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Aspects of intellectual property rights

This decision ensures effective and appropriate protection for trade-related intellectual property rights, taking into account differences in national legal systems and establishes a multilateral framework of minimum rules to help combat counterfeiting.

ACT

Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994).

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

SUMMARY

The basic principles are those of national treatment and most-favoured-nation treatment. Thus, members of the World Trade Organisation (WTO) must accord the nationals of other members treatment no less favourable than that they accord to their own nationals. Moreover, any advantage granted by a member to nationals of another member must be accorded immediately and unconditionally to the nationals of all other members even if this treatment is more favourable than that accorded to its own nationals.

Standards concerning the availability, scope and use of intellectual property rights

The agreement aims to ensure that adequate rules on the protection of intellectual property are applied in all member countries, on the basis of the basic obligations laid down by the WIPO (World Intellectual Property Organisation) in the various conventions on intellectual property rights (the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, and the Washington Treaty in Respect of Integrated Circuits). Numerous new rules or stricter rules are introduced in fields not covered by the existing conventions or where the existing conventions are inadequate.

With regard to copyright, the members of the WTO must comply with the basic provisions of the Berne Convention for the Protection of Literary and Artistic Works. Computer programs will from now on be protected as literary works. As regards rental rights, authors of computer programmes and producers of sound recordings may authorise or prohibit the commercial rental of their works to the public. A similar exclusive right applies to cinematographic works.

With regard to trademarks, the agreement specifies the types of signs that may benefit from protection as trademarks as well as the minimum rights conferred on their owner. It also lays down the requirements relating to the use of trademarks, the duration of protection, licensing and the assignment of trademarks.

As far as geographical indications are concerned, members of the WTO must provide the means to prevent the use of any indications which mislead the public as to the origin of a product and any use which would constitute an act of unfair competition. The agreement also made provision for additional protection for geographical indications for wines and spirits, even where there is no risk of consumers being misled.

Industrial designs are protected under the agreement for 10 years. Their owners have the right to prevent third parties from making, selling or importing articles embodying a design which is a copy of the protected design.

With regard to patents, members of the WTO have the general obligation to comply with the basic provisions of the 1967 Paris Convention. In addition, the TRIPS Agreement stipulates that it must be possible for all inventions to be protected by a patent for 20 years. Certain inventions may be excluded from patentability if their exploitation is prohibited for reasons of public order or morality. Other authorised exclusions relate to diagnostic, therapeutic and surgical methods for the treatment of humans or animals, as well as plants and animals (other than micro-organisms) and essentially biological processes for the production of plants or animals (other than non-biological and microbiological processes). However, members must provide for the protection of plant varieties either by patents or by a sui generis system.

As regards layout-designs of integrated circuits, WTO members must provide for their protection in accordance with the provisions of the Washington Treaty on Intellectual Property in Respect of Integrated Circuits. The TRIPS Agreement also sets out a number of other provisions, relating in particular to the term of protection.

According to the agreement, trade secrets and technical knowledge that have commercial value must be protected against breaches of confidence and any act contrary to honest commercial practices. Furthermore, anti-competitive practices in contractual licences may be subject to measures on the part of members to prevent and/or control such practices.

Enforcement of intellectual property rights

The laws of the member countries of the WTO must include procedures to ensure that intellectual property rights are respected both by foreign right holders and by their own nationals. These procedures must permit effective action against any act of infringement of these rights. They must be fair and equitable, they must not be unnecessarily complicated or costly, and they must not entail unreasonable time limits. Final administrative decisions may be reviewed by a judicial authority.

The agreement provides details concerning evidence, injunctions, damages, provisional measures and other remedies.

Transition period

With regard to the application of the agreement, developed countries have a period of one year to bring their legislation and practices into line with the agreement. This period is extended to 5 years for developing countries and countries in the process of transformation from a centrally-planned economy to a market economy, and to 11 years for the least-developed countries.

Institutional framework

The agreement created a Council for Trade-Related Aspects of Intellectual Property Rights. It is responsible for monitoring the operation of the agreement, ensuring that members comply with their obligations and affording opportunities for consultations between members.

The settlement of disputes over intellectual property is governed by the dispute settlement procedures adopted following the Uruguay Round negotiations.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal
Decision 94/800/EC

22.12.1994

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OJ L 336 of 23.12.1994

Last updated: 18.05.2011
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