The TRIPS Agreement is Annex1C of the Marrakesh Agreement Establishing the World Trade Organization of 15th April, 1994 which entered into force on 1st January, 1995.
The TRIPS Agreement is integral part of WTO Agreement & is binding on all members of WTO from the date the WTO Agreement becomes effective for that country.
The Uruguay Round of multilateral trade negotiations held in the framework of the General Agreement on Tariffs and Trade “GATT” was concluded on December 15, 1993. The agreement embodying the results of those negotiations, the Agreement Establishing the World Trade Organization “WTO Agreement”, was adopted on April 15, 1994, in Marrakech.
Those negotiations included, for the first time within the GATT, discussions on aspects of intellectual property rights related to international trade. The result of those negotiations, contained in an Annex to the WTO Agreement, was the Agreement on Trade-Related Aspects of Intellectual Property Rights the “TRIPS Agreement”
The WTO Agreement, including the TRIPS Agreement (which is binding on all WTO Members), entered into force on January 1, 1995. The former agreement established a new organization, the World Trade Organization, which began its work on January 1, 1995.
The TRIPS Agreement is a comprehensive multilateral agreement on IP.
It deals with each of the main categories of IPRs, establishes standards of protection as well as rules on administration & enforcement of IPRs, & provides for application of WTO dispute settlement mechanism to resolve dispute between members concerning compliance with its standards.
The TRIPS Council consisting of all members is one of the three sectoral councils operating under the General Council, the other two being council for trade in Goods & the Council for trade in service.
Part 1 of Agreement sets out general provisions & basic principles of the Agreement, such as national treatment & most favored nation treatment & exhaustion of IPRs.
The general rules of the TRIPS Agreement are set out in its preamble, & include reducing distortions & impediments to international trade, promoting effective & adequate protection of IPRs, & ensuring that measures & procedure to enforce IPRs do not themselves become barriers to legitimate trade.
IP protection is expected to contribute not only to the promotion of technological innovation, but also to the transfer & dissemination of technology in a way that benefits both its procedures & users & that respects a balance & rights & obligations, with the overall goal of promoting social & economic welfare.
Article 8, entitled Principles recognize the rights of members to adopt measures for public health & other public interest reasons & to prevent the abuse of IPRs, provided that such measures are consistent with the provisions of TRIPS Agreement.
Members may, in formulating or amending their laws& regulations, adopt measures necessary to protect public health & nutrition, & to promote the public interest in sectors of vital importance to their socio-economic & technological development, provided that such measures are consistent with the provisions of this agreement.
Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
A basic principle concerning the nature and scope of obligations under the TRIPS Agreement is that Members must give effect to the provisions of the Agreement and accord the treatment provided for in the Agreement to the nationals of other Members. “A national” is understood as meaning those natural or legal persons who would be eligible for protection if all Members of WTO were also bound by the Paris, Berne and Rome Conventions and by the Washington Treaty on Intellectual Property in Respect of Integrated Circuits
Members are free to determine the appropriate method of implementing the provisions of the TRIPS Agreement within their own legal system and practice, and may implement more extensive protection than is required, provided that such additional protection does not contravene other provisions of the Agreement.
The TRIPS Agreement is built on principles more than a century old, embodied in the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. In fact, almost all the substantive provisions of these two Conventions are incorporated by reference directly in the TRIPS Agreement.
TRIPS provides for the principle of national treatment, requiring that Members accord the treatment provided for in the Agreement to the nationals of other Members, the latter defined, for the corresponding rights, in terms of the relevant provisions of the Paris, Berne and Rome Conventions and the IPIC Treaty.
- The Most-Favored-Nation Principle (MFN)
- The TRIPS Agreement contains the most-favored-nation principle, which has not traditionally been provided for in the context of intellectual property rights on the multilateral level. This principle provides that any advantage, favor, privilege or immunity granted by a Member to the nationals of any other country (whether a Member or not) shall be accorded immediately and unconditionally to the nationals of all other Members, with certain specified exemptions. As is the case for national treatment, procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights are exempted from this principle.There are certain exceptions to these general rules. In particular, there is no obligation to restore protection to subject matter which has fallen into the public domain . In addition, certain obligations concerning computer programs, cinematographic works and phonograms (Articles 11 and 14(4)) need not be applied with respect to originals or copies purchased prior to the date of application of this Agreement . Further, provisions concerning guidelines for use without authorization and non-discrimination as to the field of technology need not be applied to use without the authorization of the right-holder where authorization for such use had been granted by the government before the date the Agreement became known.
- Civil and Administrative Procedures and Remedies (Section 2)
The TRIPS Agreement establishes guidelines concerning civil and administrative procedures which must be followed with respect to enforcement of intellectual property rights. These include provisions on fair and equitable procedures , evidence , injunctions , damages , and other remedies, such as the authority to order disposal of infringing goods or materials and implements used in the creation of infringing goods ; these provisions also deal with right of information, for example the authority to order that the infringer inform the right-owner of the identity of third persons involved in the production and distribution of infringing goods or services and of their channels of distribution indemnification of the defendant, and application of the above guidelines to administrative procedures.
- Special Requirements Related to Border Measures (Section 4)
The TRIPS Agreement provides for certain enforcement procedures related to border measures, to enable a right-holder who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application for the suspension by the customs authorities of the release into free circulation of such goods. Guidelines are established with respect to suspension of release by customs authorities, application for such procedures, security or equivalent assurance, notice of suspension, duration of suspension, indemnification of the importer and of the owner of the goods, right of inspection and information, ex officio action, remedies and de minims
- Criminal Procedures (Section 5)
The TRIPS Agreement requires that Members provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale. They also have to provide for remedies such as imprisonment, monetary fines and seizure, forfeiture and destruction of the infringing goods and of any materials and implements predominantly used for the commission of the offense.
