RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/112
8 October 1998
(98-3883)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Questions posed by the European Communities and their Member States
By means of a communication from the Eu ropean Commission, dated 6 October 1998, the
Secretariat has received the following questions posed by the European Communities and their
Member States to Mongolia.
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A. COPYRIGHT AND RELATED RIGHTS
1. Please explain whether and how Mongolia provides full retroactive protection to works,
phonograms and performances from other WTO Members as required by Articles 9.1, 14.6 and 70.2of the TRIPS Agreement, each of which incorporate by reference or rely upon Article 18 of the Berne
Convention.  Please give the date to which such pr otection extends back with respect to each category
of subject-matter.
2. Please clarify whether and how compilations of data are protected under Mongolian copyright
legislation (Article 10 of the TRIPS Agreement).
3. Article 6 of the Copyright Law attributes certain competences to the Intellectual Property
Office e.g. "receiving applications in respect of copyright in works" and "make determinations on
them or granting certificates in respect of works".  Please describe in more detail the responsibilities
of this Office, in particular against the background that the enjoyment and the exercise of copyright
shall not be subject to any formality (Article  9 of the TRIPS Agreement in conjunction with
Article 5(2) of the Berne Convention).
4. Please clarify whether and how Article 11 of the TRIPS Agreement (rental rights with respect
to computer programs and cinematographic work s) is implemented in Mongolian legislation.
5. Article 13 of the Copyright Law provides for the requisition of a work in cases of "immediate
public interest".  Please clarify how "immediate public interest" is interpreted.  Furthermore, please
describe any cases where Article 13 was applied.
6. Article 20 of the Copyright Law provides for the protection of derivative works for a term of
protection of 25 years.  Article 9 of the TRIPS Agreement in conjunction with Article 2(3) of the
Berne Convention states that derivative works i.e., translations, adaptations, arrangements of music
and other alterations of a literary or artistic work shall be protected as original works (i.e. term of
protection 50 years) without prejudice to the copyrigh t in the original work.  Against this background,
please explain in more detail how the term "derivative works" is interpreted and how such works areIP/C/W/112
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protected.  Please also explain how such works relate to the original work under Mongolian Copyright
Law.
7. Article 21.2 of the Copyright Law provides that sound and visual recordings may be used for
a non-commercial purpose without the consent of the right holder.  Please clarify the scope of "non-
commercial purpose" and give some examples.
8. Article 21.4 of the Copyright Law seems to provide for a term of protection of only 25 years
for producers of sound and visual recordings.  However, the TRIPS Agreement foresees in Article 12
a general term of protection of 50 years and more specifically, for producers of sound recordings in
Article 14.5, a term of protection also of 50 years.  Please explain.
9. Please explain how the term "public benefit" in Article 23 of the Copyright Law is interpreted
and applied.
B. TRADEMARKS , GEOGRAPHICAL INDICATIONS AND INDUSTRIAL DESIGNS
1. Trademarks
1. Article 3 ("Definition") of the Trademark Law does not mention combinations of colours as
possible trademarks.  Please explain how this complies with Article 15 of the TRIPS Agreement,
which expressly includes such types of trademarks in the scope of protection.
2. In Article 4.2 (iv) of the Trademark Law it is stated that "a thing which may lead to wrong
way" is not considered as being a trademark.  Please clarify what is meant by this.
3. Please explain whether and how Mongolian legislation implements Article 16.2 and 16.3 of
the TRIPS Agreement which provides for a specific (enhanced) protection of well-known marks
beyond what is covered by the Paris Convention.
4. It appears that Article 11 of the Trademark Law provides for a term of protection of 20 years
(ten + ten) at the most.  Please explain how this complies with Article 18 of the TRIPS Agreement,
which states that "the registration of a trademark shall be renewable indefinitely".
5. Please clarify whether, under Mongolian legislation, the owner of a registered mark has the
right to assign the mark with or without the transfer of the business to which it belongs (Article 21 of
the TRIPS Agreement).
2. Geographical indications
6. Please explain in detail whether and how Part II, Section 3 of the TRIPS Agreement is
implemented in Mongolian legislation.
3. Industrial designs
7. Please explain in detail whether and how Articl e 25.2 (protection of textile designs) of the
TRIPS Agreement is implemented in Mongolian legislation.IP/C/W/112
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C. PATENTS , LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS AND PROTECTION OF
UNDISCLOSED INFORMATION
1. Patents
1. Article 3.1 of the Patent Law defines an "invention as an absolutely new solution that relates
to a product or process, that has been created for the first time, and the essence of which depends uponthe basis of a law of nature".  Against the background of this latter condition, please explain how it is
interpreted and how the term "invention" relates to "discovery".
2. The Patent Law provides for the protection of  inventions and innovations.  Please clarify how
the two relate to each other (on the basis of concrete examples, if possible).  Furthermore, Article 4.1
of the Patent Law states that "a patent shall be granted to the author of an invention".  Article 17 of the
Patent Law describes the "rights of patent owners".  Nevertheless, Article 15 of the Patent Lawprovides for the "rights of creators of inventions".  Article 19 of the Patent Law seems to distinguish
as well between the exploitation of a patented invention and an invention (by concluding a licence
contract).  Against this background, please clarify and explain the relationship between a "patent" and
an "invention" including its legal consequences.
3. Article 4.5(5) of the Patent Law excludes from patentability the "prophylaxis of human and
animal diseases".  Please explain how this is interpreted and applied (on the basis of concrete cases, if
possible).
4. Article 4.5(6) of the Patent Law excludes from patentability "plant varieties".  Article 27.3(b)
of the TRIPS Agreement states that "Members shall provide for the protection of plant varieties either
by patents or by an effective sui generis  system or by any combination thereof".  Please explain
whether and how plant varieties are protected under Mongolian legislation.
5. Article 20 of the Patent Law sets out certain criteria for the granting of compulsory licences.
However, Article 31 of the TRIPS Agreement does not seem to be implemented in its totality.  Please
explain.
6. Please explain whether and how Article 34 (reversal of the burden of proof in case of process
patents) of the TRIPS Agreement is implemented in Mongolian legislation.
2. Layout-designs (topographies) of integrated circuits
7. Please explain whether and how Part II, Sectio n 6 of the TRIPS Agreement is implemented in
Mongolian legislation.
3. Protection of undisclosed information
8. Please explain whether and how Part II, Sectio n 7 of the TRIPS Agreement is implemented in
Mongolian legislation.
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