) of Revised IPPC Text, each contracting party
shall make provision for an official national plant protection organization with
responsibility for PRA.
Capacity Building in the PRA front
Resources such as computers, internet connectivity, CABI crop
production compendium for accessing global pest data, GIS/climax tools are
handy tools. Adequately trained and skilled manpower for collecting the data
and information and expert consultation for country based PRA and holding of
national/ International workshop for review of PRA are essential. The PRA data
base development enables to progress the data and generate multiple reports as
per the need. It has a provision for pest mapping and data analysis of potential
quarantine pests using global pest data from crop protection compendium.
The supplement to ISPM-11 gives provision for analysis of environmental
risks of plants pests including those affecting uncultivated plant species, wild
flora, habitats, and eco-systems.
The ISPM-14 provides guidelines for integrated measures in systems
approach as an option for pest risk management. System approach integrates
measures for pest risk management which can also give appropriate level of
phytosanitary protection.

CONCLUSION
The HACCP has a major job of identifying specific hazards and
control measures in ensuring food safety, thus it can promote the international
trade by increasing buyer’s confidence. It is now globally recognized as an
effective tool in assuring the suitability of food for human consumption. Kerala is
the first state to establish National Centre for HACCP Certification. The process
of HACCP would particularly hold good in providing food items like nut and nut
products, fruits and vegetable, dairy products, spices etc. free from mycotoxin
contamination and pesticide residues.
The PRA is gaining more importance than ever before due to WTO-SPS
agreement and subsequent international standards prescribed. It is now realized
the capacity building for PRA is one of the areas which needs an immediate
attention to strengthen it. Risk is a pervasive part of decision making. Risk can
not be totally avoided unless decisions are totally avoided. The coordinated and
concerted efforts with ICAR and SAUs are essential to develop these capabilities.
Systems approaches, which can integrate measures for pest risk management
can definitely provide alternative to single measures. The purpose of risk
analysis is to improve decision and decision making process. Development of
integrated PRA system with a national coordination center could go a long way in
meeting the challenges of WTO-SPS agreement.
 Pesticide Registration & Implementation in India

A lecture presented on March 13, 2007 in winter school on “Recent developments in the
issues related to Intellectual Property Rights and their impact on Indian agriculture from March 6-
26, 2007” held at College of Agriculture, University of Agricultural Sciences, Dharwad – 580 005,
Karnataka, India.
Introduction
Pesticides are indispensable tools in today’s crop production systems which helps us to
meet the growing needs of food and fibre in a country like India. Being chemicals in nature,
pesticides are regulated by governments worldwide using appropriate laws to enable its proper and
safe use at nominal or low risks to humans and the environment. An attempt has been made in this
lecture to explain the process of pesticide regulation/ registration in India.
What is registration?
Regulatory approval/ registration certificate for a pesticide granted is meant for its Import,
Manufacture, Exhibition and Marketing. That means every pesticide needs to be registered before
it can be placed in the market for selling. This Regulatory Approval covers the entire gamut of
activities from Production to the Final use in the agricultural field including – Transportation,
Advertisement, Labeling, Spraying, Harvesting etc. the entity/ company which gets “Registration”
for its pesticide, this approval is an Intellectual Property (IP). The process of registration,
administered in India by the Central Insecticides Board (CIB) under the Ministry of Agriculture, is
a scientific process to evaluate Efficacy, Toxicity & Safety of the pesticide under registration. Risk
assessment is a recent evaluation being done in India though this is a normal practice in the
developed world.
What is registered of a pesticide is not merely its name but, also the various aspects of the
pesticide viz., its Recipe, Shelf-life, uses (label claim), Packaging, Antidote Labeling,
Manufacturing process, Method of analysis etc. The certificate of registration provided by the CIB
at the conclusion of the evaluation process specifies all these parameters, which shall be a binding
on the Registrant.
For the manufacturer/ registrant many kinds of IP, some are listed below, accrue out of the
Registration Process.
- Certificate of Registration (COR): This can be used in India and also in exporting
countries.
- Data packages generated on the product for submission to Regulatory authorities, on
various parameters viz., chemical & physical properties, Efficacy, Residues, Toxicology,
Safety etc.
- Trial data generated at the state agricultural universities/ ICAR institutes. These data come
handy for registration in abroad countries which have a similar crop and climate
conditions like India.
- Manufacturing process, Recipe of the product & the Packaging.
- Concurrent Trade names, Packaging designs, Copy rights etc.
How is registration?
As indicated above, CIB administers the Pesticide Registration in India through the
Parliament enacted law – Insecticides Act 1968 and the Rules there in. This legislation has its
origin to the reports of various food poisoning, the first of which came to light in April and May
1958, when contamination of an organo phosphorous compound was found to have caused food
poisoning, as a result of which many people died in Kerala and Tamil Nadu. Through the act it is
intended to regulate Use, Import, Manufacture, Distribution, Sale & Display and Transport.
Registration in India essentially consists of following steps
1. Adding to the Schedule of the Act.
2. Check Patent status of A I &/or Formulation
3. Data generation as per the guidelines
4. Submission to RC with fee
5. Expert review & overall view – Satisfaction
6. Approval by CIB AND Fixation of MRL by Health Ministry.
7. Enforcement by State Govt. (licensing authorities) (Mfg. License, Principal certificate)
Subsequent to India became a party to WTO Agreements of TRIPS in 1995, it is further to
necessary to check the patent status of the product before registration.
Types of registration
Various types of registration may be obtained from CIB depending on the requirements of
the registrant.
Broadly there are four types of registration.
→ Provisional registration/Experimental approval for large scale trials - u/s 9(3B).
→ Regular/Permanent registration - u/s 9(3) Full registration
- u/s 9(3) TIM/TI
→ Me-too/Repeat registration - Formulation u/s 9(4).
- Technical u/s 9(4)
→ Export registration - u/s 9(3).
The detailed categories under each type may list as follows.
Regular registration u/s 9(3)
1. Provisional: 9(3B) - Only limited data –2 years
2. Regular 9(3): All data needed. Import (TI – Technical Import) or Indigenous (TIM – Technical
Indigenous Manufacture)
3. Regular 9(3): TIM for a compound already registered for TI (Relaxed guidelines)
4. Regular 9(3): Formulation Import without tech registration (there is no clarity about 2nd
registration u/s 9(4) for Tech/ Formulation)
5. Regular 9(3): TI vs. TIM
6. Regular 9(3): TI vs. TI – Alternative source.
Me-too/ Repeat Registrations u/s 9(4)
1. Technical import (TI) from the same source
2. Technical import (TI) from different source (This has been now withdrawn & placed under 9(3)
3. Technical indigenous
4. TIM or TI for Household products
Export Registration u/s 9(3)
(Simplified Guidelines)
1. Import & Indigenous Manufacture of Technical – Not registered for use in India
2. Indigenous Manufacture - Formulations – Not registered for use in India
3. Technical & formulations (including the New types of formulations) – already registered in the
country with same, higher or lower concentration
4 Registration of New combination of pesticide Formulations
5. Botanical pesticides including Neem based pesticides/ Bt/ Bs/ NPV/ GV/ Antagonistic fungi etc.
6. Import of new formulations – Not registered for use in India
Data requirements for registration
The data requirements are intended to generate data and information necessary to address
concerns pertaining to identity, composition, potential adverse effects and environmental fate.
The registration committee (RC) has classified the data requirements on four parameters,
namely, Chemistry, Bioefficacy and Residues, Toxicity and Packaging and Labeling. The
committee has listed out, in general, the following data requirements, taking into consideration the
purposes of import and manufacture.
To begin with the process of application for registration, a product proposed to be
registered must have a single defined compound.
Chemistry
1. Source of supply : Source of manufacturing technology stating whether it is from R & D or
CSIR/CIAR technology or through collaboration with earlier registrants, if so details thereof.
In case of own R & D, the Registration Committee may have the verification of the process
developed and also ask for the technical grade sample for analysis.
2. Chemical Composition.
3. Chemical Identity.
4. Physio-Chemical Properties.
5. Technical Bulletin.
6. Specification.
7. Method of Analysis: Analytical details of active ingredient and the component of impurities
thereof.
8. Analytical Test Report: either from National Laboratory/Government
organization/Government University/Research and Development Center or any Laboratory
approved by Government.
9. Identification and quantification of identifiable impurities.
10. Shelf Life Claim.
Shelf Life Data
11. Establishment of chemical equivalence
12. Process of manufacture:
(a) Information about raw materials used.
(b) Their source of supply.
(c) Stepwise manufacturing process.
(d) Chemical Equations.
(e) Formula.
(f) Flow sheet diagram of process of manufacture.
 (g) Effluent treatment method.

13. Sample – date and place from where in-process sample could be drawn. Broad outline of
the steps involved including details of raw materials and intermediaries used and the
chemical reaction involved be provided along with the approved effluents treatment system
being used.
Bioefficacy and Residues
The usefulness of a pesticide chemical for the purposes intended will be determined upon
the basis of its practical pesticide, or biological effectiveness. Pesticidal effectiveness may be
established in terms of percentage reduction or control of pests or, when appropriate, increase in
yield or quality of crop following application of specified pesticide under the conditions
prescribed, compared with the results from adequate controls. Consideration may also be given to
other economic gain or practical benefit, including: economy or ease of production, harvest, or
storage of crop, flexibility as regards the time of planting or harvest or even at the possible
sacrifice or yield, and general benefit to livestock, plants or human welfare.
1. Bioeffectiveness.
2. Phytotoxicity.
3. Translocation within plants, being treated.
4. Metabolism in soil.
5. Metabolism in water.
6. Metabolism in plant.
7. Persistence in soil.
8. Persistence in water.
9. Persistence in plant.
10. Compatibility with other Chemicals.
11. Residue in plant.
12. Residue in soil.
13. Residue tolerance limits.
14. Purpose for import/manufacture.
15. Direction concerning usage.
16. Time of application.
17. Application equipment.
18. Waiting period.
19. Information regarding status in other countries.
Further since the potential effects of pesticides on the environment are of great importance
today, accordingly the applicants are required to fulfill the data requirements (listed below) on
Residue chemistry. The one key purpose of Residue chemistry data is to estimate the exposure of
the general population to pesticide residues in food and for setting and enforcing tolerances for
pesticide residues in feed or food.
1. Chemical identity.
 2. Direction for use.
3. Nature of residue (Plants and livestock)
4. Analytical method for residue.
5. Magnitude of residue (Crop field trials, processed food, feed, meat, milk, poultry, egg,
potable water, fish, irrigated crops and food handling.)
6. Reduction of residue.
7. Proposed tolerance.
8. Reasonable grounds in support of the claims.
9. Submission of analytical reference standards.
Toxicity
Toxicity means the physiological or biological property which determines the capacity of
chemical to do harm or produce injury to living organisms by other mechanical means. Risk means
the expected frequency of undesirable effects of exposure to the pesticide. Hazard means the
likelihood that a pesticide will cause an adverse effect under use-conditions. Valid and thorough
information on Toxicity is required to enable competent authorities to make decisions concerning
various aspects covered by pesticide registration.
The data required under Toxicity, listed as below, including those of Residue are as
recommended by Gaitonde sub-committee and approved by the RC.
1. Acute oral in rat and mice.
2. Acute dermal.
3. Acute inhalation.
4. Primary skin irritation.
5. Irritation to mucous membrane.
6. Sub-acute oral in rat and dog.
7. Sub-acute dermal.
8. Sub-acute inhalation.
9. Neuro-toxicity.
10. Synergism and potentiation.
11. Teratogenicity.
12. Effect on reproduction.
13. Carcinogenicity.
14. Metabolism.
15. Mutagenicity.
16. Toxicity to birds.
17. Toxicity to fish.
18. Toxicity to honey bees.
19. Toxicity to livestock.
20. Medical data.
21. Human toxicity information from other countries.
22. Observation in man (Health records of spray workers).
 23. Health record of industrial workers.
24. Toxicity to livestock (field trial and observation).
25. International report on carcinogenicity and genotoxicity.
The purpose of data requirements on wildlife organisms (Fish, honey bees, birds etc) is to
provide which determines the need for and appropriate wording for precautionary label statements
to minimize the potential adverse effects to these non-target organisms. These tests include short-
term acute, subacute, reproduction, simulated field and full field studies arranged in a hierarchical
or tier system which progresses from the basic laboratory tests to the applied field tests.
Evaluation can also be derived from a step wise procedure of tests and PREDICTION
MODELS, each of which has been designed to provide meaningful data. Field studies may be
needed in the initial stages of registration, to confirm predictions which indicate a need for further
information.
Packaging and Labeling
Rule 16 of the Insecticides Rules, 1971 makes it mandatory that any insecticide offered for
sale or cause to be transported shall be packed in accordance with the provisions of these Rules.
The packing obviously does not exclude any unit packing – from 500 g to 200-litre.
The data requirements in the area of packaging are;
1. Labels and leaflets as per the Insecticide Rules, 1971 existing norms.
2. Type of packaging (packaging material compatibility with the content)
3. Manner of packaging.
4. Specification for primary package.
5. Specification for secondary packaging.
6. Specification for transport packaging.
7. Manner of labeling.
8. Instruction for storage and use.
9. Information regarding disposal of used packages.
10. Process of manufacturing.
The purpose of establishing data for the packing of pesticides, and the measures to be
taken thereof is to ensure that the lids, liners, seams and container sides will not be damaged and
cause the contents to leak or spill during storage, transport, use or handling in any other manner.
The pesticide packed in a container must contain to meet the effectiveness and this
requirement may be satisfied by appropriate scientific evaluation of the compatibility of the
pesticide in the packing to determine that the chemical and physical characteristics of the pesticide
will not act adversely on the container resulting in spilling and leaking. Equally, the container shall
not act adversely on the pesticide during storage and use, resulting in the change of the pesticide-
product.
Toxicity triangle: The lower portion of the square referred to in sub-rule (4) shall contain the
colour specified in column (4) of the table below, depending on the classification of the
insecticides specified in the corresponding entry in column (1) of the said table.
Table
Classification of the Medium lethal dose Medium lethal dose by the Colour of
Insecticides by the oral route acute dermal route dermal identification band on
 toxicity LD 50 mg/kg.. body toxicity LD 50 mg/kg. the label
weight of test animals Body weight of test
animals
1. Extremely toxic 1-50 1-200 Bright red
2. Highly toxic 51-500 201-2000 Bright yellow
3. Moderately toxic 501-5000 2001-20000 Bright blue
4. Slightly toxic More than 5000 More than 20000 Bright green

In addition to the precautions to be undertaken under sub-rules (3), (4) and (5) the label to
be affixed in the package containing insecticides which are highly inflammable shall indicate that
it is inflammable or that the insecticides should be kept away from the heat or open flame and the
like.
The label and leaflets to be affixed or attached to the package containing insecticides shall
be printed in Hindi, English and in one or two regional languages in use in the areas where the said
packages are likely to be stocked, sold or distributed.
Labeling of insecticides must not bear any unwarranted claims for the safety of the
producer or its ingredients. This includes statements such as, "SAFE", "NON-POISONOUS",
"NON-INJURIOUS" or "HARMLESS" with or without such qualified phrase as "when used as
directed".
Types and codes of formulations: There are many types of pesticide formulations. Some of the
well known pesticide formulations and their international codes are listed below for the benefit of
the reader.
SP - Water Soluble Powder
EC - Emulsifiable Concentrate
GR - Granule
CG - Encapsulated Granule
Asr. - Aerosol
Sol. - Solution
WP - Wettable Powder
CB - Concentrated Bait
RB - Ready to use Bait
EW - Emulsion, oil in water
DS - Powder for Dry Seed treatment
SL - Soluble Concentrate
WG/WDG- Water Dispersible Granule
WS - Water Dispersible Powder for slurry treatment
ULV - Ultra Low Volume liquid
SC/FC Suspension Concentrate/ Flowable Concentrate
SG - soluble granules
CS - Colloidal Solution
Implementation of the Act
While central government takes all the responsibility till the section 11 of the act, from
section 12 the State Governments take the lead in the implementation of the provisions of the Act
and the rules made there under. While CIB & RC (Central Insecticides Board & Registration
Committee discharges the act at the Centre, the Licensing Officer enforces the act. At the state
level the stage being the appointment of licensing officers who are delegated by the State
Governments to grant licenses to manufacture, sell., including monitoring the licensee in matters
connected with the observance of the provisions of the Act and the Rules.
Any person desiring to manufacture or to sell, stock or exhibit for sale or distribute any
insecticide, or to undertake commercial pest control operations with the use of any insecticide may
make an application to the licensing officer for the grant of a license
Licensing Officer: The Licensing Officer is the only authority under the provisions of the Act to
grant or renew any license. The licenses are classified as below.
1. License to manufacture insecticides
2. License to sell stock or exhibit for sale or distribution of insecticides.
3. License to undertake Commercial Pest Control Operations.
Rules are prescribed for each of the above categories for implementation of the provisions
of the Act. Rules are also prescribed applicable to all the categories, in common.
License to Manufacture Insecticide: The certificate of registration is the basic document for a
license to manufacture insecticide. The Central Insecticides Board hands over to the State
Government, where the registrant proposed in his application to manufacture the insecticide, a
copy of the registration which contains the following particulars required for it to implement and
enforce the conditions of registration:
1. Chemical composition
2. Shelf life
3. Applications
4. Packaging
5. Label including leaflet
The state authorities are, under the Act and the Rules, provided with the guidelines for
implementing and monitoring strict compliance by the manufacturers in respect of the above
conditions of registration, and the vested with powers for enforcement and launching prosecution
proceedings and the matters related thereto. It is the responsibility of the conditions of registration.
The Licensing Officers are armed with powers to suspend, revoke and cancel the license for
violations of the conditions of the registration and license as well as contravention of any of the
provisions of the Act and the Rules made there under.
Among the enforcement authorities at state level in addition to Licensing Officer, the other
two key are Insecticide Analysts at the Pesticide Testing Laboratories and the Insecticide
Inspectors. Rule 21 prescribes the qualifications, powers and duties of each of these two officials.
Qualifications of Insecticide Analyst: A person shall be eligible for appointment as an insecticide
analyst under the Act only if he possesses the following qualifications, namely:
a. A graduate in Agriculture or a graduate in Science with Chemistry as special
subject; and
b. Adequate training in analyzing insecticides in a recognized laboratory.
Powers of Insecticides Analyst: The Insecticides Analyst shall have power to call for such
information or particulars or do anything as may be necessary for the proper examination of the
samples sent to him either from the Insecticides Inspector or the person from whom sample was
taken.
Duties of Insecticides Analyst: The Insecticides Analyst shall analyze or cause to be analyzed or
test or cause to be tested such samples of insecticides as may be sent to him by the Insecticide
Inspector under the provisions of the Act and shall furnish report or results of such tests or
analysis.
Qualifications of Insecticides Inspector: A person shall be eligible for appointment as an
Insecticides Inspector under the Act only if he possesses the following qualifications, namely:
a. Graduate in Agriculture, or graduate in Science with Chemistry as one of the subjects; and
b. Adequate field experience.
Duties of the Insecticides Inspector: The Insecticides Inspector shall have the following duties,
namely:
a. to inspect not less than three times in a year all establishments selling insecticides within
the area of his jurisdiction;
b. to satisfy himself that the conditions of license are being complied with;
c. to procure and send for test and analysis, samples of insecticides which he has reason to
suspect are being sold, stocked or accepted for sale in contravention of the provisions of
the Act or rules made there under;
d. to investigate any complaint in writing which may be made to him;
e. to institute prosecution in respect of breaches of the Act and the rules made there under;
f. to maintain a record of all inspections made and action taken by him in the performance of
his duties including the taking of samples and seizure of stocks and to submit copies of
such record to the licensing officer;
g. to make such inquiries and inspections as may be necessary to detect the sale and use of
insecticides in contravention of the Act.]
Duties of Inspectors specially authorized to inspect manufacture of Insecticides: It shall be the
duty of any Inspector authorized to inspect the manufacture of Insecticides –
a. to inspect not less than twice a year all premises licensed for the manufacture of
insecticides within the area of his jurisdiction and to satisfy himself that the conditions of
the license and the provisions of the Act or the rule made there under are being observed;
b. to send forthwith to the licensing officer after each inspection, a detailed report indicating
the conditions of the license and the provisions of the Act or rules made thereunder which
are being observed and the conditions and provisions, if any, which are not being
observed;
c. to draw samples of insecticides manufactured on the premises and send them for test or
analysis in accordance with these rules;
d. to report to the government all occurrences of poisoning.
The analysis report signed by an Insecticides Analyst shall be treated as an evidence in the
court of law and such evidence shall be conclusive unless the person from whom the sample was
taken intends to adduce the evidence in controversial of the report. However the re-analysis report
of Central Insecticides Laboratory, if it is carried-out as per the direction of the court or at the
request of the complaint, shall be conclusive evidence of the facts.
Conclusions
1. Pesticides are indispensable tools in today’s crop production systems to which helps us to meet
the growing needs of food and fibre in a country like India.
2. Regulations for introduction of pesticides continue to increase in their Complexity world wide.
3. Patenting of the product AND Data protection is a challenge to Manufacturers/ Exporters of
India.
4. New pesticides & their Regulations are of continuous development. Prohibitive cost of Data
generation, Registration, Patenting, Compliance & other costs makes introduction of new
products difficult.
5. New pesticides are introduced to Indian market every year. Before these new products are
introduced they are rigorously assessed by central government authorities to ensure that they
meet current health, environment and safety standards. Even after introduction the state
government through its machinery ensures that the products conforming to specifications are
only made available in the market for use.
References
1. Law relating to Insecticides in India, Edited by M Narayanaswamy (2001) 3 rd Edition,
Wadhwa & Company, Law publishers, Agra/ Nagpur/ New Delhi.
2. Central Insecticides Board and Registration Committee, Directorate of Plant Protection and
Quarantine, Department of Agriculture & Co-operation, Ministry of Agriculture, NH IV,
Faridabad, Haryana, May 2007 (Extract from the official website http://www.cibrc.nic.in)
3. Registration requirements for new generation pesticides and formulations: A global view. Proc.
Intern. Conf. Pesticide Environment, Food Security (2004) pp: 80 – 83. Society for Pesticides
Science India, IARI, New Delhi.
 Sanitary and Phytosanitary Measures in IPR System
Introduction:
Sanitary and phytosanitary agreement of WTO:
Sanitary and Phytosanitary agreement provides the legal standards for plant, animal and
human safety. All the members of the WTO are revised to develop their phytosanitary measures
based on international standards and transparent procedures. (Www.wto.org)
Sanitary and Phytosanitary Measures
Objectives:
a) To protect animal or plant life or health from risks arising from the entry,
establishment or spread of pests, diseases, disease-carrying organisms or disease
causing organisms.
b) To protect human or animal life or health from risks arising from additives,
contaminants, toxins or disease causing organisms in food, beverages or foodstuffs.
c) To protect human life or health from risks arising from diseases carried by animals,
plants or products thereof, or from the entry, establishment or spread of pests, or
d) To prevent or limit other damage from the entry, establishment or spread of pests.
Existing International Organizations for Standards
a) For food safety: The Codex Alementarius Commission Rome is the authority for
all matters related to international food safety evaluation and harmonization.
b) For animal health and zoonosis: The standards, guidelines and recommendations are
developed under the auspices of the International Office of Epizootics (IOE), Paris.
c) For plant health: The International Plant Protection Convention
The above three organizations are often referred: "Three Sisters". These are observers and
important contributors to SPS committee meetings: are also experts to give advice to WTO in
dispute settlement.
Principles laid down by IPPC for sanitary and phytosanitary measures:
General Principles: General Principles are those stressed a bit less compared to specific
principles and left to the discretion of member country.
1. Sovereignty: It is recognized that countries have sovereign right to use SPS measures to
protect its flora and fauna.
2. Necessity: Countries should institute restrictive measures only when there is real necessity.
3. Minimal impact: Such measures should cause minimum impediment to international
movement of people, commodities and conveyances.
4. Modification: Such restrictive measures should be modified as conditions change and new
facts available by addition or deletion.
5. Transparency: Should be transparent in entirety to other countries.
6. Harmonization: Phytosanitary measures should be according to international standards.
7. Equivalence: Phytosanitary measures of other countries, which are not identical but have
same effect, should be recognized as being equivalent.
8. Dispute settlement: Any dispute between two member countries regarding phytosanitary
measures should be resolved at a technical bilateral level if it is not achieved further action can
be taken by means of a multilateral system involving IPPC.
Specific principles: are more or less obligatory
9. Co-operation: Countries shall co-operate to prevent the spread and introduction of quarantine
pests and to promote measures for their official control.
10. Technical authority: Countries shall provide an official plant' protection organization to
represent at international level.
11. Risk analysis: Countries should follow a detailed pest risk analysis to support their
phytosanitary measures.
12. Managed risk: Countries should agree to risk management while formulating phytosanitary
measures, as some risk of introduction of a quarantine pest always exists.
13. Pest free area: Countries shall recognize the status of pest free areas, established through
produces developed within the framework of IPPC.
14. Emergency action: When an unexpected phytosanitary situation arises countries can take
immediate emergency measures on the basis of preliminary pest risk analysis and a detailed
pest risk analysis should be conducted as soon as possible.
15. Notification of non-compliance: Importing countries shall inform exporting countries of any
non-compliance with phytosanitary prohibitions, restrictions or requirements.
16. Non-discrimination: Phytosanitary measures shall be applied without discriminating between
countries and also between domestic and imported consignments.
Sanitary and phytosanitary standard as barriers to indian exports
Imposing
Year Item Reason cited
nation
1995 Germany Tea Pesticide residue
1995 USA Shrimps Presence of Salmonella
1996 USA Fruits and vegetables Does not conform to standards
1996 USA Shrimps Caught with turtle excluding devices
1996 EU Shrimps Usage of Benzoic acid as an additive
1999 EU Groundnuts Presence of Aflatoxin
2001 Iraq Wheat Not of desired quality
National Plant Quarantine Setup
Export and Import Committee (EXIM) regulates bulk exchange of food items. EXIM
comprises of members from different Ministries and National Bureau of Plant Genetic Resources
under ICAR. The committee works under the overall leadership of Chief Controller, Import and
Export (CCIE), Govt. of India. The clearance for import of Genetically Modified Organisms
(GMO's) is granted by the Review Committee on Genetic Manipulation (RCGM). The RCGM has
been setup under Environment Protection Act, 1986, through a notification dated 5th December
1989.
Plant materials are imported into India under the Plants, Fruits and Seeds (Regulation of
Import into India) Order, 1989 popularly known as PFS order, issued under Destructive Insects and
Pests Act, 1914.
Three categories of materials are being imported under the PFS Order, 1989: a) bulk
consignments of grains/pulses for consumption, b) bulk consignments of seeds/planting materials
for sowing/planting, and c) samples of germplasm in small quantities and transgenic planting
material for research purposes. The Plant Quarantine and Fumigation Stations under the
Directorate of Plant Protection Quarantine and Storage undertake quarantine processing and
clearance of consignments of the first two categories and NBPGR looks after the third category.
PFS order 1989 has specified plants/planting materials that are i) prohibited to import into
India ii) permitted for import with additional declarations, and iii) permitted to import under
restricted conditions. Import permit and Phytosanitary Certificates are essential for importing plant
material into the country.
 Mask work
A mask work is a two or three-dimensional layout or topography of an integrated circuit
(IC or "chip"), i.e. the arrangement on a chip of semiconductor devices such as transistors
and passive electronic components such as resistors and interconnections. By extension, it
also refers to the copyright-like intellectual property right conferring time-limited
exclusivity to reproduction of a particular layout. The layout is called a mask work
because, in photolithographic processes, the multiple etched layers within actual ICs are
each created using a mask, called the photomask, to permit or block the light at specific
locations, sometimes for hundreds of chips on a wafer simultaneously.

Because of the functional nature of the mask geometry, the designs cannot be effectively
protected under copyright law (except perhaps as decorative art). Similarly, because
individual lithographic mask works are not clearly protectable subject matter, they also
cannot be effectively protected under patent law, although their combined functions and
structure certainly may.

The United States Code (USC) defines a mask work as "a series of related images,
however fixed or encoded, having or representing the predetermined, three-dimensional
pattern of metallic, insulating, or semiconductor material present or removed from the
layers of a semiconductor chip product, and in which the relation of the images to one
another is such that each image has the pattern of the surface of one form of the
semiconductor chip product" (17 U.S.C. § 901 (a) (2)). Mask work exclusive rights were
first granted in the US by the Semiconductor Chip Protection Act of 1984. In Canada these
rights are protected under the Integrated Circuit Topography Act (1990, c. 37). Equivalent
legislation exists in Australia and Hong Kong.

Mask work rights under US Law

According to 17 U.S.C. § 904, rights in semiconductor mask works last 10 years. This
contrasts with a term of 95 years for modern copyrighted works with a corporate
authorship; alleged infringement of mask work rights are also not protected by a statutory
fair use defense, nor by the typical backup copy exemptions that 17 U.S.C. § 117 provides
for computer software. Nevertheless, as fair use in copyrighted works was originally
recognized by the judiciary long before being codified in statute law, it's possible that the
courts might likewise find a similar defense applies to mask work.

The non-obligatory symbol used in a mask work's protection notice is Ⓜ (M enclosed in a

circle; Unicode code point U+24C2 or HTML numeric character entity &#9410;) or *M*,
not (M) in parentheses as some web browsers may render it.

Mask works, copyrights, and read-only memory

The exclusive rights in a mask work are somewhat like those of copyright: the right to
reproduce the mask work or (initially) distribute an IC made using the mask work. Like
the first sale doctrine, a lawful owner of an authorized IC containing a mask work may
freely import, distribute or use, but not reproduce the chip (or the mask). Mask work
protection is characterized as a sui generis right, i.e., one created to protect specific rights
where other (more general) laws were inadequate or inappropriate.
Note that the exclusive rights granted to mask work owners are more limited than those
granted to copyright or patent holders. For instance, modification (derivative works) is not
an exclusive right of mask work owners. Similarly, the exclusive right of a patentee to
"use" an invention would not prohibit an independently created mask work of identical
geometry. Furthermore, reproduction for reverse engineering of a mask work is
specifically permitted by the law. As with copyright, mask work rights exist when they are
created, regardless of registration, unlike patents, which only confer rights after
application, examination and issuance.

Mask work rights have more in common with copyrights than with other exclusive rights
such as patents or trademarks. On the other hand, they are used alongside copyright to
protect a read-only memory (ROM) component that is encoded to contain computer
software.

The publisher of software for a cartridge-based video game console may seek
simultaneous protection of its property under several legal constructs:

 a trademark registration on the game's title and possibly other marks such
as fanciful names of worlds and characters used in the game (e.g., PAC-
MAN®);
 a Form TX copyright registration on the program as a "literary work";
 a Form PA copyright on the visual displays generated by the work
(depending on whether code or art dominates a program); and
 a Form MW mask work registration on the ROM that contains the binary.

The expiration date for the term of mask work may be set according to an untested
interpretation of the originality requirement of § 902(b), based on the release of the
console, not any particular cartridge.

(b) Protection under this chapter (i.e., as a mask work) shall not be available for a mask work that-

(1) is not original; or

(2) consists of designs that are staple, commonplace, or familiar in the semiconductor
industry, or variations of such designs, combined in a way that, considered as a whole, is
not original
(17 U.S.C. § 902, as of February 2003).

Under this interpretation, a mask work containing a given game title is either entirely
unoriginal, as mask ROM in general is likely a familiar design, or a minor variation of the
mask work for any of the first titles released for the console in the region, normally the
cartridge included with the system. In the United States, this is Super Mario Bros. (NES),
Tetris (Game Boy), Altered Beast (Sega Genesis), Super Mario World (Super NES),
Mario's Tennis (Virtual Boy), Super Mario 64 (Nintendo 64), or Super Mario Advance
(Game Boy Advance).

This could explain why Nintendo waited until lawmakers passed the DMCA and foreign
counterparts before releasing a game console that used media other than cartridges. On the
other hand, the previously existing copyright law would still protect the underlying
software (source, binary) and original characters and art from copying or derivative works.
International treaties

The Treaty on Intellectual Property in respect of Integrated Circuits, also called

Washington Treaty or IPIC Treaty (signed at Washington on May 26, 1989) is currently
not in force, but was partially integrated into the TRIPs agreement.

Retrieved from "http://en.wikipedia.org/wiki/Mask_work"

 SWISS FORMULA IN INTERNATIONAL TRADE- BOON or BANE FOR
DEVELOPING COUNTRIES?

INTRODUCTION
The tradition of international trade can be traced back to the days of Indus valley
civilization in 3000 B.C. When trade between India, Mesopotamia, and Egypt was a
regular phenomenon. The merchant class was wealthy and evidently played an important
role. There was a colony of Indian merchants living at Memphis in Egypt around 5th
century B.C. as the discovery of modeled heads of Indians there has shown. Probably,
India traded with the island countries of South East Asia also.
Gordon Childe writes, Manufactures from the Indus cities reached even the
markets on the Tigris and Euphrates. Conversely, a few Sumerian devices in art,
Mesopotamia toilet sets, and a cylinder seal were copied on the Indus. Trade was not
confined to raw materials and luxury articles: fish, regularly imported from the Arabian
Sea coats augmented the food supplies of Mohenjodaro. Moreover, Childe's observation,
it would seem to follow that the craftsmen of the Indus cities were, to a large extent,
producing "for the market" reveals their market-oriented approach, which was little known
to the rest of world at that time.
Throughout the first millennium of the Christian era, India's trade activities became
widespread and Indian merchants controlled many foreign markets. It was a dominant
force in the Eastern markets and it also reached out to the Mediterranean markets. Pepper
and other spices were exported from India or via India to the West, often on Indian and
Chinese boats, and it is said that Alaric the Goth took away 3,000 pounds of pepper from
Rome. Roman writers bemoaned the fact that gold flowed from Rome to India and other
Eastern countries in exchange for various luxury articles.
BACKGROUND OF INTERNATIONAL TRADE
Rapid integration of economies in terms of trade flows, movement of capital, and
migration of people took place during the pre – World War I period of 1870 to 1914. The
pre-World War I period witnessed the growth of globalization mainly led by technological
forces in the field of transport and communication. There were fever barriers to flow of
trade and between people across geographical boundaries. In fact, there were no passports
and visa requirements and very few non-tariff barriers and restrictions on fund flows.
However, between the first and second world wars, the pace of globalization got
decelerated. Various barriers to restrict free movement of goods and services were erected
during the inter-war period. Under high protective walls, most economies recorded higher
growths. It was resolved by all leading countries after World War II that earlier mistakes
committed by them to isolate themselves should not be repeated. Moreover, after 1945,
there was a drive to increase integration and co-operation among countries in the area of
trade and commerce, which took a long time to reach the pre- World War I level. In terms
of the percentage of imports and exports to total output, the US could reach the pre-World
War I level of 11% only around 1970. Most of the developing countries which gained
independence from colonial rule in the immediate post-World War II period followed an
import substitution strategy to promote local industries. The countries from Soviet bloc
shielded themselves from the process of global economic integration.
However, during the recent decade more and more developing countries are
turning towards outward oriented policies of growth. Yet, studies point out that trade and
capital markets are no more globalize today as they were at the end of the 19 th century.
The share of exports in GDP for 16 major industrial countries was 18.2% in 1900 and
21.2% in 1913. In 1992, the share was still lower at 17% for the industrial countries.
While international investment flows measured by absolute value of current account
exceeded 3% of GDP before 1914, it slumped to less than half that level in 1930s and only
after 1970 began to move decisively upward-reaching 2,3% in 1990-96.
The major concerns about the on going process of globalization are significantly
higher than before because of the nature and speed of transformation. What is striking in
the current scene is not only the rapid pace but also the enormous impact of new
information technology on market integration, efficiency, and industrial organization.
Integration of a country’s economy is associated with faster growth. The emerging
evidence from a large number of studies carried out by World Bank suggests that the
countries that trade more grow faster.
The growth of world trade has been faster than the growth of world output over the
years except for the year 2001. The trade in goods as a percentage of GDP has gone up
significantly from 32.5% in 1990 to 40.3% in 2002. It means that more goods and
services have been and will continue to be traded across borders. Therefore, international
marketing has a significant role to play in such a scenario.
During the last few decades the marketing environment across the world has
witnessed unprecedented changes which have metamorphosed the entire approach to
marketing. Increase in income levels in nearly all parts of the world, except in Sub-
Saharan Africa, has accelerated the growth of global markets. Reduction in tariffs and
prohibition of explicit non-tariff marketing barriers under the WTO framework has
contributed to the opening up of international markets. Economic integration of the entire
world through the removal of trade barriers, increase in capital mobility, and diffusion of
knowledge and information have significantly contributed to the process of globalization.
Even countries with state-driven marketing systems, such as CIS and China, are fast
moving towards free markets.
Thus, in the emerging marketing scenario, developing a thorough understanding of
international marketing has become not only necessary for the firms operating in
international markets but also a pre-condition of success even for operating domestically.
Recent developments in the world economy have led to the emergence of international
marketing as one of the key areas of marketing. The subject adopts a multi-disciplinary
approach, borrowings from diverse disciplines such as marketing, international trade,
international economics, international business environment, international supply chain
and logistics management, and international finance. All this has contributed to making it
a strategically important field of study.
GLOBALISATION
Globalization is defined as a process of economic integration of the entire world
through the removal of barriers to free trade and capital mobility and diffusion of
knowledge and information. It is a historical process of moving at different speeds in
different countries and in different sectors. One of the results is that firms, whose output
was previously significantly more limited by the size of their domestic market, now have
the chance to reap greater advantages from economies of scale by 'being global'. The
revolution in information and communications technology (ICT) in the last 10-15 years
has also made communication much cheaper and faster. The transaction costs of
transferring ideas and information have decreased enormously and the arrival of the
Internet has accelerated this trend. This implies that countries with advanced technologies
are best placed to innovate further. Moreover, unlike in the past when inventions and
innovations were considered breakthroughs, today they are a regular occurrence. This
implies that the transformation process is continuous and has far-reaching consequences
both for the overall organization of firms and for policy making. Global firms rely on
technological innovation to enhance their capabilities. In this sense, technology is both
driven by and is a driver of globalization and makes it possible to speak of the new
'technologically-driven character' of the global economy.
World output during 1986-95 grew at an average rate of 3.3% while the world
trade grew at 6.2% during the period. The annual average world output growth is
expected to be 3.8% during 1996-2005 as compared to the growth in world trade by 6.1%.
The economies in emerging Asia have grown at an extraordinary pace over the last three
decades. (Emerging Asia is defined here to include China, Hong Kong SAR, India,
Indonesia, Korea, Malaysia, the Philippines, Singapore, Taiwan Province of China, and
Thailand). The average annual GDP growth rate in emerging Asia was about 7% during
1970-2002 compared to an average of 3% in OECD countries. As a result, emerging
Asia's share in world GDP has increased from 9% in 1970 to 25% in 2003, compared to
21% for the US economy. An important characteristic of the rapid economic development
of emerging Asia has been the emphasis on outward-oriented growth strategies. This has
been reflected in high trade growth and a steady increase of emerging Asia's share in
global trade, which more than doubled from 8% in 1978 to 19% in 2002. Emerging Asia
accounted for 44% of world GDP growth in 2002 and for 24% of export growth in the rest
of the world. Exports are increasingly gaining significance as a locomotive of growth for
this reason. Growing importance of trade in world economy is an indication of increasing
global integration.
For arriving at a globalization index, the following key components of global
integration have been assessed.
Economic integration : trade, portfolio, foreign direct investment, and
investment income
Personal integration : telephone, travel, remittances, and personal
transfers
Technology integration : Internet users, Internet hosts, and secure
Internet services
Political integration : International organizations, UN peacekeeping,
treaties, and government transfer
The commandments of globalisation
 The market economy is indeed the only arrangement capable of generating
sustained increases in prosperity, providing the underpinnings of stable, liberal
democracies; and giving individual human beings the opportunity to seek what
they desire in life.
 Individual states remain the locus of political debate and legitimacy. Supranational
institutions must always remember that they derive their legitimacy and authority
from the states that belong to them.
 it is in the interest of both states and their citizens to participate in international
treaty based regimes and institutions that deliver global public goods.
 Such regimes do, however, need to be specific, focused, enforceable, and limited.
 There is a case for regimes covering investment and global competition, but it
would be best to create such regimes among select countries and forgo universality
thus ensuring that these regimes have reasonably high standards.
  It is in the long run interest of countries to integrate into global financial markets,
but they must do so carefully, with a full and proper understanding of the risks.
 In the absence of a global lender of last resort, it is necessary, as the IMF has been
arguing, to have a specific and explicit system to coordinate and organise
standstills and renegotiate sovereign debt.
 Though official development assistance is very far from a guarantee of successful
development, the sums now provided are so small and the resources of some
countries so inadequate that the case for increased aid is very strong. Without
expanded assistance, a large part of the world will fall ever further behind.
Economists are hopeful on the gains accruing due to specialisation based on
comparative advantage under free trade in the long run. But then, it is a matter of concern
to the Third World countries that the distribution of gains based on market strategy always
keep the poor nations at a disadvantageous position while trading with the developed
countries. For instance, while the developed countries could strengthen their control over
global agriculture by keeping their food security intact, developing countries like India are
called upon to dismantle their food security system.
In sum, as a consequence of globalisation, today in many social and economic
sectors around the world, serious gaps are growing between those who profit and others
who are subdued by global pressure to adjust. However, it is up to governments to enable
their economies to flourish. It is technology which is the main driver of globalisation.
Computing and telecommunications, accompanied by education and vocational training
offer unprecedented changes for raising living standards and for an infinitely denser
network of electronic uses for global integration.
International Trade involves flow of goods, services & capital across national
borders analysis of commercial & monetary conditions and their effect on transfer of
resources & BOP.
Importance of International Trade (IT)
• Collapse of Communism.
• China (1970’s) – Export development – Market oriented economy – massive
induction of foreign capital and technology.
• External Sector Liberalization (ESL) = Taiwan & South Korea
• Outward oriented policies = Economic growth,
Employment &
Export Performance.
• East European countries resort to ESL and outward oriented policies.
Reasons for International Trade
• Differences in comparative Cost of Production (COP) between countries
(Opportunity COP) – Haberler.
• Heckscher and Bertil Ohlin – differences in COP & IT = Variation in factor
endowments between countries and factor intensities between commodities
• It is a special case of inter – local or inter – regional trade.
• It arises as a result of the availability and non – availability of factors
• It facilitates specialisation on a larger scale.
Advantages
 • Promotes growth and enhances economic welfare
• Makes available to people goods which can’t be produced within a country.
• IT raises the level of income – nations welfare
Scope of International Trade
• Expansion in Production, ICT, transport
• Consumers preference – Income growth
• Competitors
• Lower trade barriers
• Liberalisation and the integration of trade policies with WTO’s policies
• Understanding of international marketing has become crucial.
What is trade agreement?
• Agreement usually between or among governments that encourages, regulates and
restricts elements of trade among the respective countries.
Why trade agreement exist?
• Barriers to trade generate profit opportunities.
• Not only the theory of comparative advantage -potentially profit from free trade.
• benefits nothing else than the benefits of exploiting arbitrage opportunities (price
differences).
Different trade agreements & their subject

YEAR PLACE SUBJECT COUNTRIES

1947 GENEVA TARIFFS 23

1949 ANNECY TARIFFS 13

1951 TORQUAY TARIFFS 38

1956 GENEVA TARIFFS 26

1960-61 DILLION TARIFFS 26

1964-67 KENNEDY TARIFFS & ANTIDUMPING 62

MEASURES

1973-79 TOKYO TARIFF, NON-TARIFF MEASURES 102

1986-94 URUGUAY TARIFFS, NON-TARIFF MEASURES, 123

SERVICES, IP, DISPUTE SETTLEMENT

 All member-countries did not participate in the first seven Rounds

  Up to the Tokyo Round, main focus on lowering of tariffs – hence, limited progress
made in the area of QRs and other NTBs
 Uruguay Round (1986-94) marked most comprehensive negotiations, with full
participation of all members
India has moved one place up to emerges as the world's 29th largest exporter of
goods, but jumped seven ranks to become the 17th largest importer in global trade during
2005.

Merchandise Goods Trade in Globe

Exports
Value (in $Percentage to World
Rank Country Billions) Total
1 Germany 970.7 9.34
2 USA 904.3 8.70
3 China 762.0 7.33
4 Japan 595.8 5.73
5 France 459.2 4.42
29 India 101.0 0.97
World 10393.1 100.00

Imports
Percentage to World
Rank Country Value(in $ Billions) Total
1 USA 1732.7 16.11
2 Germany 774.1 7.20
3 China 660.1 6.14
4 Japan 516.1 4.80
5 UK 501.2 4.66
17 India 140.6 1.31
World 10753.1 100.00
Source: WTO Annual Report, 2005
The country is now the world's 10th largest importer and exporter of commercial
services compared to 15th and 16th largest respectively in 2004. In services while exports
stood at $67.6 Billion, imports were marginally lower at $ 67.4 Billion. The country's
share in global services exports and imports was almost equal at 2.8% and 2.9%
respectively.

Service Sectors Trade in Globe

Exports
Value (in $ Percentage to World
Rank Country Billions) Total
1 USA 353.3 14.63
2 Germany 198.6 8.22
3 UK 183.4 7.59
4 Japan 135.9 5.63
5 France 113.7 4.71
10 India 67.6 2.80
World 2415.0 100.00

Imports
Rank Country Value in $ Billions)
1 USA 288.7 12.23
2 UK 150.1 6.36
3 Germany 142.9 6.06
4 Japan 106.6 4.52
5 France 102.9 4.36
10 India 67.4 2.86
World 2360.0 100.00
Source: WTO Annual Report, 2005
Techniques of Negotiations
 How are negotiations conducted ?
 Product-by-Product approach
 Formula approach
 Sectoral approach
 Selective product-by-product approach until the Dillon Round (1960-61)
  More comprehensive reduction formulas used in subsequent Rounds
(Kennedy 1964-67)
 Post-Uruguay Round, two significant sectoral initiatives
 Information Technology Agreement (ITA)
 Pharmaceuticals
 Negotiations may be directed towards
 Reduction of tariffs
 Binding of tariffs
 Reduction/abolition of NTBs
Doha Ministerial Declaration
The fourth ministerial conference of WTO was held in Doha, Qatar in November
2001. The ministerial declaration contained the mandate on a number of issues. As a part
of this mandate it was decided that negotiations on market access for non-agricultural
goods (NAMA) should be conducted. Paragraph 16 says,
"'We agree to negotiations which shall aim, by modalities to be agreed, to reduce or
as appropriate eliminate tariffs, including the reduction or elimination of tariff peaks, high
tariffs, and tariff escalation, as well as non tariff barriers, in particular on products of
export interest to developing countries. Product coverage shall be comprehensive and
without a priori exclusions. The negotiations shall take fully into account the special needs
and interests of developing and least developed country participants, including through
less than full reciprocity in reduction commitments. To this end, the modalities to be
agreed will include appropriate studies and capacity building measures to assist least
developed countries to participate effectively in the negotiations".
The central principle
“The negotiations shall take fully into account the special needs and interests of
developing and least-developed country participants, including through less than full
reciprocity in reduction commitments”
Proposals made by members on modalities during the Doha Round
Main issues raised
 Elimination of non agricultural tariffs
 Choice of modality or negotiating tool
 Tariff peaks, tariff escalation and high tariffs
 Coverage of bindings
 Base rates
 Implementation period and staging
 Non ad valorem tariffs
Origin of Swiss Formula
DOHA Declaration Para 16 – Market Access for Non-Agricultural Products (NAMA).
“We agree to negotiations which shall aim, by modalities to be agreed, to reduce or as
appropriate eliminate tariffs, including the reduction or elimination of tariff peaks, high
tariffs, and tariff escalation, as well as non-tariff barriers, in particular on products of
export interest to developing countries”.
Tariff
A tax or levy imposed at the (national) border on imported products. Tariff can be
imposed in two ways. First is the advalorem tariff, where the tariff rate is based on the
value of the import i.e., it is based on the price of the imported product. Second is the
specific tariff rate, where tariff rates are imposed on the basis of weight/volume or number
of items of the imported product irrespective of the price of the product.
Tariff Rate Quota
A two level tariff structure, with lower tariff applicable on in quota imports and
higher tariff applied on out of quota imports. Simply put, it refers to a trading mechanism
that provides for the application of a customs duty at a certain rate to imports of a
particular good up to a specified quantity. This method of tariffication has been criticised
for its poor administration and alleged to be discriminatory and non transparent.
Bound Tariff
Ceiling tariff or maximum tariff that can be levied on a particular imported
product. For instance, if an imported product has a bound tariff rate of 100%, the
maximum tariff can be levied on this particular product is 100%. Countries can levy tariff
rates less than or equal to 100%, but not more than 100% on this particular product.
Applied Tariff
Tariff that is actually levied on an imported product.
Water in the Tariff
The difference between bound tariff rate and applied tariff rate.
Quota Rents
The difference between the w2orld price and the import price including the out of
tariff.
Unbound tariff line
A tariff line or product for which there is no ceiling or maximum tariff rate that can
be levied. In other words, if a tariff line is unbound, the applied tariff rate can go to any
level. Under the AoA, WTO members bound tariffs on all agriculture tariff lines.
Tariffication
The process of converting the non tariff measures that existed during the Uruguay
Round of negotiations into tariffs.
Tariff Reduction Formula
This refers to different approaches or methodologies for cutting or reducing tariff
rates on different agricultural products or tariff lines.
Uruguay Round formula
This formula or approach to cut tariff rates was adopted during the Uruguay Round
of negotiations. This is a linear reduction formula, requiring an average total of 36% (24%
for developing countries) and a minimum of 15% (10% for developing countries) in each
tariff line. This formula does not lead to steep reduction in the tariff rates.
Swiss formula
 This formula aims at harmonisation of tariffs (bringing all tariffs to the same level)
between member countries of the WTO., It cuts higher tariffs more steeply than the lower
tariffs. It does not support the cause of developing countries and LDCs as most of these
countries have high tariff rates. Adopting the Swiss formula would lead to a steep
reduction in their tariff, exposing them to market volatilities.
Banded Formula
According to this formula, all tariff lines are to be divided into different bands or
categories and then each band or categories and then each band or category is to be
subjected to tariff reduction by applying the Uruguay Round formula.
Blended Formula
This formula mixes the Uruguay Round formula and the Swiss formula. According
to this formula, the tariff lines of a particular country are to be divided into three different
categories. Of the three, one category or portion would be subject to the Swiss formula,
another category or portion of tariff line would be subject to the Uruguay., round formula
and the tariff on the third category of tariff lines would be eliminated.
Tiered Formula
This approach was adopted by the WTO General Council on 1 August 2004 as a
part of the framework for establishing modalities for future negotiations. According to
this, the tariff lines are divided into different bands or categories. Bands or categories
comprising of higher tariff rates would be subjected to steeper reductions. However, the
number of bands, thresholds for each band and the extent of tariff cut in a particular band
are yet to be decided.
Tariff Escalation
Increase in tariffs with the degree of processing of a given commodity. For
instance, Canada has a tariff rate of 8.5% on raw sugar. However, the tariff rate escalates
to 107% for refined sugar.
NON-AGRICULTURAL MARKET ACCESS (NAMA)
NAMA includes
All the products that are not included under AOA
 Manufacturing products
 Fuels and mining products
 Fish and fish products
 Forestry products
Sometimes referred to as industrial products or manufactured goods
Accounted for almost 90% of the world merchandise exports
 NAMA is one of the important agenda of multi trade negotiations
 Encompasses both the tariff and non tariff barriers
 During the negotiations NGMA given number of suggestion on modalities
 Deadline was fixed on 31st May 2003 but missed on account of disagreements and
 The decision would be crucial for breaking the logjam that has been created in the
Doha round following the collapse of the fifth (Cancun), sixth ministerial
 conference (Hong Kong) and Mini Ministerial conference June 29 - July 01, 2006
talks.
Issues:
Tariff peaks (Above average levels)
Tariff escalation (escalating tariffs “lock in” low value-added production)
High tariffs (Targeting Developing Countries Africa/South Asia)
S & D (“less than full reciprocity”)
Non-tariff barriers (TBT)
July Framework on NAMA
 Framework contains initial elements for future work on modalities - additional
negotiations required for agreement on specifics
 Tariff reduction through a non-linear formula applied on a line-by-line basis
 “Less than full reciprocity” for developing countries in tariff reduction
commitments
 Tariff reductions or elimination from “bound rates”
 Flexibility for developing countries (paragraph 8)
 Sectoral initiatives may complement the formula cuts
 Guidelines provided for addressing NTBs
Hong Kong Developments
 USA suggested a simple Swiss formula with two coefficients “within sight of each
other”
 USA offered higher coefficient for developing countries as an alternative to
paragraph 8 flexibilities
 USA also proposed sectoral negotiations based on a “critical mass”
 ABI suggested ‘Swiss Type’ formula based on national average bound duty
 Caribbean countries tabled a development oriented tariff reduction formula with an
additional parameter of “credits”
 APEC endorsement (early June 2005) + Dalian Mini Ministerial (July 2005)
ègrowing support for Simple Swiss formula with dual coefficients
 Pakistan proposal : compromise formula with two coefficients – 6 for developed
and 30 for developing members
 EU proposal put forward the option of higher coefficient for developing countries
through less use of paragraph 8 flexibilities
 On 28 October 2005, EU sought cuts in applied duties of developed and more
competitive developing countries
 EU advocated simple Swiss formula with coefficient B=10 for developed members
 For advanced developing countries, EU proposed same coefficient along with
flexibilities – tariff cap of 15%
 Reaffirmed commitment to Doha Mandate and elements of the July Framework
  Adopted Swiss formula with (multiple ??) coefficients – ABI formula still on table
 Provided for reduction/elimination of tariff peaks and tariff escalation
 Retained “less than full reciprocity”
 Paragraph 8 flexibilities reiterated upfront
 Sectoral initiatives made non-mandatory
 Resolve to set up modalities by 30 April 2006 - MISSED
NAMA Negotiations In Hong Kong
 It is unambiguous that high co-efficient is needed to protect local industries, but
given the current negotiation tactics employed by rich countries, it would be very
difficult for many developing countries to negotiate in their interests.
 Forcing poor countries to liberalise through trade agreements is the wrong
approach to achieving growth and poverty reduction in Africa, and elsewhere.”
 Adoption of Swiss Formula
to reduce or eliminate tariff peaks
special needs and interest of developing countries
simple Swiss formula and ABI formula
 Non linear markup approach to establish base rate for commencing tariff
reductions
 Non mandatory nature of participation - sectorial approach
 Progress in Identification, categorization and examination of Non Tariff Barriers
Horizontal - export taxes, restrictions, remanufactured goods
Vertical - automobiles, electronic goods, textiles, clothing footwear
and bilateral approaches to NTBs
Tariffs: Solution
• Reduce all tariffs using a Swiss 25 formula approach over a 5-year period.
– Ensures no tariff greater than 25 percent and results in similar tariff levels
across all products and countries
– Reduces high tariffs more than low tariffs
Two types of formula can be used in negotiations.
• The first is one that reduces the applicable tariff rates by the same percentage,
regardless of the initial tariff rate. These are called tariff independent formulae.
• The second type of formula is called tariff dependent, since the percentage
reduction in tariff rates depends on the initial tariff rate subject to negotiations.
• It includes the harmonisation formulae which have the effect of reducing the
dispersion of the applicable tariff rates.
Tariff Independent Formulae
The defining feature of independent formulae is that they are not dependent, in any
way, on the initial tariff rate.
• What is important is simply the rate of reduction.
 • For example, the most commonly cited independent formula is the one used for
the Kennedy Round where “an across the board cut of 50 per cent would be used
as a working hypothesis for the determination of the general rate of linear
reduction”.
• Assume that the initial tariff rate prior to negotiations is given by t0 and the final
tariff rate resulting from the negotiations is t1. The expression which relates the
two tariff rates, where c is a constant parameter, would be:
t1 = c x t0
• The final tariff rate would necessarily depend upon both the parameter c and the
initial tariff rate. The rate of reduction (R = 1 - c) is independent of the tariff rate
depending only on the parameter c. The original tariff rate is not a determinant of
the rate of reduction. All tariff rates will be reduced by the same percentage.
Tariff Dependent Formulae
• In contrast to the Tariff Independent Formula, where the rate of reduction is
independent of the initial tariff rate, there is a whole class of formulae that are a
function of the initial tariff.
• The basic element of these formulae is that they aim to have higher reductions for
higher tariff rates. Hence, they are commonly called ‘harmonising’ formulae, since
the overall dispersion of the tariff profile is reduced.
• Tariff dependent formulae can be linear, or non-linear.
• It should be noted that during the Tokyo Round, Switzerland proposed a specific
functional form of the non-linear formula. This formula is now commonly known
as the Swiss formula. It is explained below.
Linear reduction formulae
• An example of a basic linear formula is a generalization of the tariff independent
formula by adding an intercept:
• Linear formulae that are tariff dependent and harmonising can be used in ‘tariff
band’ approaches which propose different linear cuts for different ranges or
intervals of the tariff profile.
Non linear reduction formulae
• There are any number of non-linear formulae imaginable, however, in practical
terms only one type of formula, the so called Swiss formula, has been used so far
in tariff negotiations. It was initially proposed during the Tokyo Round and
adopted by some developed countries. The specification of the formula is as
follows, where a is simply a coefficient:
• The formula has the property of being a function of both the initial tariff and the
coefficient a. The coefficient can be negotiated.

THE SWISS FORMULA ADOPTION IN HONG KONG

• Formally adopted by WTO through Para 14 of Hong Kong Ministerial Declaration:
• “We adopt a Swiss Formula with coefficients at levels which shall inter alia:
• Reduce or as appropriate eliminate tariffs, including the reduction or elimination of
tariff peaks, high tariffs and tariffs escalation, in particular on products of export
 interest to developing countries; and Take fully into account the special needs and
interests of developing countries, including less than full reciprocity in reduction
commitments.”
• The Negotiating Group was instructed to finalise the Formula’s structure and
details “as soon as possible”.
• Paragraph 6 to 16 of Annex B – HKM – Contains details of the Formula as
proposed by Chairman of the Negotiating Group.
• Meaning: Those members of the WTO which or who have higher tariffs will face
greater reduction while those maintaining lower tariffs will face lower reduction.

What Ministers agreed is the general principle; the actual coefficients which will
determine the reduction levels were not agreed upon and this is what was deferred and
referred to the Negotiating Group.
What Ministers agreed, however, is “to establish modalities no later than 30th April
2006 and to submit comprehensive draft schedules based on these modalities no later than
31st July 2006”. (Para. 23, HKM).
Tariff formulas I
• Uruguay round formula: Linear tariff cut; in average cut -36%, each single tariff
line by at least -15%
• If applied on a line-by-line basis: progressive
• No special attention to tariff peaks
• Swiss formula: A-coefficient: upper limit to all tariffs
• Strong reduction of all tariff peaks
• WTO draft paper (Harbinson): Different cuts according to tariff bands in
the range -40% to -60%
• Progressive reduction of tariff peaks
• Flexibility in the composition of the average tariff reduction

ABI Formula Caribbean Formula

T1= {(B x X) x T / {(B x X) x T T1= {(B+C) x X} x T / {(B+C) x X} + T

T= Initial Tariff Rate

B = Coefficient
X = Average Tariff Rate of the country
C= Credit to be accorded to a developing country
T1= Final Tariff Rate
Tariff formulas II
• Modified Swiss (proposal by Francois et al. 2005):
• B-coefficient incorporates more flexibility
• Konandreas (2003) proposal (“Panoply”): Reduction in tariff level and tariff
dispersion
• Formula depends on tariff average and standard deviation of tariff profile
• Drawbacks in the case of very dispersed tariff profiles, as some small tariffs
might be increased
Swiss formula implications for India
Assuming India's average bound rate to be 30% the following table shows the
impact of different coefficients on India's tariff reduction.

Coefficient Final average Comments

bound rate
30 15% May only remove tariff water
20 12% Minor reduction in applied rates
 10 8% Significant reduction in applied
rates
Conclusion
Maintaining a basic balance/equilibrium, between open and expanding markets;
and needs and requirements of domestic economic policy: making domestic industries
more competitive; protecting environment and consumers; operating an efficient economy;
contribute to economic development and growth.
The irresistible conclusion is that globalisation can bring about more productivity,
more employment and high income among the poor if its benefits percolate downwards to
the poor sections of the society. To counter the ill effects of globalisation, competitiveness
and productivity have to be increased. For this, good governance is essential as it is within
the power of governments to slow down or even to turn back the tide of globalisation. Let
us all participate in improving the world economic system as it has reshaped itself in the
wake of liberalisation and globalisation the world over.

References
Anonymous, 2005. FOCUS WTO 7(4): 1-50.
Anonymous, 2005. WTO Annual Report.
Bhagirath Lal Das, 2005. Bumpy Road to Hong Kong Economic of Political weekly
40(42): 4499 - 4501.
Christine Earaim - Zadeh, 2005, Why Globalisation Works. Southern Economist 43(17):
27-28.
Mehta, R. and Pooja Agarwal, 2004. Non-Agriculture Market Access Negotiations Post -
Cancum issues and Implications for Industrial Tariffs Economic of Political weekly
39( ): 3378-3386.
Prabhash Ranjan, 2006. Choosing the appropriate Tariff Reduction Formula in NAMA
Economic and Political Weekly 41(6): 1507-1510.
Susheela Subrabamanya, 2005. Globalisation - is it an unmixed Blessing ?
Yilmaz Akyuz, 2005. WTO Negotiations an Industrial Tariffs what is at state for
developing countries ? Economic and Political weekly 40(46): 4827-4836.
www.seaofindia.com
www.commodityindia.com
dgft.delhi.nic.in
www.economictimes.com
www.agri.tn.gov.in
www.wto.org
 Domain name
The term domain name has multiple related meanings:

 A name that identifies a computer or computers on the internet. These

names appear as a component of a Web site's URL, e.g. wikipedia.org. This
type of domain name is also called a hostname.
 The product that domain name registrars provide to their customers. These
names are often called registered domain names.
 Names used for other purposes in the Domain Name System (DNS), for
example the special name which follows the @ sign in an email address, or
the Top-level domain names like .com, or the names used by the Session
Initiation Protocol (VoIP), or DomainKeys.
 They are sometimes colloquially (and incorrectly) referred to by marketers
as "web addresses".

This article will primarily discuss registered domain names. See the Domain Name
System article for technical discussions about general domain names and the hostname
article for further information about the most common type of domain name.

Overview

The most common types of domain names are hostnames that provide more memorable
names to stand in for numeric IP addresses. They allow for any service to move to a
different location in the topology of the Internet (or an intranet), which would then have a
different IP address.

By allowing the use of unique alphabetical addresses instead of numeric ones, domain
names allow Internet users to more easily find and communicate with web sites and other
server-based services. The flexibility of the domain name system allows multiple IP
addresses to be assigned to a single domain name, or multiple domain names to be
assigned to a single IP address. This means that one server may have multiple roles (such
as hosting multiple independent Web sites), or that one role can be spread among many
servers. One IP address can also be assigned to several servers, as used in anycast and
hijacked IP space.

Hostnames are restricted to the ASCII letters "a" through "z" (case-insensitive), the digits
"0" through "9", and the hyphen, with some other restrictions. Registrars restrict the
domains to valid hostnames, since, otherwise, they would be useless. The Internationalized
domain name (IDN) system has been developed to bypass the restrictions on character
allowances in hostnames, making it easier for users of non-English alphabets to use the
Internet. The underscore character is frequently used to ensure that a domain name is not
recognized as a hostname, for example with the use of SRV records, although some older
systems, such as NetBIOS did allow it. Due to confusion and other reasons, domain names
with underscores in them are sometimes used where hostnames are required.
Examples

The following example illustrates the difference between a URL (Uniform Resource
Locator) and a domain name:

URL: http://www.example.net/index.html
Domain name: www.example.net
Registered domain name: example.net

As a general rule, the IP address and the server name are interchangeable. For most
Internet services, the server will not have any way to know which was used. However, the
explosion of interest in the Web means that there are far more Web sites than servers. To
accommodate this, the hypertext transfer protocol (HTTP) specifies that the client tells the
server which name is being used. This way, one server with one IP address can provide
different sites for different domain names. This feature goes under the name virtual
hosting and is commonly used by Web hosts.

For example, as referenced in RFC 2606 (Reserved Top Level DNS Names), the server at
IP address 192.0.34.166 handles all of the following sites:

example.com
www.example.com
example.net
www.example.net
example.org
www.example.org

When a request is made, the data corresponding to the hostname requested is served to the
user.

Top-level domains

Every domain name ends in a top-level domain (TLD) name, which is always either one of
a small list of generic names (three or more characters), or a two-character territory code
based on ISO-3166 (there are few exceptions and new codes are integrated case by case).
Top-level domains are sometimes also called first-level domains.

Other-level domains

In addition to the top-level domains, there are second-level domain (SLD) names. These
are the names directly to the left of .com, .net, and the other top-level domains. As an
example, in the domain en.wikipedia.org, "wikipedia" is the second-level domain.

On the next level are third-level domains. These domains are immediately to the left of a
second-level domain. In the en.wikipedia.org example, "en" is a third-level domain. There
can be fourth and fifth level domains and so on, with virtually no limitation. An example
of a working domain with five levels is www.sos.state.oh.us. Each level is separated by a
dot or period symbol between them.
Domains of third or higher level are also known as subdomains, though this term
technically applies to a domain of any level, since even a top-level domain is a
"subdomain" of the "root" domain (a "zeroth-level" domain that is designated by a dot
alone).

Traditionally, the second level domain has been chosen based on the name of a company
(i.e. microsoft.com). The third level was commonly used to designate a particular host
server. Therefore, ftp.wikipedia.org might be an FTP server, www.wikipedia.org would be
a World Wide Web Server, and mail.wikipedia.org could be an email server. Modern
technology now allows multiple servers to serve a single subdomain, or multiple protocols
or domains to be served by a single computer. Therefore, subdomains may or may not
have any real purpose.

Official assignment

ICANN (Internet Corporation for Assigned Names and Numbers) has overall
responsibility for managing the DNS. It controls the root domain, delegating control over
each top-level domain to a domain name registry. For ccTLDs, the domain registry is
typically controlled by the government of that country. ICANN has a consultation role in
these domain registries but is in no position to regulate the terms and conditions of how a
domain name is allocated or who allocates it in each of these country level domain
registries. On the other hand, generic top-level domains (gTLDs) are governed directly
under ICANN which means all terms and conditions are defined by ICANN with the
cooperation of the gTLD registries.

Domain names which are theoretically leased can be considered in the same way as real
estate, due to a significant impact on online brand building, advertising, search engine
optimization, etc.

A few companies have offered low-cost, below-cost or even free domain registrations,
with a variety of models adopted to recoup the costs to the provider. These usually require
that domains are hosted on their site in a framework or portal, with advertising wrapped
around the user's content, revenue from which allows the provider to recoup the costs.
When the DNS was new, domain registrations were free. A domain owner can generally
give away or sell infinite subdomains of their domain, e.g. the owner of example.edu
could provide domains that are subdomains, such as foo.example.edu and
foo.bar.example.edu.

Uses and abuses

As domain names became attractive to marketers, rather than just the technical audience
for which they were originally intended, they began to be used in manners that in many
cases did not fit in their intended structure. As originally planned, the structure of domain
names followed a strict hierarchy in which the top level domain indicated the type of
organization (commercial, governmental, etc.), and addresses would be nested down to
third, fourth, or further levels to express complex structures, where, for instance, branches,
departments, and subsidiaries of a parent organization would have addresses which were
subdomains of the parent domain. Also, hostnames were intended to correspond to actual
physical machines on the network, generally with only one name per machine.
However, once the World Wide Web became popular, site operators frequently wished to
have memorable addresses, regardless of whether they fit properly in the structure; thus,
since the .com domain was the most popular and memorable, even noncommercial sites
would often get addresses under it, and sites of all sorts wished to have second-level
domain registrations even if they were parts of a larger entity where a logical subdomain
would have made sense (e.g., abcnews.com instead of news.abc.com). A Web site found
at http://www.example.org/ will often be advertised without the "http://", and in most cases
can be reached by just entering "example.org" into a Web browser. In the case of a .com,
the Web site can sometimes be reached by just entering "example" (depending on browser
versions and configuration settings, which vary in how they interpret incomplete
addresses).

The popularity of domain names also led to uses which were regarded as abusive by
established companies with trademark rights; this was known as cybersquatting, in which
somebody took a name that resembled a trademark in order to profit from traffic to that
address. To combat this, various laws and policies were enacted to allow abusive
registrations to be forcibly transferred, but these were sometimes themselves abused by
overzealous companies committing reverse domain hijacking against domain users who
had legitimate grounds to hold their names, such as their being generic words as well as
trademarks in a particular context, or their use in the context of fan or protest sites with
free speech rights of their own.

Laws that specifically address domain name conflicts include the Anticybersquatting
Consumer Protection Act in the United States and the Trademarks Act, 1999, in India.
Alternatively, domain registrants are bound by contract under the UDRP to comply with
mandatory arbitration proceedings should someone challenge their ownership of the
domain name.

Generic domain names- problems arising out of unregulated

name selection

Within a particular top-level domain, parties are generally free to select an unallocated
domain name as their own on a first come, first served basis, resulting in Harris's lament,
all the good ones are taken. For generic or commonly used names, this may sometimes
lead to the use of a domain name which is inaccurate or misleading. This problem can be
seen with regard to the ownership or control of domain names for a generic product or
service.

By way of illustration, there has been tremendous growth in the number and size of
literary festivals around the world in recent years. In this context, currently a generic
domain name such as literary.org is available to the first literary festival organisation
which is able to obtain registration, even if the festival in question is very young or
obscure. Some critics would argue that there is greater amenity in reserving such domain
names for the use of, for example, a regional or umbrella grouping of festivals. Related
issues may also arise in relation to non-commercial domain names.

Unconventional domain names

Due to the rarity of one-word dot-com domain names, many unconventional domain
names, domain hacks, have been gaining popularity. They make use of the top-level
domain as an integral part of the Web site's title. Two popular domain hack Web sites are
del.icio.us and blo.gs, which spell out "delicious" and "blogs", respectively.

Unconventional domain names are also used to create unconventional email addresses.
Non-working examples that spell 'James' are j@m.es and j@mes.com, which use the
domain names m.es (of Spain's .es) and mes.com, respectively.

Premium domain names

Premium domain names are often valuable, and have particular characterizations: The
names are short and memorable, may contain words that are regularly searched on search
engines or keywords that help the name gain a higher ranking on search engines. They
may contain generic words, so the word has more than one meaning, and they may contain
common typos.

Commercial resale of domain names

An economic effect of the widespread usage of domain names has been the resale market
(after-market) for generic domain names that has sprung up in the last decade. Certain
domains, especially those related to business, gambling, pornography, and other
commercially lucrative fields of digital world trade have become very much in demand to
corporations and entrepreneurs due to their importance in attracting clients.

The most expensive public sale of an Internet domain name to date, according to
DNJournal, is porn.com which was sold in 2007 for $9.5 million cash.

There are disputes about the high values of domain names claimed and the actual cash
prices of many sales such Business.com. Another high-priced domain name, sex.com, was
stolen from its rightful owner by means of a forged transfer instruction via fax. During the
height of the dot-com era, the domain was earning millions of dollars per month in
advertising revenue from the large influx of visitors that arrived daily. The sex.com sale
may have never been final as the domain is still with the previous owner. Also, that sale
was not just a domain but an income stream, a web site, a domain name with customers
and advertisers, etc. Two long-running U.S. lawsuits resulted, one against the thief and one
against the domain registrar VeriSign [1]. In one of the cases, Kremen v. Network
Solutions, the court found in favor of the plaintiff, leading to an unprecedented ruling that
classified domain names as property, granting them the same legal protections. In 1999,
Microsoft traded the name Bob.com with internet entrepreneur Bob Kerstein for the name
Windows2000.com which was the name of their new operating system. [2]

One of the reasons for the value of domain names is that even without advertising or
marketing, they attract clients seeking services and products who simply type in the
generic name. This is known as Direct Navigation or Type-in Traffic. Furthermore, generic
domain names such as movies.com (now owned by Disney) or Books.com (now owned by
Barnes & Noble) are extremely easy for potential customers to remember, increasing the
probability that they become repeat customers or regular clients. In the case of
Movies.com, Disney has built a stand-alone portal featuring branded content. More and
more large brands are beginning to employ a more comprehensive domain strategy
featuring a portfolio of thousands of domains, rather than just one or two.
Although the current domain market is nowhere as strong as it was during the dot-com
heyday, it remains strong and is currently experiencing solid growth again. [3] Annually
tens of millions of dollars change hands due to the resale of domains. Large numbers of
registered domain names lapse and are deleted each year. On average 25,000 domain
names drop (are deleted) every day.

It is very important to remember that a domain (name, address) must be valued separately
from the website (content, revenue) that it is used for. The high prices have usually been
paid for the revenue that was generated from the website at the domain's address (url.).
The intrinsic value of a domain is the registration fee. There is no such a thing as a current
market value for a domain, it just takes what somebody pays. The Fair Market Value of a
domain can be anything from the registration fee, the lowest known past selling price, the
highest known past selling, price, the most recent selling price, or just any past selling
price. These (or any sum resp. division etc.) are usually added to the current or expected
revenue from the web content (advertising, sales, etc.). The price of a domain (name +
ext.) should not be confused with that of a website (content + revenue). An estimate by an
appraiser is always the addition of what they would like a domain to be worth together
with the effective/expected/desired revenue from the web content. Some people put value
on the length of the SLD (name) and other people prefer description capability, but the
shorter a SLD is, the less descriptive it can be. Also, if short is crucial, then the TLD
(extension) should be short too. It is less realistic to get a domain like LL.travel or
LL.mobi than a domain travel.LL or mobi.LL. This illustrates the relativity of domain
value estimation. It can be safely put that the revenue of web (content) can be easily
stated, but that the value of a domain (SLD.TLD aka name.ext) is a matter of opinion and
preference. In the end, however, any sale depends on the expectations of the domain seller
and the domain buyer.

People who buy and sell domain names are known as domainers. People who sell value
estimation services are known as appraisers.

According to Guinness World Records and MSNBC, the most expensive domain name
sales on record as of 2004 were: Business.com for $7.5 million in December 1999,
AsSeenOnTv.com for $5.1 million in January 2000, Altavista.com for $3.3 million in
August 1998, Wine.com for $2.9 million in September 1999, CreditCards.com for $2.75
million in July 2004, and Autos.com for $2.2 million in December 1999. [4]

Domain name confusion

Intercapping is often used to clarify a domain name. However, DNS is case-insensitive,

and some names may be misinterpreted when converted to lowercase. For example: Who
Represents, a database of artists and agents, chose whorepresents.com; a therapists'
network thought therapistfinder.com looked good; and another website operating as of
August 2007, is penisland.net a website for Pen Island, a site that claims to be an online
pen vendor, but exists primarily as a joke, as it has no products for sale. Other examples
include cummingfirst.com, website of the Cumming First United Church in Cumming,
GA and powergenitalia.com, a website for an Italian Power Generator company. In such
situations, the proper wording can be clarified by use of hyphens. For instance, Experts
Exchange, the programmers' site, for a long time used expertsexchange.com, but
ultimately changed the name to experts-exchange.com.
Leo Stoller threatened to sue the owners of StealThisEmail.com on the basis that, when
read as stealthisemail.com, it infringed on claimed trademark rights to the word
"stealth". [5]. It's interesting to know that there's no word mark for "stealth" in the USPTO
trademark database and Leo Stoller's trademarks on this term are now canceled.

Human Resource Management for Intellectual

Property Rights (IPRS) Issues
Dr. D. M.Chandargi
Professor & Head, Department of Agril. Extension Education, AC, B’gudi, UAS, Dharwad
The concept of Human Resource Development in Agriculture sector remained far off for a
considerable period, compared with industrial and service sector. During first four decades after
independence, the focus of Indian Agriculture remained on production and productivity of food
grains to meet the growing demands due to continuous growth in population. The extension
approach and methodology followed in agriculture sector during last fifty years remained in line to
support more production with required pace and changing focus. It can be marked as extensive,
intensive, research based and finally through training and visit (T & V) system. Human resource
development has been achieved through these extension efforts made by State departments of
Agriculture supported by SAUs and ICAR institutes

Now, there is need for Human Resource Development of stakeholders involved in

production processing and marketing in the changing scenario from subsistence to commercial
agriculture and new dispensation of GATT/WTO agreement. The agriculture is now seen as profit
oriented enterprise and many new cash crops of commercial value are taken up by the farmers.
Under this new situation, key factor for success will largely depend upon development of farmer’s
capacity to absorb new knowledge of improved practices and technology. They need to be self-
reliant agri-preneurs. Also, there is need to build capacity of extension personnel, NGOs, export
farmers for a collaborative arrangement. To develop the farmers, specially small and marginal
farmers as agri-preneurs and making farming a profitable enterprise, the state sponsored extension
machinery will have to take lead with completely changed focus and attitude towards their roles
and responsibilities. In addition to these, there is urgent need to create awareness among the
stakeholders, especially the creators of new knowledge and the farm producers, the concept of
IPRs. A new agenda for Human Resource Development for agricultural extension personnel and
other stake holders in terms of required competencies in knowledge & skills such as technical,
organisational, managerial and communication and genetic resource protection acts required in
order to meet challenges of new millennium.

People are the most valuable resource of any country. Many countries like Japan, South
Korea, Singapore, Hong Kong have limited natural resources, but developed their economy
through planned approach for human resources. The global competitiveness report 1998 ranks
smaller countries in size like Singapore and Hong Kong at I & II positions respectively, ahead of
leading industrialised countries like U.S.A., U.K., Canada etc., in terms of economies based on
(1)
analysis of their competitive strengths & weaknesses . In western countries and industrial world
recognition of human contribution through scientific and engineering innovations has propagated a
new concept called Human Resource Development. From the beginning of 19 th century, social and
behavioural scientists in US and Europian countries have been conducting various experiments
regarding impact of human behavior on industrial productivity. As a sequel to these developments
all over the world, efforts for Human Resource Development for achieving higher & better results
were initiated during sixties in India. Long back, former Governor of Reserve Bank, Shri L.K.Jha
while addressing convocation in Ahmedabad observed that prosperity was a man made
phenomenon, i.e. the prosperity of an organisation or even the country is solely related with its
manpower.

The United Nations Development project (UNDP) defines Human Resource Development
(HRD) as the process of enlarging the range of people’s choices increasing their opportunities for
education, health care, income & employment and covering the full range of human choices from a
sound physical environment to economic and political freedom. HRD aims at development of the
people, for the people and by the people

The concept of HRD relates to make work culture more conductive to organisational goal
and emphasis over development, up gradation and refinement of total personality of individual.

The world’s poorest nations as a group account for 96 per cent of the world’s genetic resources. “It
is partly the uneven distribution of genetic resources and global food production that has led to
international debate over the control of genetic resources. The fact that the so-called gene-poor
countries have been able to dominate the world food production underscores the limitations in
reducing agricultural production to the global distribution of genetic resources. In addition to these
resources, success in agricultural production depends largely on the technological and scientific
capability to enhance production using the available genetic resources, which the GOI is making
efforts to tune the research with production needs keeping global economy in mind.
Plant genetic resources are essential to a sustainable agriculture and biosecurity. FAO
estimates humans have used some 10 000 species for food throughout history. However, only
about 120 cultivated species provide around 90 per cent of food requirements and 4 species
(maize, wheat, rice and potatoes) provide about 60 per cent of human dietary energy for the
world’s population. Of the myriad of varieties of these crops developed by farmers over millennia,
which form an important part of agricultural biodiversity, more than 75 per cent have been lost in
the past 100 years. In view of the rapid advances in transport and trade, awareness of biological
diversity/ environmental issues and technological progress, improved national and international
frameworks and standards are required to regulate, manage and control biosecurity of food and
agriculture (including forestry and fisheries). Biosecurity has direct relevance to food safety,
conservation of the environment (including biodiversity), and sustainability of agriculture.
Governments should consider formulating internationally compatible laws, standards and
practices regarding plant materials and data such that crop protection and insecurity as well as the
ethical handling of biological materials and data from plants can be guaranteed.
What is Intellectual property Rights (IPR)
 IPRs can be defined as a set of laws devised for the purpose of protecting or rewarding
inventors or creators of new knowledge. Precisely because knowledge, unlike consumable goods,
can be shared by any number of persons without being diminished, creators are dependent on legal
protection to prevent direct copying or the utilization of the product or process they have invented
without the payment of compensation. IPRs are thus intended to confer exclusive rights for
inventors or discoverers, for a fixed period of time.
IPR and Developing countries:
Whether IPRs could play a role in helping the world meet the targets of crop biosecurity in
particular by reducing poverty, helping combat crop diseases, enhancing access to crop
biodiversity, contributing to sustainable development and in identifying and removing obstacles in
meeting those targets. Some argue rather strongly that IPRs are necessary to stimulate economic
growth, which, in turn , contributes to poverty reduction through crop biosecurity, Stimulating
invention and new technologies leads to increases in agricultural or industrial production. Hence
these proponents of IPRs are of the view that there is no reason why a system that works for
developed countries could not do the same for developing countries. Others argue with equal
vehemence that IPRs rights do little
To stimulate invention and research in developing countries since the necessary human
and technical capacity may be absent; and moreover the poor will not be able to afford the
products, even if developed. IPRs limit the option of technological learning through imitation,
allow foreign firms to drive out domestic competition by obtaining patent protection, and to
service the market through imports rather than through domestic manufacture.
Why HRM in IPR issues
Developing countries are not a homogeneous group, a self-evident fact that is often
forgotten. Not only do their scientific and technical capacities vary, but so also their social and
economic structures, and their inequalities of income and wealth. The determinants of poverty, and
therefore the appropriate policies to address it, will vary accordingly between countries.
Forms of IPRs
 Patents
 International Convention for the protection of New varieties of plants
Plant Breeders’ Rights (PBRs, or Plant Variety Protection (PVP)
 Geographical indications (GIs)
 Trade Secrets
 Database Protection
IP is a means, not an end in itself. The one-size-fits-all approach is widely rejected, yet
efforts continue by some transnational corporations and developed countries to have one set of
global rules enforced by a global system. Equitable sharing of the benefits arising from the
utilization of plant genetic resources.
The general objectives of the TRIPs Agreement are the protection and enforcement of
IPRs, the promotion of technological innovation, and the transfer and dissemination of
technology. Objectives of the TRIP’s convention : The broad objectives of the convention are
the conservation of the biodiversity, the sustainable use of the components of genetic resources
like crops forest plants and animals and the fair and equitable sharing of the benefits arising
out of the utilization of generic resources. TRIPs do not recognize community intellectual
rights or collective intellectual rights.
Some of the HRD initiatives by international organisational and treaties in IPRs are:
1. The Food and Agriculture Organization ( FAO) commitments for Crop Biosecurity.
2. 2. Convention on Biological Diversity (CBD) United Nations, Environmental
programme (UNEP)
3. 3. International Treaty on Plant Genetic Resources for Food and Agriculture: This treaty,
which entered into force on 29 June 2004, focuses on agricultural genetic resources access to
and sharing of the benefits derived from them. Preserving the genetic resources developed by
poor farmers and maintaining access to agricultural genetic resources for international public
research. All Technical and legal assistance and support for capacity building in these areas are
also required to facilitate national policy development.
Strengthening of scientific capacity of the developing countries. Access to technological
developments such as biotechnology and collaboration with public or private sector institutions in
other countries, such as the US, Europe or Japan, require an understanding of and the capacity to
manage intellectual property in order to encourage in vestment and ensure benefit sharing through
cooperative agreements.
The human resource management strategies should consider the following challenges of
Crop Biosecurity to the Developing Countries: Legal reforms on the subject of crop Biosecurity
should address issues concerning access to genetic resources associated with knowledge by foreign
individuals, institutions and equitable sharing of benefits arising out of these resources and
knowledge between the host countries and the local people.
In several countries, different types of incentives such as tax incentives, credit support,
screening or testing services are being offered to private firms either to stimulate public/private
sector collaboration in research, or to stimulate the creation of local firms for the development of
new technologies contributing towards crop biosecurity.

Role of Public Sector in IPR: Most of the biotech research, at whatever level, is being undertaken
in the public sector of the developing countries. For any public/private partnership, the private
sector from the developed world has to be involved. This is all the more true in cases where cells,
organelles, genes or molecular constructs are under patent with some of the big multinational
biotech companies.
Thus, the human resource management for IPRs issues should stress for strong evidence
of convergence, improved cooperation and integration of services and functions amongst the food
safety, plant, animal, life, health and environmental sectors to achieve better regulation of
biosecurity. Forces driving this change are increasing international agricultural trade and travel,
biotechnological and information technology advances within a multicultural approach based on
cross- cutting concepts for crop biosecurity.
References
Bhatia, A.S. and Bhatia G.K., “ Human Resource Development, India in Global context”, source –
Kumar, P. and Singh, B. (Eds). 1995, current trends in HRD, Deep and Deep publication.
New Delhi.
Utkarsh, G., Gadgil, M and Sheshagiri Rao, P.R, 1999, Intellectual property rights on
biological resources: Benefiting from bio diversity and people’s knowledge.
Current Science, 77 (11) : 1418-25
 Related rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights".
The term neighbouring rights is exactly equivalent, and a more literal translation of the
original French droits voisins.[1] Related rights in civil law are rights which are similar to
authors' right but which are not connected with the actual author of the work. Both authors'
rights and related rights are copyrights in the sense of English or U.S. law.

There is no single definition of related rights, which vary much more widely in scope
between different countries than authors' rights. The rights of performers, phonogram
producers and broadcasting organisations are certainly covered, and are internationally
protected by the Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organisations[2] signed in 1961. Within the European
Union, the rights of film producers (as opposed to directors) and database creators are also
protected by related rights, and the term is sometimes extended to include the sui generis
rights in semiconductor topologies and other industrial design rights. A practical definition
is that related rights are copyright-type rights which are not covered by the Berne
Convention.[3]

International protection of related rights

Apart from the Rome convention, there are a number of other treaties which address the
question of the protection of related rights:

 Convention for the Protection of Producers of Phonograms Against

Unauthorized Duplication of Their Phonograms[4] (Geneva Phonograms
Convention, 1971)
 Convention Relating to the Distribution of Programme–Carrying Signals
Transmitted by Satellite[5] (Brussels Convention, 1974)
 Treaty on Intellectual Property in Respect of Integrated Circuits [6] (IPIC
Treaty, 1989)
 Agreement on Trade-Related Aspects of Intellectual Property Rights [7]
(TRIPS, 1994)
 WIPO Performers and Phonograms Treaty[8] (WPPT, 1996)

Aparts from the TRIPS Agreement, these treaties cannot truly be described as global: the
Rome Convention had 83 signatories as of 2006, compared with 162 for the Berne
Convention.[9]

Relation to authors' rights

Related rights are independent of any authors' rights which might also exist in the work, as
is made clear in the various treaties (Art. 1 Rome; Art. 7.1 Geneva; Art. 1.2 WPPT). Hence
a CD recording of a song will be concurrently protected by four different copyright-type
rights:

 the authors' rights of the composer of the music;

 the authors' rights of the lyricist;
 the performers' rights of the singer and the musicians;
  the producers' rights of the person or corporation which made the
recording.

Performers

The protection of performers is perhaps the strongest and most unified of the related
rights. It is not difficult to accept that a performer (musician, actor, etc.) has an intellectual
input in their performance over and above that of the author of the work: as such, many
countries grant moral rights to performers as well as the economic rights which are
covered by the Rome Convention (Arts. 7–9), and the rights of paternity and integrity are
required by the WPPT (Art. 5). Performers' rights should not be confused with performing
rights, which are the royalties which are due to the composer of a piece of music which is
under copyright in return for the licence (permission) to perform the piece in public: in
other words, performers must pay performing rights to composers. Under the Rome
Convention (Art. 7), performers have the right to prevent:

 the broadcast or communication to the public of their performance, unless

this is made from a legally published recording of the performance;
 the fixation (recording) of their performance;
 the reproduction of a recording of their performance.

The WPPT extends these rights to include the right to licence:

 the distribution of recordings of their performance, for sale or other transfer

of ownership (Art. 8);
 the rental of recordings of their performances, unless there is a compulsory
licence scheme in operation (Art. 9);
 the "making available to the public" of their performances (Art. 10), in
effect their publication on the internet.

Article 14 of the Rome Convention set a minimum term for the protection of performers'
rights of twenty years from the end of the year in which the performance was made: the
TRIPS Agreement (Art. 14.5) has extended this to fifty years. In the European Union,
performers' rights last for fifty years from the end of the year of the performance, unless a
recording of the performance was published in which case they last for fifty years from the
end of the year of publication (Art. 3(1), Directive 93/98/EEC).[10]

Phonogram producers

The term phonogram is used to refer to any sound recording: under the Rome Convention,
it must be composed exclusively of a sound recording, although some national laws
protect film soundtracks with the same measures to the extent that they are not also
protected by other rights. The producers of phonograms, that is the person who makes the
recording rather than the person who performs, has the right to prevent the direct or
indirect reproduction of the recording (Art. 10 Rome Convention, Art. 2 Geneva
Phonograms Convention). The WPPT adds the rights to licence:

 the distribution of their phonograms, for sale or other transfer of ownership

(Art. 12);
 the rental of their phonograms, unless there is a compulsory licence scheme
in operation (Art. 13);
  the "making available to the public" of their phonograms (Art. 14), in effect
their publication on the internet.

Once a phonogram has been published, the producer cannot prevent its broadcast: an
equitable fee for the licence may be either agreed between phonogram producers and
broadcasters or imposed by law.

The Rome and Geneva Phonograms Conventions specify a maximum level of formality
required for protection of the phonogram (Art. 11 Rome; Art. 5 Geneva): countries are free
to set a lower level, or not to require formalities at all. The maximum conditions are that
each copy of the phonogram should be clearly marked with:

 the symbol (P), that is a capital P within a circle; followed by

 the year of first publication;
 the name of the owner or exclusive licensee of the producers' rights;
 for Rome Convention countries only, the name of the person who owns (the
licence in) the performers' rights in the country where the recording was
made.

Countries signing the WPPT shall not require any formality for the protection of
producers' rights.

The Conventions (Art. 14 Rome; Art. 4 Geneva) set a minimum term of protection of
producers' rights of twenty years from the end of the year in which the phonogram was
first published (or from its creation for unpublished recordings): the TRIPS Agreement
(Art. 14.5) extended this minimum to fifty years from the end of the year in which the
recording was made. The term of protection in the European Union is fifty years from the
end of the year in which the phonogram was first published, or from the end of the year of
its creation for unpublished recordings (Art. 3(2), Directive 93/98/EEC). For phonograms
recorded in the United States the situation is more complicated:

 recordings made before 1972-02-15: these are covered by state, not federal,
copyright law, although all rights will end on 2067-02-15 at the latest
[17 U.S.C. §301(c)];
 recordings made between 1972-02-15 and 1977-12-31 and published:
ninety-five years from the date of publication [17 U.S.C. §303(a)];
 recordings made and published on or after 1978-01-01: ninety-five years
after the date of recording if the recording was made "for hire", seventy
years after the death of the producer otherwise [17 U.S.C. §302(a), (c)];
 recordings made on or after 1972-02-15 and unpublished: 120 years after
the date of recording if the recording was made "for hire", seventy years
after the death of the producer otherwise [17 U.S.C. §302(a), (c)].[11]

Broadcasting organisations

Article 13 of the Rome Convention specifies that broadcasting organisations shall have the
right to prohibit (or licence):

 the rebroadcasting of their broadcasts;

 the fixation (recording) of their broadcasts;
 the reproduction of fixations of their broadcasts;
  the communication of their broadcasts to the public in places where an
entrance fee is charged.

Article 14 of the Rome Convention sets a minimum term for the protection of
broadcasters' rights of twenty years from the end of the year in which the broadcast was
first made, confirmed by the TRIPS Agreement (Art. 14.5). However, the Rome
Convention is limited to broadcasts intended for the public [Art. 3(f)]: the Brussels
Convention closes this loophole by providing for the protection of satellite broadcasts
which are not intended for direct public reception. In the European Union, broadcasters'
rights last for fifty years from the end of the year in which the broadcast was first made
(Art. 3(4), Directive 93/98/EEC).

Film producers
Directive 92/100/EEC[12] and Directive 2001/29/EC[13] provide rights to producers of the
first fixation ("master copy") of a film or other audiovisual work under European Union
law. These rights, similar to the rights of phonogram producers, are especially important in
Europe, where the producer is not usually the initial owner of the copyright in the film
itself. Film producers have the right to prevent:

 the direct or indirect reproduction of the film (either the master copy or
copies thereof) (Art. 2, Directive 2001/29/EC);
 the distribution of the film (or copies thereof) to the public for sale (Art. 9,
Directive 92/100/EEC);
 the "making available to the public" of the film (Art 3, Directive
2001/29/EC).

These rights last for fifty years from the end of the year in which the film was first
published or otherwise made available to the public, or for fifty years from the end of the
year in which the master copy was made is the film is not released (Art. 3(3), Directive
93/98/EEC).

Database creators
Directive 96/9/EC[14] creats a sui generis protection in the European Union for databases
which do not meet the criterion of originality for copyright protection. This is particularly
important for databases which aim to be complete, as these lack the element of selection
which might allow them to qualify for protection as "compilations" under Article 2.5 of
the Berne Convention (although their arrangement can still be considered creative). It is
specifically intended to protect "the investment of considerable human, technical and
financial resources" in creating databases (para. 7 of the preamble), whereas the copyright
laws of many Member States specifically exclude effort and labour from the criteria for
copyright protection. To qualify, the database must show "qualitatively and/or
quantitatively a substantial investment in either the obtaining, verification or presentation
of the contents" [Art. 7(1)]. Their creators have the right "to prevent extraction and/or re-
utilization of the whole or of a substantial part, evaluated qualitatively and/or
quantitatively, of the contents of that database." This is taken to include the repeated
extraction of insubstantial parts of the contents if this conflicts with the normal
exploitation of the database or unreasonably prejudices the legitimate interests of the
creator of the database [Art. 7(5)].
Database rights last for fifteen years from *the "completion" of the database, that is to say
the point at which the criterion of substantial investment is fulfilled, or from

 the date at which the database is made available to the public,

whichever is the later. The protection period runs until 31 December of the year in which it
expires. If there is a "substantial change" in the database which would be qualified as a
"substantial new investment", a new protection period is granted for the resulting database
(Art. 10).

Photographers
Each new technology for creative work has led to debates over the protection which
should be accorded to such works, as has been the case most recently for software
copyright and database rights: similar debates occurred over the copyright protection of
photographs. The Berne Convention allows a shorter period of protection than for other
works (twenty-five years from creation rather than fifty years post mortem auctoris,
Art. 7.4), and many countries apply a different period of copyright protection to
photographs than to other works. An alternative approach, adopted notably by Germany
and Italy, has been to offer full copyright protection to photographs which are clearly
"artistic works" and to protect all photographs, whatever their creative value, by a shorter
sui generis related right. This approach has the advantage of focusing the debate on those
photographs which still have some value at the end of the sui generis protection (no-one
would bother to try to protect photographs without value), which are the photographs most
likely to be original. However it also meant that photographs were subject to a higher test
of originality than other works of art, with copyright being reserved only for those which
the courts felt to be particularly meritous, in contravention of the spirit (if not the letter) of
the Berne Convention. The sui generis protections are found at § 72, UrhG[15] for Germany
(50 years) and Arts. 87–92, Legge 22 aprile 1941 n. 633[16] for Italy (20 years). The
different treatment of photographs and other artistic works was eliminated by European
Union Directive 93/98/EEC (Art. 6) which states that the only applicable criterion for
copyright protection is that the photograph be "original in the sense that they are the
author's own intellectual creation", a lower criterion than had been used up until then, but
equivalent to the criterion used for other copyright works. The sui generis protection may
be retained for photographs which do not meet this criterion (e.g., photographs taken
automatically such as for a passport).

Designers
Design rights fall between copyright and patent law: they are sometimes considered to be
industrial property and sometimes a related right to copyright. The Berne Convention
requires the protection of "applied art", but allows a shorter protection period of twenty-
five years after creation. Although it requires protection to the same minimum standards as
for copyright, the Convention does not require that the protection be called "copyright", [17]
a fact used by many countries to protect applied art and certain artistic designs by a related
design right. In countries where applied art can be protected by normal copyright term
(e.g., Germany), an extremely high level of originality and creatlivity is demanded. Insofar
as designs are considered to be industrial property, their international protection falls under
the Paris Convention for the Protection of Industrial Property.[18]
Semiconductor designers
A common sui generis design right is that which protects the design or topography of
semiconductor materials, particularly integrated circuits. These are protected
internationally by the IPIC Treaty of 1989, and in the European Union by Directive
87/54/EEC.[19] The reproduction of a protected topography is prohibited, as is the import of
infringing materials (Art. 5). Protected topographies may be identified by a capital T in a
variety of forms, including T* (Art. 9). The exclusive rights of the designer last for ten
years from the first commercial exploitation, or for fifteen years from the first creation for
topographies which are not exploited (Art. 7).

References and notes

1. ^ Although "neighbouring rights" is the term more commonly used in
translations, "related rights" is the term which is used in original English
language documents: e.g., the Irish Copyright and Related Rights Act, 2000
or the European Union directive on rental right and lending right and on
certain rights related to copyright in the field of intellectual property.
2. ^ Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organisations
3. ^ Berne Convention for the Protection of Literary and Artistic Works
(from WIPO)
4. ^ [Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms]
5. ^ Convention Relating to the Distribution of Programme–Carrying Signals
Transmitted by Satellite
6. ^ [Treaty on Intellectual Property in Respect of Integrated Circuits]
7. ^ Agreement on Trade-Related Aspects of Intellectual Property Rights
(from WTO)
8. ^ WIPO Performers and Phonograms Treaty (from WIPO)
9. ^ Source: WIPO.
10. ^ Council Directive 93/98/EEC of 29 October 1993 harmonizing the term
of protection of copyright and certain related rights, OJ no. L290 of
24 November 1993, p. 9.
11. ^ 17 U.S.C. Chapter 3: Duration of Copyright
12. ^ 92/100/EEC of 19 November 1992 on rental right and lending right and
on certain rights related to copyright in the field of intellectual property,
OJ no. L346 of 27 November 1992, p. 61.
13. ^ Directive 2001/29/EC of the European Parliament and of the Council of
22 May 2001 on the harmonisation of certain aspects of copyright and
related rights in the information society, OJ no. L167 of 22 June 2001,
p. 10, corrected by OJ no. L006 of 10 January 2002, p. 70.
14. ^ Directive 96/9/EC of the European Parliament and of the Council of 11
March 1996 on the legal protection of databases, OJ no. L77 of 27 March
1996, p. 20.
15. ^ Copyright Law of 1965-09-09.
16. ^ Law No. 633 of 1941-04-22.
17. ^ This fact is used by many common law countries to explain the lack of
protection of moral rights in their copyright laws: the rights are protected
by other statutes or by common law torts such as diffamation, passing off
and malicious falsehood.
18. ^ [Paris Convention for the Protection of Industrial Property].
 19. ^ Council Directive 87/54/EEC of 16 December 1986 on the legal
protection of topographies of semiconductor products, OJ no. L024 of
27 January 1987, pp. 36–40.

Retrieved from "http://en.wikipedia.org/wiki/Related_rights"

Database right
In European Union law, a database right is a legal right, introduced in 1996. Database
rights are one of the legal aspects covered by the umbrella term intellectual property.

In most countries, databases are covered by copyright law to some degree, as being a work
that shows originality in its selection, coordination and arrangement. The lawmakers of the
European Union decided that in order to provide greater legal cover to collections of
information they should have a unified legal cover for databases. To this end, they created
a sui generis right called database right. It was created by Council Directive No. 96/9/EC
of 11 March 1996 on the legal protection of databases. [1]

Database right lasts for 15 years under this regime, but can be extended if the database is
updated. A database right prevents copying of substantial parts of a database (including
frequent extraction of insubstantial parts). However, unlike copyright the cover is not over
the form of expression of information but of the information itself.

In many other respects, a database right is similar to copyright: it is created automatically,

vests in employers, does not have to be registered and is a right against use (not a
monopoly).

In the United Kingdom, it was introduced as "The Copyright and Rights in Databases
Regulations 1997"[2] and came into force on January 1, 1998.
 Supplementary protection certificate
In European Union member countries, a supplementary protection certificate (SPC) is a
sui generis, patent-like, intellectual property right. This type of right is available for
medicinal products, such as drugs, and plant protection products, such as insecticides, and
herbicides.

A supplementary protection certificate comes into force only after the corresponding
patent expires. It has a maximum life time of 5 years. The market exclusivity cannot
however exceed 15 years. It may be viewed as an extension of life time of a patent,
although the rights are somewhat different.

Supplementary protection certificates were introduced to compensate for the long time
needed to obtain regulatory approval of these products (i.e. authorization to put these
products on the market).

Applications for a supplementary protection certificate must be filed on a country-by-

country basis. There is no unitary European supplementary protection certificate, but
national ones only.

Determination of term

The term of an SPC depends on the date of issuance of the first market authorisation
within the EEA:

 If the first market authorisation is issued less than five years after the filing
date of the corresponding patent, no SPC is granted.
 If the first market authorisation is issued more than five years but less than
ten years after the filing date of the corresponding patent, an SPC is granted
for a term corresponding to the period elapsed between the five-year point
and the market authorisation issuance date.
 If the first market authorisation is issued more than ten years after the filing
date of the corresponding patent, an SPC is granted for a five-year term.

A market authorisation in Switzerland was also considered as being a first market

authorisation for the calculation of the SPC duration, even though Switzerland is not part
of the European Economic Area (EEA). This is because such a market authorization was
automatically effective in Liechtenstein, which is a member of the EEA (since May 1,
1995). This was decided by the European Court of Justice (ECJ) in joined cases Novartis
et al. v. Comptroller-General and Ministère de l'Economie v. Millennium Pharmaceuticals.
[1] [2]
However, as answer to the decision of the ECJ the contract between Switzerland and
Liechtenstein was amended. Since July 1st 2005 the automatic effect of a Swiss market
authorization in Lichtenstein is abolished. The recognition is now delayed by a time
period, which is normally 12 months.

Legal basis

Supplementary protection certificates in the European Union are based on two regulations:
  Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the
creation of a supplementary protection certificate for medicinal products [3]
which entered into force on January 2, 1993
 Regulation (EC) No 1610/96 of the European Parliament and of the
Council of 23 July 1996 concerning the creation of a supplementary
protection certificate for plant protection products [4] which entered into
force on February 8, 1997

Supplementary protection certificates may come into life at the expiry of a national or
European patent. However, the European Patent Convention (EPC) needed to be modified
to allow such "extension" of the term of European patent. Article 63 of the EPC was
modified on December 17, 1991 to specify to, although European patents have a term of
20 years as from the date of filing of the application (Art. 63(1)),

" nothing (...) shall limit the right of a Contracting State to extend the term of a
European patent, or to grant corresponding protection which follows immediately
on expiry of the term of the patent, under the same conditions as those applying to
national patents: (...)
(b) if the subject-matter of the European patent is a product or a process of
manufacturing a product or a use of a product which has to undergo an
administrative authorisation procedure required by law before it can be put on the
market in that State. " [5]

This constituted the first revision of the European Patent Convention since its signature in
1973.

Statistics
According to research, more than 8,000 SPCs for medicinal and plant protection products
have been filed in Europe between 1991 and 2003. [6]
Organizational set up

Ministry of Agriculture

Department of Agriculture and Cooperation

Directorate of Plant Protection, Quarantine and Storage

Plant Quarantine Division

National Plant Quarantine Station (N.P.Q.S.) (ISO-001 New Delhi)

Reg. Plant Quarantine Station (R.P.Q.S.)
   
Amritsar Mumbai Kolkatta Chennai (ISO-9001)

Different laws related to, quarantine in India:

 Destructive Insects and Pests Act. 1914. , .Plant Fruit and Seed order, 1989.
 New Policy on Seed Development, 1988.
 Environment Protection Act. 1986 (for transgenics).
The New Quarantine bill (Now under consideration of central government).
Plant quarantine in India:
A committee was constituted in Nov, 1911 and based on its recommendations, Destructive
Insects and Pests Act (DIP Act) to regulate the introduction into India and transport from one state
to another in India, of any insect, fungus, or other pest which may be destructive to crops, was
passed on Feb. 3, 1914.
Before the establishment of Directorate of Plant Protection, Quarantine and Storage,
Officers of the Customs Department implemented the rules framed under DIPA. Later first Plant
Quarantine and Fumigation Station was formally inaugurated in December 1951.
At present there are 29 quarantine stations.
Seaports – 10 Airports – 10 Land Frontier – 9
However Plant Fruit and Seed order, 1989 which is being revised and renamed as plant
quarantine (Regulations of Import into India) order identifies 54 points of entry (34 seaports, 11 air
ports and 9 land frontier stations)
Apart from plant quarantine officers at quarantines, there will be Chain of other from
various Central and State Agricultural Departments and State Agricultural Universities.
1. Officers for issuing import permit.
2. Designated Inspection Authorities.
3. Officers for issuing phytosanitary certificates.
Also at state level governments are entitled to enact laws, if needed to protect the crops
from foreign pests or pests from other states.
Quarantine setup in Karnataka
Quarantine stations
1. Bangalore
2. Mangalore
Officer for issuing import permit:
Assistant Director (Plant Pathology)
Central Integrated Pest Management Centre,
Bangalore
Designated Inspection Authorities
Authority Area (Districts)
1 Professor & Head, Bangalore Rural, Bangalore Urban, Chitradurga, Coorg,
Dept. of Plant Pathology Chikmagalur, Dakshina Kannada, Davanagere, Hassan,
UAS, Bangalore Kolar, Mandya, Mysore, Shimoga, Tumkur, Udupi
1 Professor & Head, Bagalkote, Belgaum, Bellary, Bidar, Bijapur, Dharwad,
Dept. of Plant Pathology Gadag, Gulbarga, Haveri, Koppal, Raichur, Uttar Kannada
UAS, Dharwad
Officers for issuing PSC’s
 The Officer-in-Charge, Central Integrated Pest Magt. Centre, Bangalore.
 Deputy Director (Entomology), Directorate of Agriculture, Seshadri Road, Bangalore,
Karnataka.
 Deputy Director (PP), Directorate of Agriculture, Seshadri Road, Bangalore.
 Directorate of Horticulture, Govt. of Karnataka, Lal Bagh, Bangalore.
 Director, Central Coffee Research Institute, Chikmagalur
Quarantine of transgenics:
Field release of transgenic crops may effect environment, ecosystem and human health
and the potential risks cannot be shrugged off at least for the time being as the safety of using
transgenic was debatable. Hence, they should also be subjected to quarantine.
Regulations for release of transgenics are well established in most developed countries. At
international level, cartegena protocol on bio-safety was accepted in Montreal on 29th January
2000. It provides an international regulatory framework for the growing biotechnology industry
that would reconcile the interests of international trade and the need for environmental protection.
In India a three-tier mechanism has been setup under the Department of Biotechnology
DBT to look into safety aspects of transgenics. At national level, Department of Biotechnology
(DBT) of the Ministry of Science and Technology and the Department of Environment of Ministry
of Environment and Forestry looks after the Biotechnological work in India. While the former
reviews permits, monitors and implements the experiments utilizing Genetically Modified
Organisms (GMO's) and recombinant DNA products the latter looks after the commercial
deployment and use of these through its Genetic Engineering Approval Committee (GEAC). The
guidelines followed are as per the norms prescribed under environment protection Act, 1986.
Review Committee on Genetic Manipulation under the DBT will issue clearance for
import of GMO's needed for experimental work.
NBPGR is the nodal agency for issuing import permit and undertaking the quarantine
processing of the imported transgenic plant material. Import permit will be issued after the import
clearance is accorded by Review Committee on Genetic Manipulation (RCGM) of DBT.
 Till September 2001 NBPGR has released 350 samples of transgenic crops (mustard,
soybean, cotton, maize, rice, chickpea) to their respective indenters. About 141 out of 359
transgenic soybean samples of Monsanto were found to be infected by dreaded downy mildew
fungus Peronospora manshurica not yet known to occur in India were rejected.
Pest Risk Analysis (PRA)
In view of manifold increase in the quantum of import and export of plant materials in
recent years, the existing plant quarantine process seems to be far from being satisfactorily
equipped. Concerned with pressures placed on quarantine through increased trade has led to debate
how best to manage the risks attached through this trade. To cope up with these difficulties it is
widely felt that a sound scientific system must be developed to regulate the export and import of
disease/pest free plant material without any unnecessary trade barriers. It is this situation, which
has necessitated the introduction of the concept of Pest Risk Analysis (PRA) in Plant Quarantine
functions. Pest Risk Analysis is aimed at identifying quantifying and reporting of the possible
management options on account of the probable introduction of a pest along with an imported
plant commodity. The international trade of agricultural commodities requires phytosanitary
measures or actions as per Sanitary and Phytosanitary (SPS) and Technical Barrier to Trade (TBT)
Agreement. (Khetarpal et al., 2002)
Definition:
The process of evaluating biological or other scientific and economic evidence to
determine whether a pest should be regulated and the strength of any phytosanitary measures to
be taken against it.
Pest in the above definition is to be read as any species, strain or biotype of plant, animal
or pathogenic agent injurious to plants or plant products.
Phytosanitary measure is any legislation, regulation or official procedure having the
purpose to prevent the introduction and/or spread or pests.
PRA Area:
Depending upon the purpose and feasibility PRA area may include one to many countries
or it may be even restricted to a part of a country or state.
Objectives: (for import PRA)
The prime goal of PRA is to ensure healthy transactions of agricultural commodities in
global trade. To achieve this, PRA provides the necessary basis for quarantine regulations through
the following objectives:
i. Compile comprehensive host-pest lists for the country concerned and the world.
ii. Form a list of Potential Quarantine Pests (PQP's) of the crop (all plant parts) for that
country followed by a list of PQP's specific to the commodity type (seed or any other
plant material).
iii. Identify and describe the Quarantine Pests of concern to that country, known to be
associated with the pathway in concern along with those associated with the exporting
country.
iv. Profile of the pathway specific Quarantine Pests (QP's) of concern.
v. Risk assessment analysis for (QP's) of major concern.
vi. Identifying existing import conditions and/or phytosanitary measures and document
risk management recommendations.
Stages in pest risk analysis:
Pest risk analysis involves three different stages,
Stage: 1 Initiation Stage: 2 Pest Risk Assessment
Stage: 3 Pest Risk Management

Stage 1: Identification of potential Quarantine Pests of concern to that country

Stage: 2 Pest Risk Assessment is the second stage of PRA process and it is sub divided into 3
steps.
i) Pest categorization where potential quarantine pests will be established as quarantine
pests.
ii) Probability of Introduction: Probability of entry and probability of establishment are
included in this.
iii) Economic Impact Assessment: Whether the pest is of potential economic importance
in the PRA area or not? Will be determined in this step.
Stage: 3 Pest Risk Management: Different risk management options, like prohibition, post entry
quarantine, phytosanitary treatments will be decided.
Pest Risk Management Options:
Pre-entry:
• Production in the Pest Free Areas
• Field Inspection
• Treatment of consignment
• Import specific protocols
• Prohibition
Entry:
•Inspection and treatment
• Specific port of entry
• Change of end use
• Rejection/Destruction
Post Entry:
•Auditing for conformance
• Surveillance
• Post-entry quarantine
Regulatory Mechanism:
International level:
International Protocol on Bio safety 2000
National level
:
Destructive Insects and Pests Act 1914
Indian Environment Protection Act 1986

Ministries/ Departments Involved:

Ministry of Science and Technology
Department of Biotechnology
Ministry of Agriculture
Department of Agric. Research & Education
Ministry of Environment and Forestry
Department of Environment
Role of NBPGR
• Issue Import Permit
• Give National accession Number
• Undertake quarantine processing
• Develop probes for detection
• Ensure absence of terminator gene
• Establish a transgene bank
• Human Resource Development
• For import of bulk consignments meant for commercial/ industrial purpose one needs to apply
directly to GEAC and obtain a license before applying for import permit
For export of GMOs as bio control agent permission is required from RCGM, GEAC and DPPQ
& S.
Right to advocate own standards
 Based on scientific principles Applied such that they do not constitute disguised restriction
on international trade
Principle of Harmonization:

The establishment, recognition and application of common sanitary and phyto-sanitary measures
by the members

Principle of Transparency:
• All members be aware of standards imposed by other members
• Obligatory for members to declare their SPS measures
Product Standards
Quality of the output
Permissible level for pesticides, additives, residues etc.
Permissible level of contamination and spoilage
Processing Standards
• Guidelines for maintaining cleanliness during the production
• Provision for light, air and other hygiene conditions in the plants
• Level of technology to be used
Testing Standards
• Various tests to be carried out for testing quality
• Procedure for checking hygiene conditions during production process
• Tests are usually carried out by independent bodies
Certification Standards
• Identification of the agency giving the certificate
• The certificate specifies that the product and process standards be satisfied by the product in
question
• The agency carries out regular surveillance to ensure that firms adheres to these standards
Table: Comparison of national and international standards (Codex) for Sanitary and

Phytosanitary stipulations

International level
Particulars National level Standards Gap
Standards
SPS standards High MRL value Low MRL value Should be upgraded
Periodical revision No periodical revision of Done every year Revision needed
of standards MRLs
Registration of Ad-hoc registration is Done regularly Registration need to
pesticide continuing be streamlined
What are aflatoxins?
• Mycotoxins-Toxic metabolites produced by fungi
• Aflatoxins- Aspergillus flavus and Aspergillus parasiticus
• Aflatoxins harmful to human beings and livestock
• Types of aflatoxins are B1, B2, G1, G2 and M1
• Aflatoxin M1 (4-hydroxy derivative of aflatoxin B1) in milk
• The aflatoxin problem came to light in the 1960’s with “Turkey X Disease” in England
• Most common in African, Asian and South American countries with warm and humid climates
Food products susceptible to aflatoxin contamination
 Cereals: Maize, sorghum, pearl millet, rice and wheat
 Oilseeds: Groundnut, soybean, sunflower and cotton
 Spices: Chilli, black pepper, turmeric, coriander and ginger
 Nuts: Almond, pistachio, walnut and coconut
 Milk and milk products
Regulatory Actions
Many countries have adopted sanitary and phytosanitary (SPS) regulations to limit exposure to
aflatoxins
•Regulations are in the form of product rather than process standards
•Standards vary widely among different nations
 Standards ranging from 0 ppb to 50 ppb for food items
 Standards ranged from 0 ppb to 1000 ppb for animal feeds
In 1999, 77 countries had specific regulations, 13 countries had no specific regulations and no data
were available for about 50 countries
Product standards for aflatoxins
USA
European Union
Product Standard Product Standard
(ppb) (ppb)
Raw peanuts (industry 15 Peanuts, nuts, dried fruits and 4
standard) processed products thereof
intended for direct human
consumption
Human food, corn and other 20 Peanuts to be subjected to sorting 15
grains intended for immature or other physical treatment,
animals (including poultry) before human consumption or use
and for dairy animals or as an ingredient in food
when its destination is not
known
For animal feed other than Nuts and dried fruit to be
corn or cottonseed meal 20 subjected to sorting or other 10
physical treatment, before human
consumption use as an ingredient
in food
For corn and other grains Cereals and processed products
intended for breeding beef 10 thereof intended for direct human 4
cattle, breeding swine or consumption or an ingredient in
mature poultry food

Selected References
KHETARPAl, R.K AND GUPTA KAVITA, 2002, Implications of Sanitary and Phytosanitary
Agreement of WTO on plant protection in India. Annual Review of Phytopathology,
1:1-26.
KHETARPAL, R.K., GUPTA KAVITA AND B.M PANDEY., 2002, Pest Risk Analysis and its
significance under WTO regime. In Proceedings of XI National Seed Seminar on Quality seed
to enhance agricultural productivity held at U.A.S., Dharwad, January 18-20, pp: 110-113
www.plantquarantineindia.org
www.wto.org