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:
PROVISIONS AND BASIC PRINCIPLES
and Scope of Obligations
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
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
Members shall accord the treatment provided for in this Agreement
to the nationals of other Members. 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
Convention (1967), the
Convention (1971), the
Convention and the Treaty on Intellectual Property in Respect
of Integrated Circuits, were all Members of the WTO members of those
Any Member availing itself of the possibilities provided in paragraph
5 or paragraph 2 of
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”).
In respect of Parts II, III and IV of this Agreement, Members
shall comply with Articles 1 through 12, and Article 19, of the
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.
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
of intellectual property, subject to the exceptions already provided
in, respectively, the
Convention (1967), the
Convention (1971), the
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
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.
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.
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 are 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.
Multilateral Agreements on Acquisition or Maintenance of Protection
The obligations under Articles
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
For the purposes of dispute settlement under this Agreement,
subject to the provisions of Articles
and 4 nothing in this Agreement shall
be used to address the issue of the exhaustion of intellectual property
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
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.
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.
STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS
1: COPYRIGHT AND RELATED RIGHTS
Relation to the Berne Convention
1. Members shall comply
with Articles 1 through 21 of the
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.
Copyright protection shall extend to expressions and not
to ideas, procedures, methods of operation or mathematical concepts
Programs and Compilations of Data
Computer programs, whether in source or object code, shall
be protected as literary works under the
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.
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.
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
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.
Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations
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
Producers of phonograms shall enjoy the right to authorize
or prohibit the direct or indirect reproduction of their phonograms.
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
The provisions of
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.
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.
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
Convention. However, the provisions of
18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms
Protectable Subject Matter
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.
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
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.
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.
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.
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.
6bis of the Paris
Convention (1967) shall apply, mutatis
mutandis, to services. In determining whether a trademark is
well-known, Members shall take account of the knowledge of the trademark
in the relevant sector of the public, including knowledge in the
Member concerned which has been obtained as a result of the promotion
of the trademark.
Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.
Term of Protection
Initial registration, and each renewal of registration, of
a trademark shall be for a term of no less than seven years. The
registration of a trademark shall be renewable indefinitely.
Requirement of Use
If use is required to maintain a registration, the registration
may be cancelled only after an uninterrupted period of at least
three years of non-use, unless valid reasons based on the existence
of obstacles to such use are shown by the trademark owner. Circumstances
arising independently of the will of the owner of the trademark
which constitute an obstacle to the use of the trademark, such as
import restrictions on or other government requirements for goods
or services protected by the trademark, shall be recognized as valid
reasons for non-use.
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 use of a trademark in the course of trade shall not be
unjustifiably encumbered by special requirements, such as use with
another trademark, use in a special form or use in a manner detrimental
to its capability to distinguish the goods or services of one undertaking
from those of other undertakings. This will not preclude a requirement
prescribing the use of the trademark identifying the undertaking
producing the goods or services along with, but without linking
it to, the trademark distinguishing the specific goods or services
in question of that undertaking.
Licensing and Assignment
Members may determine conditions on the licensing and assignment
of trademarks, it being understood that the compulsory licensing
of trademarks shall not be permitted and that the owner of a registered
trademark shall have the right to assign the trademark with or without
the transfer of the business to which the trademark belongs.
Protection of Geographical Indications
Geographical indications are, for the purposes of this Agreement,
indications which identify a good as originating in the territory
of a Member, or a region or locality in that territory, where a
given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin.
2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:
(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;
(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).
1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like.
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.
3. In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.
4. Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either (a) for at least 10 years preceding 15 April 1994 or (b) in good faith preceding that date.
5. Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:
(a) before the date of application of these provisions in that Member as defined in Part VI; or(b) before the geographical indication is protected in its country of origin;
7. A Member may provide that any request made under this Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Member or after the date of registration of the trademark in that Member provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Member, provided that the geographical indication is not used or registered in bad faith.
8. The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business, except where such name is used in such a manner as to mislead the public.
9. There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.
SECTION 4: INDUSTRIAL DESIGNS
Requirements for Protection
2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.
2. Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
3. The duration of protection available shall amount to at least 10 years.
2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;(b) 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 shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
(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
(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.
2. Members may require an applicant for a patent to provide information concerning the applicant’s corresponding foreign applications and grants.
Exceptions to Rights Conferred
Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Other Use Without Authorization of the Right Holder
Where the law of a Member allows for other use
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:
(a) authorization of such use shall be considered on its individual merits(b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly(c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi-conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive;(d) such use shall be non-exclusive;(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;(f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;(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;(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;(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;(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;
(l) where such use is authorized to permit the exploitation of a patent (“the second patent”) which cannot be exploited without infringing another patent (“the first patent”), the following additional conditions shall apply:
(i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent
(ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and
(iii) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent.
An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.
Term of Protection
The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.
Process Patents: Burden of Proof
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:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.
Relation to the IPIC Treaty
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.
Scope of the Protection
Acts Not Requiring the Authorization of the Right Holder
2. The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.
Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design.
SECTION 7: PROTECTION OF UNDISCLOSED INFORMATION
2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;(b) has commercial value because it is secret; and(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that 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.
2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
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.
SECTION 2: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
Fair and Equitable Procedures
Members shall make available to right holders
judicial procedures concerning the enforcement of any intellectual
property right covered by this Agreement. Defendants shall have the
right to written notice which is timely and contains sufficient detail,
including the basis of the claims. Parties shall be allowed to be
represented by independent legal counsel, and procedures shall not
impose overly burdensome requirements concerning mandatory personal
appearances. All parties to such procedures shall be duly entitled
to substantiate their claims and to present all relevant evidence.
The procedure shall provide a means to identify and protect confidential
information, unless this would be contrary to existing constitutional
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.
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 the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.
Right of Information
Indemnification of the Defendant
1. The judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide to a party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in this Section.
SECTION 3: PROVISIONAL MEASURES
(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance;(b) to preserve relevant evidence in regard to the alleged infringement.
3. The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
5. The applicant may be required to supply other information necessary for the identification of the goods concerned by the authority that will execute the provisional measures.
6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member’s law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.
7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.
SECTION 4: SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
Suspension of Release by Customs Authorities
Members shall, in conformity with the provisions set out below,
enable a right holder, who has valid grounds for suspecting that the
importation of counterfeit trademark or pirated copyright goods
may take place, to lodge an application in writing with competent
authorities, administrative or judicial, for the suspension by the
customs authorities of the release into free circulation of such goods.
Members may enable such an application to be made in respect of goods
which involve other infringements of intellectual property rights,
provided that the requirements of this Section are met. Members may
also provide for corresponding procedures concerning the suspension
by the customs authorities of the release of infringing goods destined
for exportation from their territories.
Security or Equivalent Assurance
1. The competent authorities shall have the authority to require an applicant to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures.
Notice of Suspension
The importer and the applicant shall be promptly notified of the suspension of the release of goods according to Article 51.
Duration of Suspension
Indemnification of the Importer and of the Owner of the Goods
Relevant authorities shall have the authority to order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods or through the detention of goods released pursuant to Article 55.
Right of Inspection and Information
Without prejudice to the protection of confidential information, Members shall provide the competent authorities the authority to give the right holder sufficient opportunity to have any goods detained by the customs authorities inspected in order to substantiate the right holder’s claims. The competent authorities shall also have authority to give the importer an equivalent opportunity to have any such goods inspected. Where a positive determination has been made on the merits of a case, Members may provide the competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee and of the quantity of the goods in question.
Ex Officio Action
Where Members require competent authorities to act upon their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property right is being infringed:
(a) the competent authorities may at any time seek from the right holder any information that may assist them to exercise these powers;(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;(c) Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.
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.
De Minimis Imports
SECTION 5: CRIMINAL PROCEDURES
ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER-PARTES PROCEDURES
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.
4. Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member’s law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles set out in paragraphs 2 and 3 of Article 41.
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.
DISPUTE PREVENTION AND SETTLEMENT
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.
3. Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.
1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.
3. During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process.
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.
3. Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.
4. To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of five years.
5. A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.
Least-Developed Country Members
1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.
INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS
Council for Trade-Related Aspects of Intellectual Property Rights
The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members’ compliance with their obligations hereunder, and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. In carrying out its functions, the Council for TRIPS may consult with and seek information from any source it deems appropriate. In consultation with WIPO, the Council shall seek to establish, within one year of its first meeting, appropriate arrangements for cooperation with bodies of that Organization.
Members agree to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights. For this purpose, they shall establish and notify contact points in their administrations and be ready to exchange information on trade in infringing goods. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods.
Protection of Existing Subject Matter
1. This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question.
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.
5. A Member is not obliged to apply the provisions of Article 11 and of paragraph 4 of Article 14 with respect to originals or copies purchased prior to the date of application of this Agreement for that Member.
7. In the case of intellectual property rights for which protection is conditional upon registration, applications for protection which are pending on the date of application of this Agreement for the Member in question shall be permitted to be amended to claim any enhanced protection provided under the provisions of this Agreement. Such amendments shall not include new matter.
(a) notwithstanding the provisions of Part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).
Review and Amendment
1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.
Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.
Nothing in this Agreement shall be construed:
(a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or(c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
(a) “counterfeit trademark goods” shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation;(b) “pirated copyright goods” shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.