TRIPS AGREEMENT: - AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS:
The TRIPS agreement is the outcome of discussions in the Uruguay Round of the General Agreement On Tariff and Trade – GATT, is administered by the World Trade Organisation –WTO which sets minimum standards for multiple forms of IPR applicable to nationals of all WTO members.
TRIPS agreement was instrumental in initiating intellectual property law into the global mercantile regime. TRIPS remains the most wide ranging and complete legal instrument on IPR till date.
Another round of discussion in Doha further clarified the reach and scope of TRIPS especially in the light of developing countries who had to undertake transition in their national law to meet the requisites of TRIPS agreement in order to come on par with the harmonized global IPR system.
Aspects of the TRIPS Agreement:
TRIPS features the requirements to be met by nations with respect to:
· Geographical indications
· Appellations of origin
· Industrial designs
· Integrated circuit layouts
· Plant varieties
· Trademarks, Trade dress and Trade secrets
Protection and Enforcement of all these Intellectual Property Rights shall focus on contributing to the promotion of technological innovation and technology transfers that mutually benefit and advance social and economic welfare along with striking an effective balance between rights and duties amongst the signatory member countries.
Scope of TRIPS regarding IPR:
· Defines the types of signs eligible for protection
· Provides for the protection of service marks
· Establishes the minimum rights of trademark owners
· Confers additional protection for marks that are well known in a particular country
· Defines the standards concerning the availability, scope, and use of intellectual property rights, including copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, protection of undisclosed information and control of anti-competitive practices in contractual licenses
· Specifies enforcement procedures
The most practical advantage of TRIPS is that it is versatile enough for member countries to mould TRIPS so as to integrate the features of the agreement along with their existing national law on IPR.
Objectives of TRIPS concerning Trademarks:
All signatory members to TRPS have to follow the following objectives of the TRIPS agreement so as to comply with the requirements therein:
a. signs or combination of signs capable of distinguishing goods and services of one entity from another shall be capable of constituting trademarks and service marks.
b. such signs shall be inclusive of: words, personal names, letters, numerals, figurative elements, combinations of colours and combinations of all these signs shall be eligible for registration as trademarks
c. acquired distinctiveness through continuous usage shall make a sign eligible for registration.
d. all signs aspiring registration must be visually perceptible, which means they should be noticeable visually.
e. applications for registration shall not be refused registration solely on the ground that intended use has not taken place before the expiry of a period of 3 yrs. From the date of application.
f. actual use of a trademark shall not be a condition for filing a trademark application for registration.
g. mandatory publication of each trademark prior to registration or immediately after registration to facilitate interested or aggrieved third parties to petition their objections to the registrability of the proposed marks for registration.
h. proposed marks shall not violate morality, public policy and the law of the land in which registration is sought.
Rights conferred on the trademark owner:
· Identical or similar marks to the registered trademark shall be prevented from being used in trade and commerce so as to protect the rights of the trademark owner. In the event such identical or similar marks surface, they are assumed to violate this right of the trademark owner.
· Registration of trademarks shall take into account unregistered existing marks prior to the registered trademark that have been in use over a long period of time. Owners of such prior trademarks shall not be prejudiced by way of registration of later marks.
· Keeping in mind the tremendous publicity and promotion of trademarks making them famous and well known, member countries shall take into account the knowledge of the general public regarding such famous and well known marks in the relevant sector the trademark owner intends to engage in business. Accordingly such famous and well known marks shall be protected. This applies to service marks as well.
· Registration of trademarks when dependent on usage, are give a window of 3 yrs within which they have to begin usage of marks. Otherwise, such non-use makes the mark vulnerable to cancellation. However obstacles to usage based on border security measures etc., shall be recognized as valid reasons for non-use of registered trademarks.
· Compulsory licensing of trademarks is not permitted among member countries. However, licensing and assignment of registered trademarks are subject to domestic legislation. Transfers of trademarks can take place without the business being transferred.
· Prevention of unfair competition amongst member countries.
Objectives of TRIPS concerning Geographical Indications:
· WTO members shall not register such similar or identical geographical indications bearing resemblance to registered GI so as to prevent misleading consumers and the general public as to the true place of origin.
· Prevention of unfair competition is yet another focus of TRIPS.
· Usage of misleading GI in combination with trademarks for such goods which do not originate from the territory indicated are liable for refusal of registration. This usage is extended to wines and spirits as well and covers misleading information that could arise by way of translation especially relating to expressions such as ‘kind, type, style, imitation’ etc. homonymous
TRIPS strives to achieve the following:
- The provision of effective and appropriate means for the enforcement of trade related intellectual property rights, taking into account differences in national legal systems;
- Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;
- Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade related intellectual property issue through multi lateral procedures.