Intellectual property
Preface
At the heart of the World Trade Organization (WTO) is a set of rules that regulate trade between nations: a body of agreements which have been negotiated and signed by governments of most of the world’s trading nations with the aim of promoting transparency predictability and nondiscrimination in trading relations. These agreements covering trade in goods trade in services and trade-related aspects of intellectual property rights help to define and inform the multiple roles of the WTO as an international intergovernmental organization in administering the provisions of these agreements providing a forum for trade negotiations handling trade disputes monitoring national trade policies providing technical assistance and capacity building for developing countries and cooperating with other international organizations. Understanding these agreements and their practical policy and legal contexts therefore provides significant insights into the WTO as an institution its activities and international role its partnerships with other organizations and the way in which WTO member governments identify and pursue their national interests through this intergovernmental forum.
Trademarks
This chapter explains the provisions of Section 2 of Part II of the TRIPS Agreement entitled ‘Trademarks’. This Section contains seven articles from Article 15 to Article 21 and deals with the protection that members have to make available for trademarks.
TRIPS and public health
Public health has been one of the most extensively discussed aspects of the TRIPS Agreement both in terms of the treaty text itself and its implementation at the domestic level. Its significance is borne out by a proclamation at the ministerial level the 2001 Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) and by the ensuing amendment of the Agreement itself the first amendment of any WTO multilateral trade agreement undertaken specifically to provide the most vulnerable countries with an additional secure legal pathway to gain access to affordable generic medicines.
Guide to transparency under TRIPS
This Appendix provides a practical guide to the transparency mechanisms established under the TRIPS Agreement concerning how countries choose to implement provisions of the Agreement. These mechanisms help the TRIPS Council to monitor the operation of the Agreement and to promote understanding of members’ intellectual property (IP) policies and legal systems. This Appendix focuses only on the practical use of these mechanisms: the relevant chapters of this book should be consulted for their full background and context.
Dispute prevention and settlement
Chapters II to VIII have dealt with members’ commitments as regards the substantive standards for protection of IPRs under domestic laws as well as their enforcement through their domestic legal systems. An important feature of the TRIPS Agreement is that disputes between members about compliance by member governments with these TRIPS obligations are subject to the dispute settlement system of the WTO. The TRIPS provisions on dispute settlement are contained in Part V of the TRIPS Agreement entitled ‘Dispute Prevention and Settlement’.
Guide to TRIPS documents
The TRIPS Agreement includes a set of transparency mechanisms which require members to furnish extensive information about their IP laws and policies and details about how IPRs are administered and enforced in their territories; these laws are also reviewed in detail in the TRIPS Council. In addition the TRIPS Council has itself established a series of reporting processes concerning specific aspects of members’ IP systems. The operation of these transparency mechanisms in the years since 1995 has yielded a uniquely comprehensive and systematic body of information that now covers some 130 jurisdictions (essentially all WTO members other than LDC members for whom these provisions do not yet apply).
Acknowledgements
Preparation of the Handbook was a collective endeavour by the WTO Intellectual Property Government Procurement and Competition Division drawing on years of practical feedback from technical assistance and training programmes prepared and delivered by the Division in particular the material prepared for the first version of the TRIPS module of WTO eTraining. The former director of the Division Mr Adrian Otten substantively reviewed and enhanced earlier versions of this material.
Introduction to the TRIPS Agreement
This chapter provides an overview of the TRIPS Agreement. It first explains the historical and legal background of the Agreement and its place in the World Trade Organization (WTO). It then turns to the general provisions and basic principles as well as other provisions and institutional arrangements that apply to all the categories of intellectual property rights (IPRs) covered by TRIPS. Chapters II to VIII then discuss each of these categories their essential principles and their administration and enforcement in more detail.
Geographical indications
This chapter explains the provisions of Section 3 of Part II of the TRIPS Agreement entitled ‘Geographical Indications’. A geographical indication (GI) is defined in the TRIPS Agreement as an indication which identifies a good as originating in the territory of a member or a regional locality in that territory where a given quality reputation or other characteristic of the good is essentially attributable to its geographical origin. Typical examples would be ‘Cognac’ for a brandy coming from that region of France and ‘Darjeeling’ for tea coming from that region of India.
Undisclosed information, unfair competition and anti-competitive practices
This chapter deals with the provisions of the TRIPS Agreement that set out standards for protection of undisclosed information including test data (Article 39 of Section 7 in Part II of the Agreement) and measures for the control of anti-competitive practices in licences (Article 40 of Part II of the TRIPS Agreement). It also deals with the suppression of unfair competition a matter which is specifically referred to in Articles 22 (relating to protection of geographical indications) and 39 (relating to protection of undisclosed information) and also arises through the reference in Article 2 of the TRIPS Agreement to the Paris Convention: Article 10bis of that convention sets out general standards for the suppression of unfair competition. As for all sections of Part II these sections have to be read together with the relevant provisions of pre-existing treaties in the area of international IP law which are incorporated by reference into the TRIPS Agreement. Reference will be made to these treaties in the sections below. This chapter will also have to be read in conjunction with other relevant provisions of the TRIPS Agreement explained in other chapters (such as concerning non-discrimination enforcement of IP rights and the administration of IP). Wherever appropriate cross-references are made to other chapters.
Industrial designs and layout-designs of integrated circuits
This chapter deals with the provisions of the TRIPS Agreement that set out standards for protection of industrial designs (Articles 25 and 26 in Section 4 of Part II of the Agreement) and protection of layout-designs or topographies of integrated circuits (Articles 35 to 38 in Section 6 of Part II). As for all sections of Part II these sections have to be read together with the relevant provisions of pre-existing treaties in the area of international IP law which are incorporated by reference into the TRIPS Agreement. Reference will be made to these treaties in the sections below. This chapter will also have to be read in conjunction with other relevant provisions of the TRIPS Agreement that are explained in other chapters (such as those concerning non-discrimination enforcement of IP rights and the administration of IP). Wherever appropriate cross-references are made to other chapters.
Enforcement
The purpose of this chapter is to introduce the key features of the provisions of Part III Sections 1 to 5 of the TRIPS Agreement entitled ‘Enforcement of Intellectual Property Rights’. This Part of the Agreement elaborates in 21 articles the enforcement procedures that members have to make available to permit prompt and effective action against infringements of IPRs covered by the TRIPS Agreement.
A Handbook on the WTO TRIPS Agreement
This Handbook describes the historical and legal background to the TRIPS Agreement its role in the WTO and its institutional framework. It reviews the following areas: general provisions and basic principles; copyright and related rights; trademarks; geographical indications; patents; industrial designs layout-designs undisclosed information and anti-competitive practices; enforcement of IPRs; dispute settlement in the context of the TRIPS Agreement; TRIPS and public health; and current TRIPS issues. It contains a guide to TRIPS notifications by WTO members and describes how to access the official documentation relating to the TRIPS Agreement and related issues. Furthermore it includes the legal texts of the TRIPS Agreement and the relevant provisions of the WIPO conventions referred to in it as well as subsequent relevant WTO instruments and related non-WTO treaties. The new edition covers the public health revision of the Agreement that entered into force in 2017 and provides updates on other recent developments.
Patent-Related Actions taken in WTO Members in Response to the COVID-19 Pandemic
COVID-19 caused by SARS-Cov-2 was declared to be a pandemic by the World Health Organization on 11 March 2020. Since then the issue of the relationship between patent protection and the development of and access to medical treatments and technologies – a longstanding and enduringly important public policy issue – has become central to the debate on the linkages between IP innovation access and public health between stakeholders with divergent interests.
The TRIPS Agreement and COVID-19
The WTO Secretariat has published a new information note about how the global intellectual property (IP) system relates to the COVID-19 pandemic and potential contributions it could make to efforts to address it. The note provides an overview of IP-related measures taken by WTO members and other stakeholders since the start of the crisis.
The policy context for action on innovation and access
This chapter outlines the policy framework for public health intellectual property (IP) international trade and competition focusing on how they intersect with particular emphasis on medical technologies. The framework comprises the human rights dimension of access to medicines; the policy economic and legal features of IP and innovation systems; regulation of medical products; competition policy; and relevant trade policy measures including import tariffs non-tariff measures rules on trade in services government procurement and regional and bilateral free trade agreements (FTAs). In addition it discusses the economics of innovation and access to medical technologies and outlines the interface between genetic resources traditional knowledge and traditional medicine IP and trade.
Medical technologies: the fundamentals
Against the background of the global burden of disease (GBD) and global health risks this chapter outlines the fundamental imperative for collaboration. It demonstrates the need for a coordinated approach taking into account health intellectual property (IP) and trade variables to ensure coherent decision-making in the area of public health at the international regional and domestic levels.
Executive summary
Public health is inherently a global challenge and thus assumes high priority for international cooperation. The World Health Organization (WHO) is the directing and coordinating authority for health but the interaction between health issues and other policy domains human rights development policy intellectual property (IP) and international trade creates a strong rationale for cooperation and coordination between the WHO and other international organizations in particular the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). This study and its updated and reviewed second edition have emerged from an ongoing programme of trilateral cooperation among these agencies. It responds to an increasing demand particularly in developing countries for strengthened capacity for informed policy-making in areas of intersection between health trade and IP focusing on access to and innovation of medicines and other medical technologies. The need for cooperation and coherence at the international level has intensified over the past decades as successive multilateral decisions have confirmed.