The Agreement on Trade-Related Aspects of Intellectual Property Rights
The TRIPS Agreement is the most important intellectual property treaty for all member states of the WTO though it cannot be treated in isolation of other relevant treaties 14. It generally provides for the introduction of intellectual property standards already in place in most developed countries to all member states of the WTO. In other words, it constitutes a common minimum programme acceptable to the main developed countries rather than a compromise between the position of developed and developing countries.
The TRIPS Agreement introduces a set of minimum standards of protection that all countries must respect in regulated areas such as trademark, geographical indications, industrial designs, patents, topographies of integrated circuits and undisclosed information 15. Most developed countries already had standards of protection close to what the TRIPS Agreement requires, and there was, therefore, relatively little they had to do to be in full compliance. For developing countries, however, the situation was and remains quite different. In some cases, certain countries did not have any form of protection in certain fields, such as plants and plant variety, and have, therefore, had to develop entirely new legal frameworks or adopt existing frameworks in place in developed countries. In other cases, countries such as India had specific restrictions on patentability, which had to be removed for TRIPS compliance 16. In yet other cases, legislation existed but was not being implemented 17. In general, the TRIPS Agreement has required significant adjustment from developing countries and will require even more from least developed countries.
The TRIPS Agreement reflects its unusual genesis insofar as while it sets its own minimum standards of protection; it also incorporates the substantive standards from existing WIPO-administered conventions such as the Paris Convention. One of its main innovations in the field of intellectual property is that it brings together different categories of IPR, as discussed earlier. Another novelty in the TRIPS Agreement is that it contains detailed provisions on enforcement such as civil procedures allowing action against infringement, border measures to stop the importation of counterfeit trademark and pirated copyright goods and criminal procedures in the cases of willful trademark counterfeiting or copyright piracy on a commercial scale 18. Further, the TRIPS Agreement is one of the treaties that falls under the dispute settlement system of the WTO, which ensures a much higher degree of compliance than would otherwise be the case.
Notes and References
14 Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakech, 15 April 1994, 33 International Legal Matters 1197 (1994) [hereafter TRIPS Agreement]
15 Article 1, TRIPS Agreement.
16 Section 3, Patents Act 1970.
17 For instance, Seeds and Plant Varieties Act, Laws of Kenya, Chapter 326, adopted in 1972 but only implemented after 1994.
18 Respectively Articles 42, 51 and 61, TRIPS Agreement.