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Law-ref.org | Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) |
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ARTICLE-1: Nature and Scope of Obligations [go to this ARTICLE]
... 2. For the
purposes of this Agreement, the term "intellectual property"
refers to all categories of intellectual property that are the
subject of Sections 1 through 7 of Part II.
...
ARTICLE-3: National Treatment [go to this ARTICLE]
... 1. Each
Member shall accord to the nationals of other Members treatment no
less favourable than that it accords to its own nationals with regard
to the protection(3)
of intellectual property, subject to the exceptions already provided
in, respectively, the Paris Convention (1967), the Berne
Convention (1971), the Rome Convention or the Treaty on
Intellectual Property in Respect of Integrated Circuits. In respect
of performers, producers of phonograms and broadcasting
organizations, this obligation only applies in respect of the rights
provided under this Agreement. Any Member availing itself of the
possibilities provided in Article 6 of the Berne Convention
(1971) or paragraph 1(b) of Article 16 of the Rome Convention
shall make a notification as foreseen in those provisions to the
Council for TRIPS. ...
ARTICLE-6: Exhaustion [go to this ARTICLE]
... For the
purposes of dispute settlement under this Agreement, subject to the
provisions of Articles 3 and 4 nothing in this Agreement shall
be used to address the issue of the exhaustion of intellectual
property rights. ...
ARTICLE-14: Protection of Performers, Producers of Phonograms [go to this ARTICLE]
... 3. Broadcasting
organizations shall have the right to prohibit the following acts
when undertaken without their authorization: the fixation, the
reproduction of fixations, and the rebroadcasting by wireless means
of broadcasts, as well as the communication to the public of
television broadcasts of the same. Where Members do not grant such
rights to broadcasting organizations, they shall provide owners of
copyright in the subject matter of broadcasts with the possibility of
preventing the above acts, subject to the provisions of the Berne
Convention (1971). ...
... 3. Broadcasting
organizations shall have the right to prohibit the following acts
when undertaken without their authorization: the fixation, the
reproduction of fixations, and the rebroadcasting by wireless means
of broadcasts, as well as the communication to the public of
television broadcasts of the same. Where Members do not grant such
rights to broadcasting organizations, they shall provide owners of
copyright in the subject matter of broadcasts with the possibility of
preventing the above acts, subject to the provisions of the Berne
Convention (1971). ...
ARTICLE-15: Protectable Subject Matter [go to this ARTICLE]
... Protectable Subject Matter ...
ARTICLE-19: Requirement of Use [go to this ARTICLE]
... 2. When
subject to the control of its owner, use of a trademark by another
person shall be recognized as use of the trademark for the purpose of
maintaining the registration. ...
... 3. In the
case of homonymous geographical indications for wines, protection
shall be accorded to each indication, subject to the provisions of
paragraph 4 of Article 22. Each Member shall determine the practical
conditions under which the homonymous indications in question will be
differentiated from each other, taking into account the need to
ensure equitable treatment of the producers concerned and that
consumers are not misled. ...
ARTICLE-24: International Negotiations; Exceptions [go to this ARTICLE]
... 1. Members
agree to enter into negotiations aimed at increasing the protection
of individual geographical indications under Article 23. The
provisions of paragraphs 4 through 8 below shall not be used by
a Member to refuse to conduct negotiations or to conclude bilateral
or multilateral agreements. In the context of such negotiations,
Members shall be willing to consider the continued applicability of
these provisions to individual geographical indications whose use was
the subject of such negotiations. ...
ARTICLE-27: Patentable Subject Matter [go to this ARTICLE]
... Patentable Subject Matter ...
... 1. Subject
to the provisions of paragraphs 2 and 3, patents shall be
available for any inventions, whether products or processes, in all
fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application.(5)
Subject to paragraph 4 of Article 65, paragraph 8 of
Article 70 and paragraph 3 of this Article, patents shall
be available and patent rights enjoyable without discrimination as to
the place of invention, the field of technology and whether products
are imported or locally produced. ...
... 1. Subject
to the provisions of paragraphs 2 and 3, patents shall be
available for any inventions, whether products or processes, in all
fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application.(5)
Subject to paragraph 4 of Article 65, paragraph 8 of
Article 70 and paragraph 3 of this Article, patents shall
be available and patent rights enjoyable without discrimination as to
the place of invention, the field of technology and whether products
are imported or locally produced. ...
ARTICLE-28: Rights Conferred [go to this ARTICLE]
... (a) where the subject matter of a patent is a
product, to prevent third parties not having the owner's
consent from the acts of: making, using, offering for sale, selling,
or importing(6)
for these purposes that product; ...
... (b) where the subject matter of a patent is a process, to prevent
third parties not having the owner's consent from the act of
using the process, and from the acts of: using, offering for
sale, selling, or importing for these purposes at least the product
obtained directly by that process. ...
ARTICLE-31: Other Use Without Authorization of the Right Holder [go to this ARTICLE]
... Where
the law of a Member allows for other use(7)
of the subject matter of a patent without the authorization of the
right holder, including use by the government or third parties
authorized by the government, the following provisions shall be
respected: ...
... (g) authorization for such use shall be liable, subject to adequate
protection of the legitimate interests of the persons so authorized,
to be terminated if and when the circumstances which led to it cease
to exist and are unlikely to recur. The competent authority shall
have the authority to review, upon motivated request, the continued
existence of these circumstances; ...
... (i) the legal validity of any decision relating to the authorization
of such use shall be subject to judicial review or other independent
review by a distinct higher authority in that Member; ...
... (j) any decision relating to the remuneration provided in respect of
such use shall be subject to judicial review or other independent
review by a distinct higher authority in that Member; ...
ARTICLE-34: Process Patents: Burden of Proof [go to this ARTICLE]
... 1. For the
purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28,
if the subject matter of a patent is a process for obtaining a
product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that
any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to
have been obtained by the patented process: ...
ARTICLE-36: Scope of the Protection [go to this ARTICLE]
... Subject
to the provisions of paragraph 1 of Article 37, Members
shall consider unlawful the following acts if performed without the
authorization of the right holder:(9)
importing, selling, or otherwise distributing for commercial
purposes a protected layout-design, an integrated circuit in which a
protected layout-design is incorporated, or an article incorporating
such an integrated circuit only in so far as it continues to contain
an unlawfully reproduced layout-design. ...
... (c) has been subject to reasonable steps under the circumstances, by
the person lawfully in control of the information, to keep it secret. ...
... 3. Each
Member shall enter, upon request, into consultations with any other
Member which has cause to believe that an intellectual property right
owner that is a national or domiciliary of the Member to which the
request for consultations has been addressed is undertaking practices
in violation of the requesting Member's laws and regulations on the
subject matter of this Section, and which wishes to secure compliance
with such legislation, without prejudice to any action under the law
and to the full freedom of an ultimate decision of either Member.
The Member addressed shall accord full and sympathetic consideration
to, and shall afford adequate opportunity for, consultations with the
requesting Member, and shall cooperate through supply of publicly
available non-confidential information of relevance to the matter in
question and of other information available to the Member, subject to
domestic law and to the conclusion of mutually satisfactory
agreements concerning the safeguarding of its confidentiality by the
requesting Member. ...
... 3. Each
Member shall enter, upon request, into consultations with any other
Member which has cause to believe that an intellectual property right
owner that is a national or domiciliary of the Member to which the
request for consultations has been addressed is undertaking practices
in violation of the requesting Member's laws and regulations on the
subject matter of this Section, and which wishes to secure compliance
with such legislation, without prejudice to any action under the law
and to the full freedom of an ultimate decision of either Member.
The Member addressed shall accord full and sympathetic consideration
to, and shall afford adequate opportunity for, consultations with the
requesting Member, and shall cooperate through supply of publicly
available non-confidential information of relevance to the matter in
question and of other information available to the Member, subject to
domestic law and to the conclusion of mutually satisfactory
agreements concerning the safeguarding of its confidentiality by the
requesting Member. ...
... 4. A
Member whose nationals or domiciliaries are subject to proceedings in
another Member concerning alleged violation of that other Member's
laws and regulations on the subject matter of this Section shall,
upon request, be granted an opportunity for consultations by the
other Member under the same conditions as those foreseen in paragraph
3.
...
... 4. A
Member whose nationals or domiciliaries are subject to proceedings in
another Member concerning alleged violation of that other Member's
laws and regulations on the subject matter of this Section shall,
upon request, be granted an opportunity for consultations by the
other Member under the same conditions as those foreseen in paragraph
3.
...
... 4. Parties
to a proceeding shall have an opportunity for review by a judicial
authority of final administrative decisions and, subject to
jurisdictional provisions in a Member's law concerning the importance
of a case, of at least the legal aspects of initial judicial
decisions on the merits of a case. However, there shall be no
obligation to provide an opportunity for review of acquittals in
criminal cases. ...
ARTICLE-43: Evidence [go to this ARTICLE]
... 1. The
judicial authorities shall have the authority, where a party has
presented reasonably available evidence sufficient to support its
claims and has specified evidence relevant to substantiation of its
claims which lies in the control of the opposing party, to order that
this evidence be produced by the opposing party, subject in
appropriate cases to conditions which ensure the protection of
confidential information.
...
... 2. In
cases in which a party to a proceeding voluntarily and without good
reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Member may accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the
information presented to them, including the complaint or the
allegation presented by the party adversely affected by the denial of
access to information, subject to providing the parties an
opportunity to be heard on the allegations or evidence. ...
ARTICLE-44: Injunctions [go to this ARTICLE]
... 1. The
judicial authorities shall have the authority to order a party to
desist from an infringement, inter alia to prevent the entry
into the channels of commerce in their jurisdiction of imported goods
that involve the infringement of an intellectual property right,
immediately after customs clearance of such goods. Members are not
obliged to accord such authority in respect of protected subject
matter acquired or ordered by a person prior to knowing or having
reasonable grounds to know that dealing in such subject matter would
entail the infringement of an intellectual property right.
...
... 1. The
judicial authorities shall have the authority to order a party to
desist from an infringement, inter alia to prevent the entry
into the channels of commerce in their jurisdiction of imported goods
that involve the infringement of an intellectual property right,
immediately after customs clearance of such goods. Members are not
obliged to accord such authority in respect of protected subject
matter acquired or ordered by a person prior to knowing or having
reasonable grounds to know that dealing in such subject matter would
entail the infringement of an intellectual property right.
...
ARTICLE-58: Ex Officio Action [go to this ARTICLE]
... (b) the importer and the right holder shall be
promptly notified of the suspension. Where the importer has lodged
an appeal against the suspension with the competent authorities, the
suspension shall be subject to the conditions, mutatis mutandis,
set out at Article 55; ...
ARTICLE-59: Remedies [go to this ARTICLE]
... Without
prejudice to other rights of action open to the right holder and
subject to the right of the defendant to seek review by a judicial
authority, competent authorities shall have the authority to order
the destruction or disposal of infringing goods in accordance with
the principles set out in Article 46. In regard to counterfeit
trademark goods, the authorities shall not allow the re-exportation
of the infringing goods in an unaltered state or subject them to a
different customs procedure, other than in exceptional circumstances. ...
... Without
prejudice to other rights of action open to the right holder and
subject to the right of the defendant to seek review by a judicial
authority, competent authorities shall have the authority to order
the destruction or disposal of infringing goods in accordance with
the principles set out in Article 46. In regard to counterfeit
trademark goods, the authorities shall not allow the re-exportation
of the infringing goods in an unaltered state or subject them to a
different customs procedure, other than in exceptional circumstances. ...
... 2. Where
the acquisition of an intellectual property right is subject to the
right being granted or registered, Members shall ensure that the
procedures for grant or registration, subject to compliance with the
substantive conditions for acquisition of the right, permit the
granting or registration of the right within a reasonable period of
time so as to avoid unwarranted curtailment of the period of
protection. ...
... 2. Where
the acquisition of an intellectual property right is subject to the
right being granted or registered, Members shall ensure that the
procedures for grant or registration, subject to compliance with the
substantive conditions for acquisition of the right, permit the
granting or registration of the right within a reasonable period of
time so as to avoid unwarranted curtailment of the period of
protection. ...
... 5. Final
administrative decisions in any of the procedures referred to under
paragraph 4 shall be subject to review by a judicial or
quasi-judicial authority. However, there shall be no obligation to
provide an opportunity for such review of decisions in cases of
unsuccessful opposition or administrative revocation, provided that
the grounds for such procedures can be the subject of invalidation
procedures. ...
... 5. Final
administrative decisions in any of the procedures referred to under
paragraph 4 shall be subject to review by a judicial or
quasi-judicial authority. However, there shall be no obligation to
provide an opportunity for such review of decisions in cases of
unsuccessful opposition or administrative revocation, provided that
the grounds for such procedures can be the subject of invalidation
procedures. ...
ARTICLE-63: Transparency [go to this ARTICLE]
... 1. Laws
and regulations, and final judicial decisions and administrative
rulings of general application, made effective by a Member pertaining
to the subject matter of this Agreement (the availability, scope,
acquisition, enforcement and prevention of the abuse of intellectual
property rights) shall be published, or where such publication is not
practicable made publicly available, in a national language, in such
a manner as to enable governments and right holders to become
acquainted with them. Agreements concerning the subject matter of
this Agreement which are in force between the government or a
governmental agency of a Member and the government or a governmental
agency of another Member shall also be published. ...
... 1. Laws
and regulations, and final judicial decisions and administrative
rulings of general application, made effective by a Member pertaining
to the subject matter of this Agreement (the availability, scope,
acquisition, enforcement and prevention of the abuse of intellectual
property rights) shall be published, or where such publication is not
practicable made publicly available, in a national language, in such
a manner as to enable governments and right holders to become
acquainted with them. Agreements concerning the subject matter of
this Agreement which are in force between the government or a
governmental agency of a Member and the government or a governmental
agency of another Member shall also be published. ...
ARTICLE-65: Transitional Arrangements [go to this ARTICLE]
... 1. Subject
to the provisions of paragraphs 2, 3 and 4, no Member shall be
obliged to apply the provisions of this Agreement before the expiry
of a general period of one year following the date of entry into
force of the WTO Agreement. ...
ARTICLE-70: Protection of Existing Subject Matter [go to this ARTICLE]
... 2. Except
as otherwise provided for in this Agreement, this Agreement gives
rise to obligations in respect of all subject matter existing at the
date of application of this Agreement for the Member in question, and
which is protected in that Member on the said date, or which meets or
comes subsequently to meet the criteria for protection under the
terms of this Agreement. In respect of this paragraph and
paragraphs 3 and 4, copyright obligations with respect to
existing works shall be solely determined under Article 18 of
the Berne Convention (1971), and obligations with respect to the
rights of producers of phonograms and performers in existing
phonograms shall be determined solely under Article 18 of the
Berne Convention (1971) as made applicable under paragraph 6 of
Article 14 of this Agreement. ...
... 3. There
shall be no obligation to restore protection to subject matter which
on the date of application of this Agreement for the Member in
question has fallen into the public domain. ...
... 4. In
respect of any acts in respect of specific objects embodying
protected subject matter which become infringing under the terms of
legislation in conformity with this Agreement, and which were
commenced, or in respect of which a significant investment was made,
before the date of acceptance of the WTO Agreement by that Member,
any Member may provide for a limitation of the remedies available to
the right holder as to the continued performance of such acts after
the date of application of this Agreement for that Member. In such
cases the Member shall, however, at least provide for the payment of
equitable remuneration.
...
... 9. Where a
product is the subject of a patent application in a Member in
accordance with paragraph 8(a), exclusive marketing rights shall
be granted, notwithstanding the provisions of Part VI, for a
period of five years after obtaining marketing approval in that
Member or until a product patent is granted or rejected in that
Member, whichever period is shorter, provided that, subsequent to the
entry into force of the WTO Agreement, a patent application has been
filed and a patent granted for that product in another Member and
marketing approval obtained in such other Member.
...