A HANDBOOK ON THE WTO TRIPS AGREEMENT【2025|PDF|Epub|mobi|kindle电子书版本百度云盘下载】

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Ⅰ Introduction to the TRIPS Agreement1

A Introduction1

1 General1

2 Historical and legal background to TRIPS4

3 Place of TRIPS in the World Trade Organization8

4 Overview of TRIPS provisions10

(a) General provisions and basic principles10

(b) Standards concerning the availability,scope and use of intellectual property rights10

(c) Enforcement12

(d) Certain other matters12

B General provisions and basic principles of the TRIPS Agreement12

1 Objectives and principles12

2 Minimum standards agreement13

3 Beneficiaries14

(a) Industrial property14

(b) Copyright15

(c) Performers15

(d) Producers of phonograms15

(e) Broadcasting organizations15

4 National treatment and most-favoured-nation treatment16

5 Exhaustion18

C Procedures for the acquisition and maintenance of intellectual property rights20

D Transitional arrangements and other matters21

1 Transition periods21

(a) Developed countries and non-discrimination (all Members)21

(b) Developing countries and economies in transition21

(c) Least-developed countries22

(d) Acceding countries23

2 Protection of existing subject matter23

(a) Application of the rules23

(b) Additional requirements in respect of pre-existing works and phonograms24

3 Transfer of technology24

4 Technical cooperation25

5 Security exceptions26

E Institutional arrangements26

1 Decision-making procedures27

2 The work of the Council for TRIPS30

(a) Notifications30

(b) Review of national laws and regulations32

(c) Forum for consultations32

(d) Forum for further negotiation or review33

(e) Cooperation with the World Intellectual Property Organization34

Ⅱ Copyright and related rights36

A Introduction36

1 General36

2 What are copyright and related rights?36

3 What is the relationship of the TRIPS Agreement with the pre-existing provisions of the Berne and Rome Conventions?37

B TRIPS provisions on copyright39

1 What is the subject matter to be protected?39

(a) 'Literary and artistic works'39

(Ⅰ) Computer programs39

(Ⅱ) Databases40

(b) Derivative works40

(c) Certain other categories of works41

(d) Certain principles governing eligibility for copyright protection41

(Ⅰ) Idea/expression dichotomy41

(Ⅱ) Originality41

(Ⅲ) Automatic protection42

(Ⅳ) Independence of protection43

2 What are the rights to be conferred on authors?43

(a) General43

(b) Reproduction right44

(c) Rental right44

(d) Rights of public performance,broadcasting and communication to the public44

(e) Rights of translation and adaptation45

(f) Moral rights46

3 What are the permissible limitations and exceptions?46

4 Term of protection48

C TRIPS provisions on related rights51

1 Relevant rights under the TRIPS Agreement52

(a) Performers52

(b) Producers of phonograms52

(c) Broadcasting organizations52

2 Limitations and exceptions53

3 Term of protection53

Ⅲ Trademarks54

A Introduction54

1 General54

2 What is the role of trademarks?54

3 What is the relationship of the TRIPS Agreement with the pre-existing provisions of the Paris Convention?56

B TRIPS provisions on trademarks57

1 What is the subject matter to be protected and what are the conditions for registration?57

(a) Subject matter of trademark protection57

(Ⅰ) Distinctive signs57

(Ⅱ) Trade names59

(Ⅲ) Collective marks and certification marks59

(b) Conditions for registration as a trademark60

(Ⅰ) Priority60

(Ⅱ) Publishing requirement60

(Ⅲ) Reasons which may not constitute grounds for refusal of trademark registrations61

(Ⅳ) Reasons which may constitute grounds for refusal of trademark registrations63

(Ⅴ) Reasons which must constitute grounds for refusal or invalidation of trademark registration in Members63

2 What are the rights to be conferred on trademark owners?66

(a) General66

(b) Trademark rights66

(c) Rights with respect to well-known trademarks69

(d) Licensing and assignment of rights71

(e) Other requirements71

3 What are the permissible exceptions to trademark rights?72

(a) Permissible exceptions72

(b) No compulsory licensing permitted73

4 Term of protection75

Ⅳ Geographical indications76

A Introduction76

1 General76

2 Background76

3 What is the relationship with the pre-existing provisions of the Paris Convention?77

B TRIPS provisions on GIs78

1 What is the subject matter to be protected?78

(a) TRIPS definition of geographical indications78

(b) Elements of the Article 22.1 definition78

(Ⅰ) It is a sign79

(Ⅱ) Function of identification79

(Ⅲ) Subject matter of identification79

(Ⅳ) The geographical origin identified by the geographical indication80

(Ⅴ)Quality,reputation,or other characteristics essentially due to the geographical origin80

(c) Geographical indications,indications of source,rules of origin,appellations of origin and trademarks80

(Ⅰ) Geographical indications and indications of source83

(Ⅱ) Geographical indications and rules of origin83

(Ⅲ) Geographical indications and appellations of origin83

(Ⅳ) Geographical indications,trademarks and certification marks83

(d) Right holders and eligible users84

2 What are the conditions for getting protection?84

3 Protection and rights conferred85

(a) For geographical indications for all goods (Article 22)85

(Ⅰ) Protection against use by others (Article 22.2)85

(Ⅱ) Protection against use as a trademark (Article 22.3)87

(Ⅲ) Factually true but misleading use (Article 22.4)87

(b) Additional protection for geographical indications for wines and spirits (Article 23)88

(Ⅰ) Protection against use by others (Article 23.1)89

(Ⅱ) Protection against use as a trademark (Article 23.2)90

(Ⅲ) Homonymous geographical indications for wines (Article 23.3)90

(Ⅳ) Negotiation of a multilateral register of geographical indications for wines (Article 23.4)90

4 Exceptions and international negotiations91

(a) Exceptions91

(Ⅰ) Generic terms (Article 24.6)91

(Ⅱ) Prior trademark rights (Article 24.5)92

(Ⅲ) Prior use of the geographical indication (Article 24.4)92

(Ⅳ) Time limit to challenge trademarks under Article 22.3 and Article 23.2 (Article 24.7)93

(Ⅴ)Use by a person of his name (Article 24.8)93

(vi) GIs not protected in their country of origin or which have fallen into disuse in their country (Article 24.9)93

(b) International negotiations,review and standstill94

(Ⅰ) International negotiations (Article 24.1)94

(Ⅱ) Standstill (Article 24.3)94

V Patents95

A Introduction95

1 What are patents?95

2 What is the relationship with the pre-existing provisions of the Paris Convention?96

B TRIPS provisions on patents97

1 What is the subject matter to be protected by patents?97

(a) In which areas must inventions be eligible for protection?97

(b) What conditions must inventions meet to be eligible for patent protection?98

(Ⅰ) Novelty,inventive step and industrial applicability98

(Ⅱ) Disclosure100

(Ⅲ) What are the permissible exclusions from patentable subject matter?102

(Ⅳ) Review of Article 27.3(b)104

(Ⅴ)Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore104

2 What are the rights to be conferred on patent owners?105

(a) What are the rights to be conferred on owners of product patents?105

(b) What are the rights to be conferred on owners of process patents?105

(Ⅰ) Rights of process patent owners105

(Ⅱ) Burden of proof106

(c) Non-discrimination with respect to enjoyment of patent rights107

(Ⅰ) The place of invention107

(Ⅱ) The field of technology107

(Ⅲ) Whether products are imported or locally produced107

(d) What other rights do patent owners have?108

3 What are the permissible exceptions to patent rights?108

(a) Limited exceptions108

(b) Compulsory licences109

4 What is the minimum period of protection to be accorded?114

(a) Term of protection114

(b) Revocation115

Ⅵ Industrial designs,layout-designs of integrated circuits,undisclosed information,anti-competitive practices116

A Introduction116

B Industrial designs116

1 What is an industrial design?117

2 What has to be eligible for protection as an industrial design?117

(a) General formalities for the protection of industrial designs118

(Ⅰ) Formalities118

(Ⅱ) Priority118

(b) Provisions regarding formalities for industrial designs in the textile sector118

3 What are the rights to be conferred on an owner of a protected industrial design?119

4 What are the permissible exceptions to the rights conferred?120

5 How long does the protection of an industrial design have to last?120

C Layout-designs (topographies) of integrated circuits121

1 What is a layout-design (topography) of an integrated circuit?121

2 What has to be eligible for protection as a layout-design of an integrated circuit?122

3 What are the rights to be conferred on the owner of a protected layout-design?123

4 What are the permissible limitations and exceptions to the rights conferred?124

(a) Reproduction for private or research purposes124

(b) Parallel creation124

(c) Innocent infringement124

(d) Exhaustion125

(e) Compulsory licensing125

5 How long does the protection of a layout-design have to last?125

D Undisclosed information126

1 Undisclosed information (trade secrets)126

2 Undisclosed test and other data128

E Control of anti-competitive practices in contractual licences129

1 Introduction129

2 Overview of the relevant provisions of the TRIPS Agreement131

Ⅶ Enforcement135

A Introduction135

1 Background135

2 What is IPR enforcement?136

3 Application of basic principles137

4 What is the relationship of the TRIPS Agreement with pre-existing provisions in other conventions and treaties?138

B General obligations138

C Civil and administrative procedures and remedies140

1 Fair and equitable procedures140

2 Evidence141

3 Remedies141

(a) Injunctions141

(b) Damages142

(c) Other remedies142

4 Right of information143

5 Indemnification of the defendant143

D Provisional measures144

1 Why and what type of provisional measures?144

2 Procedural requirements and safeguards against abuse144

E Border measures146

1 Scope and coverage146

(a) Mandatory coverage of pirated copyright goods and counterfeit trademark goods146

(b) Optional coverage147

2 Procedural requirements and safeguards against abuse148

(a) Application,including evidence and description of goods148

(b) Notice of suspension149

(c) Duration of suspension149

(d) Posting of security/payment of compensation149

3 Right of inspection and information150

4 Remedies150

5 Special rules for ex officio action151

F Criminal procedures151

1 Scope and coverage151

2 Remedies151

(a) Measures and intellectual property rights at issue152

(b) Summary of key Panel findings152

G Cooperation and contact points153

1 Cooperation between Members153

2 Contact points154

Ⅷ Dispute prevention and settlement155

A Introduction155

B Dispute prevention and the review of national implementing legislation156

C Dispute settlement157

1 General157

2 Non-violation and situation complaints159

D Description of the dispute settlement procedures161

1 Consultations between the parties161

2 Panel examination163

3 Appellate review163

4 Adoption of the Panel/Appellate report(s) and implementation164

E Experience in the area of TRIPS166

1 A guide to resources176

Ⅸ TRIPS and public health179

A Introduction179

B Doha Declaration on the TRIPS Agreement and Public Health180

1 Concerns that triggered the discussions180

2 Scope180

3 General statements181

4 Clarification of flexibilities181

5 Transfer of technology182

6 Follow-up183

C Paragraph 6 System184

1 The issue184

2 The solution:establishment of the Paragraph 6 System184

3 Description of the System186

(a) Scope and coverage186

(b) Eligible importing Members187

(c) Exporting Members187

(d) Notifications187

(e) Safeguards against diversion188

(f) Avoidance of double remuneration189

(g) The special case of regional trade agreements190

4 Chairman's statement190

5 Domestic implementing legislation191

6 Use of the Paragraph 6 System193

7 Review of the Paragraph 6 System's functioning193

D Access to medicines:the broader picture194

Ⅹ Current TRIPS issues196

A Introduction196

1 Current issues196

2 The mandates for work on TRIPS issues198

B Current issues200

1 Geographical indications200

(a) Background200

(b) The multilateral register for wines and spirits202

(c) Extending the 'higher level of protection' beyond wines and spirits204

2 The 'triplets':biotechnology,traditional knowledge,biodiversity205

(a) Article 27.3(b) review205

(b) Traditional knowledge and folklore206

(c) Relationship between the TRIPS Agreement and the Convention on Biological Diversity207

3 Non-violation complaints210

4 Least-developed countries and TRIPS210

5 The TRIPS Agreement and transfer of technology212

6 Electronic commerce213

C The TRIPS Agreement in other multilateral policy processes214

1 The TRIPS Agreement and public health beyond the World Trade Organization214

2 TRIPS and human rights216

3 TRIPS and development issues217

4 Intellectual property and competition policy218

5 TRIPS and environmental agreements218

Appendix 1 Guide to TRIPS notifications220

A General220

B Relevant notification procedures222

1 Notification of laws and regulations under Article 63.2222

(a) Procedures for the notification of laws and regulations222

(b) Availability of the information received225

2 Notifications of contact points under Article 69226

3 Notification requirements for Members availing themselves of certain possibilities under the TRIPS Agreement227

(a) Articles 1.3 and 3.1227

(b) Article 4(d)228

(c) Article 6ter of the Paris Convention228

(d) Other notification requirements under the Berne Convention and the Rome Convention incorporated by reference into the TRIPS Agreement229

4 Notification requirements for Members making use of the additional flexibilities relating to TRIPS and public health232

5 Notification requirements for developed country Members agreed by the TRIPS Council in the context of Articles 66.2 and 67234

(a) Reports under Article 66.2234

(b) Contact points for technical cooperation and reports under Article 67235

(Ⅰ) Contact points for technical cooperation on TRIPS235

(Ⅱ) Reports under Article 67235

6 Certain other information flows236

(a) Records of reviews of national implementing legislation236

(b) Responses provided in the context of the review of the provisions of the Section on geographical indications under Article 24.2237

(c) Responses provided in the context of the review of the provisions of Article 27.3(b)237

Appendix 2 Guide to TRIPS documents239

A General239

B TRIPS notifications241

C Reviews of national legislation241

D Dispute settlement243

E Reports and decisions243

F Minutes243

G Working documents244

H Documents of the Council for TRIPS in special session245

Annexes246

1 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994247

2 Provisions of the Paris Convention for the Protection of Industrial Property (1967) referred to in the TRIPS Agreement289

3 Provisions of the Berne Convention for the Protection of Literary and Artistic Works (1971) referred to in the TRIPS Agreement308

4 Provisions of the International Convention for the Protection of Performers,Producers of Phonograms and Broadcasting Organizations (the Rome Convention) (1961) referred to in the TRIPS Agreement337

5 Provisions of the Treaty on Intellectual Property in Respect of Integrated Circuits (1989) ('Washington Treaty') referred to in the TRIPS Agreement343

6 Declaration on the TRIPS Agreement and Public Health (2001)350

7 Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (2003)352

8 Decision on Amendment of the TRIPS Agreement (2005)359

9 Decision on Extension of the Transition Period under Article 66 1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products (2002)367

10 Decision on Extension of the Transition Period under Article 66.1 for Least-Developed Country Members (2005)368

Index371