Agreement on Trade-related Aspects of Intellectual Property Rights

Signed on April 15, 1994

 

 

PART I                   GENERAL PROVISIONS AND BASIC PRINCIPLES

 

PART II   STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS

 

                1.         Copyright and Related Rights

                2.         Trademarks

                3.         Geographical Indications

                4.         Industrial Designs

                5.         Patents

                6.         Layout-Designs (Topographies) of Integrated Circuits

                7.         Protection of Undisclosed Information

                8.         Control of Anti-Competitive Practices in Contractual Licences

 

PART III  ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

 

                1.         General Obligations

                2.         Civil and Administrative Procedures and Remedies

                3.         Provisional Measures

                4.         Special Requirements Related to Border Measures

                5.         Criminal Procedures

 

PART IV ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER‑PARTES PROCEDURES

 

PART V  DISPUTE PREVENTION AND SETTLEMENT

 

PART VI TRANSITIONAL ARRANGEMENTS

 

PART VII   INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS

 

Members,

 

                Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

 

                Recognizing, to this end, the need for new rules and disciplines concerning:

 

(a)           the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;

 

(b)           the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights;

 

(c)           the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;

 

(d)           the provision of effective and expeditious procedures for the multilateral prevention and settlement of disputes between governments;  and

 

(e)           transitional arrangements aiming at the fullest participation in the results of the negotiations;

 

                Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;

 

                Recognizing that intellectual property rights are private rights; 

 

                Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;

 

                Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;

 

                Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures;

 

                Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as "WIPO") as well as other relevant international organizations;

 

                Hereby agree as follows:

 

PART I GENERAL PROVISIONS AND BASIC PRINCIPLES

 

Article 1 Nature and Scope of Obligations

 

1.             Members shall give effect to the provisions of this Agreement.  Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.  Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

 

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. 

 

3.             Members shall accord the treatment provided for in this Agreement to the nationals of other Members.[1]  In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those conventions.[2]  Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the "Council for TRIPS").  

 

Article 2 Intellectual Property Conventions

 

1.             In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).

 

2.             Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.

 

Article 3 National Treatment

 

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.

 

2.             Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.

 

Article 4 Most-Favoured-Nation Treatment

 

                With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.  Exempted from this obligation is any advantage, favour, privilege or immunity accorded by a Member:

 

(a)           deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;

 

(b)           granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country; 

 

(c)           in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;

 

(d)           deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.

 

Article 5 Multilateral Agreements on Acquisition or Maintenance of Protection

 

                The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

 

Article 6 Exhaustion

 

                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 7 Objectives

 

                The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

 

Article 8 Principles

 

1.             Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 

 

2.             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.

 

 

PART II STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS

 

SECTION 1:  COPYRIGHT AND RELATED RIGHTS

 

Article 9 Relation to the Berne Convention

 

1.             Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.  However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

 

2.                   Copyright protection shall extend to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such.

 

Article 10 Computer Programs and Compilations of Data

 

1.             Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

 

2.             Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such.  Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

 

Article 11 Rental Rights

 

                In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works.  A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title.  In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.

 

Article 12 Term of Protection

 

                Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.

 

Article 13 Limitations and Exceptions

 

                Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. 

 

Article 14 Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations

 

1.             In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization:  the fixation of their unfixed performance and the reproduction of such fixation.  Performers shall also have the possibility of preventing the following acts when undertaken without their authorization:  the broadcasting by wireless means and the communication to the public of their live performance.

 

2.             Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.

 

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).

 

4.             The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in a Member's law.  If on 15 April 1994 a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders. 

 

5.             The term of the protection available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the calendar year in which the fixation was made or the performance took place.  The term of protection granted pursuant to paragraph 3 shall last for at least 20 years from the end of the calendar year in which the broadcast took place.

 

6.             Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention.  However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.

 

SECTION 2:  TRADEMARKS

 

Article 15 Protectable Subject Matter

 

1.             Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.  Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks.  Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use.  Members may require, as a condition of registration, that signs be visually perceptible.

 

2.             Paragraph 1 shall not be understood to prevent a Member from denying registration of a trademark on other grounds, provided that they do not derogate from the provisions of the Paris Convention (1967). 

 

3.             Members may make registrability depend on use.  However, actual use of a trademark shall not be a condition for filing an application for registration.   An application shall not be refused solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application.

 

4.             The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.

 

5.             Members shall publish each trademark either before it is registered or promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration.  In addition, Members may afford an opportunity for the registration of a trademark to be opposed.

 

Article 16 Rights Conferred

 

1.             The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion.  In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.  The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Members making rights available on the basis of use.

 

2.             Article 6bis of the Paris Convention (196