BY: ATUL JUYAL

Introduction
The TRIPS Agreement, entered into force on 1

January 1995, is binding on each Member of the WTO from the date the WTO Agreement becomes effective for it.
The Council of TRIPS administers the TRIPS Agreement and is open to all WTO Members. The Council Council.

reports to the WTO General

INTELLECTUAL PROPERTY RIGHTS (IPRs)

What are IPRs? Intellectual property rights (IPRs) are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
IPRs are customarily divided into two main areas: 1. copyright and rights related to copyright; and, 2. industrial property.

IPRs (continued..)
1. COPYRIGHT AND RIGHTS RELATED TO COPYRIGHT The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculptures, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author. Also protected through copyright and related rights (or"neighbouring rights") are the rights of performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations.

IPRs (continued..)
2. INDUSTRIAL PROPERTY :Industrial property can

usefully be divided into two main areas: (a)the protection of distinctive signs, in particular trademarks and geographical indications. Trademark and geographical indication protection may last indefinitely, provided the sign in question continues to be distinctive. (b)the protection of inventions(protected by patents), industrial designs and trade secrets. The protection is usually given for a finite term (typically 20 years in the case of patents).

IPRs (continued..)

WHY ARE IPRs PROTECTED? Encourage and reward creative work Technological Innovation Fair Competition Consumer Protection Transfer of Technology
BALANCE OF RIGHTS AND OBLIGATIONS The exclusive rights given to the owners of intellectual property are generally subject to a number of limitations and exceptions, aimed at balancing the legitimate interests of right holders and of users.

THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (THE TRIPS AGREEMENT) The TRIPS Agreement is to date the most comprehensive multilateral agreement on intellectual property. The Agreement consists of seven parts: I. General provisions and basic principles (such as national treatment and most-favoured nation treatment (MFN), and exhaustion of IPRs); II. Substantive standards of intellectual property protection; III. Enforcement; IV. Procedures for the acquisition and maintenance of IPRs; V. Dispute prevention and settlement; VI. Transitional arrangements; and, VII. Institutional arrangements.

THE TRIPS AGREEMENT (continued..)

Objectives

a) To reduce distortions and impediments to international

trade and take into account the need to promote competent as well as adequate protection of IPRs. b) To ensure that measures and procedures to enforce IPRs do not themselves become barriers to legitimate trade. c) To reduce tensions by reaching strengthened commitment to resolve disputes on trade-related IP issues through multilateral procedures. d) To establish a mutually supportive relationship between the WTO and World Intellectual Property Organisation (WIPO)

I. Basic principles: National Treatment, MFN and Exhaustion of IPRs

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

a) National Treatment: Article 3 on national treatment

requires each Member to accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property.

b) Most-favoured Nation: Article 4 on MFN treatment requires that, with regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other Member shall be accorded immediately and unconditionally to the nationals of all other Members.

Basic principles (continued..)

c) What is "exhaustion"? The term "exhaustion" refers to the generally accepted principle in intellectual property law that a right owner's exclusive right to control the distribution of a protected item lapses after the first act of distribution.
While it is generally accepted that IPRs are exhausted within the jurisdiction where the first sale took place, are such rights exhausted when the first sale takes place outside the jurisdiction in question? The answer to this depends on whether a country applies a regime of national or international exhaustion.

National exhaustion means that the distribution right of the IPR owner is only considered exhausted if he has put the protected item on the market(for sale) in that country.

Basic principles (continued..)

His distribution right would not be considered exhausted regardless of where the first act of distribution took place. Thus, parallel imports of products first sold on other markets are illegal in a country with a national exhaustion regime. In contrast, if a country has an international exhaustion regime, this means that the right owner's distribution right in that country is exhausted regardless of where the first act of distribution took place. Therefore, in countries with an international exhaustion regime, parallel imports are legally possible. Each Member are free to establish its own regime for exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

II. Substantive Protection of IPRs

TRIPS Agreement lays down norms and standards for 7 types of IPRs: 1. Copyright and related rights 2. Trademarks 3. Geographical Indications 4. Industrial Designs 5. Patents 6. Layout Design 7. Undisclosed Information

Substantive Protection of IPRs (continued)

1. Copyright and related rights Copyright grants exclusive rights to the creator of original scientific, artistic and literary works. Original is key in defining a work that qualifies for copyright protection The term of protection (for copyright life of the author and fifty years after his death, for related rights, term of protection is at least 50 yrs for performers and producers of phonogram and 20 yrs for broadcasting organizations) Countries to confine exceptions to exclusive rights to certain special cases which do not conflict with exploitation of the work and not prejudicial to right holder.

Substantive Protection of IPRs (continued)

2. Trademark A trademark is a sign, or a combination of signs, which is used to distinguish the goods or services of one enterprise from those of others. Trademark protects any word, name, logo or device used to identify, distinguish or indicate the source of goods or services Includes trade dress (the total image and overall appearance of a product) and product configuration (the shape if non functional) The purpose is to safeguard the integrity of products and to prevent product confusion and unfair competition The term of protection (initial registration and each renewal of registration of a trademark shall be for a term of no less than 7 years)

Example: Trademark

Substantive Protection of IPRs (continued)

3. Geographical Indications (GIs) A geographical indication (GI) identifies a good as originating in a particular region or locality, where a given quality, reputation or other characteristic is essentially attributable to its geographical origin. TRIPS prohibits the use of GIs in such a way as to cause deception and provides for injunctive relief, refusal of trademark registration, etc Exceptions such as Countries are not obliged to bring a geographical indication under protection, where it has become a generic term for describing the product in question The term of protection (The registration of a GI shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment of the renewal fees.)

Example: GI

Substantive Protection of IPRs (continued)

4. Industrial designs The term "industrial design" is generally understood to refer to the ornamental or aesthetic aspect of an article. Protects the artistic aspect (namely, texture, pattern, shape) of an object instead of the technical features The term of protection (amount to at least 10 years) The third party is prohibited from making, selling or importing articles bearing a design which is a copy of the protected design, when such acts are undertaken for commercial purposes Exception: optional mandate, if introduced then such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design

Example: Industrial Design

Substantive Protection of IPRs (continued)

5. Patents A patent is the title given to the intellectual property right that is granted to protect inventions. It gives inventors an exclusive right to prevent others from exploiting the patented invention, during a limited period of time. The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to novelty, inventiveness and industrial applicability Invention to be novel, useful and non-obvious The agreement allows countries to exclude inventions from patentability on following grounds: a. Inventions necessary to protect ordre public or morality; including to protect human, animal or plant life or health or to avoid serious prejudice to the environment

Example: Patents

Substantive Protection of IPRs (continued)

b. Members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a) c. Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than nonbiological and microbiological processes. d. Limited Exceptions e. Compulsory Licensing

The term of protection (for a period of 20 years counted from the filing date)

Substantive Protection of IPRs (continued)

6. Layout-designs of integrated circuits A layout-design is the three-dimensional layout of an

integrated circuit (or "chip"). It refers to mask works (topographies) of the integrated circuits, the stencils used to etch or encode an electrical circuit on a semiconductor chip Protection conferred to original layoutdesign/topographies Exclusive rights include the right of reproduction and the right of importation, sale and other distribution for commercial purposes The term of protection (ten years form the date of first commercial exploitation)

Example: Layout design of Integrated Circuits

Substantive Protection of IPRs (continued)

7. Protection of undisclosed information Undisclosed information refers to trade secrets and certain test or other data submitted to government agencies. The protection must apply to information that is secret, that has commercial value because it is secret and that has been subject to reasonable steps to keep it secret Trade secrets consist of formulae, patterns, process or compilation of information. (for example the formula for a sports drink) In most countries, they are not subject to registration but are protected through laws against unfair competition

III. Enforcement
TRIPS Agreement also requires Members to make available enforcement procedures to permit prompt and effective action against any act of infringement of IPRs Covered by the Agreement. I) Provisions for domestic procedure and remedies for the enforcement of the IPRs (II) Includes general principle applicable to IPR enforcement procedure apart from administrative, civil and criminal procedure available for enforcement of rights of the right holder

IV. Procedure for the acquisition and Maintenance of IPRs

Member countries must create office and operate

governmental offices for the acquisition and maintenance of IPRs Procedures for granting and registration of IPR must be reasonable Member country's law must provide for opposition, revocation and cancellation Member country may adopt measures to protect public health and the public interest

V. Dispute settlement
The agreement further provides for the settlement of

disputes over IPR among the member states within the parameters of dispute settlement procedure.

VI. Transitional arrangements

The TRIPS Agreement gives all WTO Members transitional periods which differ according to their stages of development, to bring themselves in compliance with its, are contained in Articles 65 and 66. 1 JANUARY 1996: DEVELOPED COUNTRIES + NONDISCRIMINATION (ALL MEMBERS) Developed country Members have had to comply with all of the provisions of the TRIPS Agreement since 1 January 1996. Moreover, all Members, even those availing themselves of the longer transition periods, have had to comply with the national and MFN treatment obligations as of 1 January 1996 (Article 65.1).

Transitional arrangements (continued...)

1 JANUARY 2000: DEVELOPING COUNTRIES & ECONOMIES IN TRANSFORMATION For developing countries, the general transition period was five years, i.e. until January 2000. LEAST-DEVELOPED COUNTRIES (LDCS) Article 66.1 originally provided LDC Members a transitional period until 1 January 2006, with an extension upon a duly motivated request. In 2005, upon a request of LDCs, the TRIPS Council extended the general transitional period for LDCs until 1 July 2013.
Pursuant to the Doha Declaration on the TRIPS Agreement and Public Health , the TRIPS Council decided in 2002 to extend the transition period for LDCs for certain obligations with respect to pharmaceutical products until 1 January 2016.

VII. Institutional arrangements

Council for Trade Related Aspects of Intellectual Property Rights (TRIPS) Dispute Settlement Body (DSB)
Current Negotiations in special sessions (SS)

Relationship between TRIPS agreement and other IP treaties

Respects the standards and complies with the multilateral conventions administered by WIPO ,under the four pre existing WIPO treaties 1.Paris Conventions for the protection of industrial property (1983)and 2.Berne Conventions for protection of literary and artistic works(1886), 3.the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations ("Rome Convention") and 4.the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC)) are also allowed under TRIPS.