RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/9
15 November 1999
(99-4909)
Original:  English
TECHNICAL NOTE ON THE ACCESSION PROCESS
Note by the Secretariat
Implementation of the WTO Agreement on
Trade-related  Aspects of Intellectual Property Rights (TRIPS)
This document has been prepared in consultation with WTO members and reflects the
development of "standard form" questionnaires in recent accession working parties.  It should assist
acceding governments in the provision of information which will facilitate discussion in their working
party on accession, focussing on TRIPS issues.
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Country
Implementation of the WTO Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
TRIPS Agreement Country
General Obligations IP Agreements to which the country adheres
Compliance with Articles 1 through 12 and
Article 19 of the Paris Convention for the
Protection of Industrial Property in respect of
Parts II, III, and IV of the TRIPS Agreement.
TRIPS Article 2.
Under Paris, Article 1(2), industrial property hasas its object patents, utility models, industrial
designs, trademarks, service marks, trade names,
indications of source or appellations of origin,
and the repression of unfair competition.
In Paris.  Article 1(3), industrial property appliesnot only to industry and commerce proper, but toagricultural and extractive industries and to all
manufactured or natural products, e.g., wines,
grain, tobacco leaf, fruit, cattle, minerals, mineral
waters, beer, flowers, and flour.
Under Paris, Article 2, nationals of Members areto enjoy in other Members the advantages that
their respective laws grant to nationals, and shall
have the same protection and the same legal
remedy against any infringement of their rights ifthey conform to the conditions and formalities
imposed upon the Member's nationals.
Paris.  Article 3, requires that nationals of non-Member countries domiciles or that have "real
and effective" industrial or commercial
establishments in a Member country be treated as
nationals of a Member country.
Under Paris, Article 4.a right of priority is to begiven an applicant for a patent, for registration ofa utility model, an industrial design, or of a
trademark who has filed the equivalent of a
regular national filing under the domestic
legislation of a Member country.  The periods of
priority are to be 12 months for patents and utility
models, and 6 months for industrial designs and
trademarks.  The Article discusses the technicaldetails of granting priority in depth.WT/ACC/9
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TRIPS Agreement Country
Article 4bis states that patents obtained for the
same invention in various members of the ParisUnion are independent of each other.
Article 4ter requires that inventors have the rightto be named as such in the patent.
Under Article 4quater restrictions or limitations
on the sale of a patented product or a product
produced by a patented process cannot be thegrounds for refusing a patent or invalidating one
already issued.  Under Article 5(A)(1),
importation of a patented product manufactured
in a Paris Union country cannot be the basis of
forfeiture of the patent.  Article 5(A)(2) and (3)authorize countries to use compulsory licensing
as a means to prevent abuses, such as the failure
to work, but they may not forfeit a patent unless
the grant of a compulsory license would not be
sufficient to prevent the abuse.  Proceedings forforfeiture or revocation cannot be institute until
two years after the grant of the first compulsory
license.
Article 5(A)(4) prohibits application for acompulsory license for failure to work until four
years have passed since tile application was filed
or three years from date of grant and no
compulsory license is to be granted if the
patentee justifies the failure to work.  Licensesare to be non-exclusive, and may not be
transferred except with the enterprise or goodwill
that exploits the license.  Article 5(B) prohibits
forfeiture of industrial designs for failure to work
or for importing articles corresponding to thosethat are protected.
Article 5(C) prohibits cancellation of a mark forunjustified non-use before a reasonable period of
time has passed and permits the proprietor to use
differing elements that do not diminish the
distinctive character of a mark without
invalidating the registration or diminishing the
protection granted the mark.  Concurrent use of
the mark by co-proprietors is permitted so long asthe public is not mislead.
Under Article 5(D), protection of patents,registered trademarks, and industrial designs
cannotWT/ACC/9
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TRIPS Agreement Country
Article 5bis requires that a grace period of at least
six months be provided for the payment ofmaintenance fees for industrial property, but a
surcharge is permissible.  Countries are
authorized to restore patents that lapsed for non-
payment of fees.
Article 5ter prohibits a Paris Member frommaking use of patented devices aboard a vessel,
aircraft, of land vehicle temporarily or
accidentally in the territory or the Member.
Article 5quater requires that process patentowners have all the rights against an imported
product produced by the patent process that theywould have with respect to products
manufactured at home.
Article 5quinquies requires that Paris Membersprotect industrial designs.
Article 6 makes the conditions for filing and
registration of trademarks subject to domesticlegislation but also makes filing and registration
independent of those in other countries, including
the country of origin.
Article 6bis requires parties, ex officio if legallypossible or at the request of an interested party, to
refuse to register or, for a period of at least 5
years, to cancel the registration of a trademarkconfusingly similar to a well-known mark.  No
time limit is placed on a mark used in bad faith.
Article 6ter requires Members to refuse to
register or to invalidate the registration thatincludes, without authorization, armorial
bearings, flags, state emblems, official signs and
hallmarks, etc.  An exception is provided for
owners of rights acquired in good faith before the
Convention entered into force for that country.
Article 6quater makes the assignment of a markvalid if the portion of the business or goodwill ofthe business together with the exclusive right to
manufacture and sell the goods bearing the mark
are also transferred.
Article 6quinquies requires that trademarks dulyregistered in a Member be accepted for filing in
other Members, with certain reservations, and
establishes the conditions under which a
trademark may be denied registration or may be
invalidated.WT/ACC/9
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TRIPS Agreement Country
Article 6sexties states that Paris Members
undertake" to protect service marks without beingrequired to provide for their registration.
Article 6septies requires that trademark ownersbe able to oppose or request cancellation of a
registration of their trademarks applied for by
their agent or representative without their
authorization "unless the agent or representative
justifies his action.
Article 7 states that the nature of the goods towhich a trademark is applied may in no case be
an obstacle to the registration of the trademark.
(Duplicate language is in TRIPS Article 15.4.)
Article 7bis requires that Members permitregistration of collective marks belonging toassociations the existence of which is not
contrary to the law of the country of origin, even
where the association is not established in the
country where protection is being sought.
Article 8 requires that trade names be protectedby Members without the necessity of registration,
whether or not the names are part of a trademark.
Article 9 requires seizure on importation orexclusion or goods bearing a trademark or trade
name without authorization, unless a country's
laws provide for neither remedy, in which casedomestic actions and remedies must be available.
Article 10 applies the obligation of Article 9 to
the direct or indirect use of false indications of
source of goods, or false indication of theproducer, manufacturer, or merchant of such
goods.
Article 10bis requires Members to provideprotection against unfair competition, including
against acts that create confusion of various kinds
about the goods or activities of a competitor, that
consist of false allegations about a competitor, orthat are apt to mislead the public regarding a
competitor's goods.WT/ACC/9
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TRIPS Agreement Country
Article 10ter requires that Members undertake to
assure to foreign nationals effective legalremedies to repress actions referred to in Articles
9, 10 and 10bis, and to allow federations and
associations representing foreign businesses, on
the basis of reciprocity, to take action in court
and before administrative authorities to represssuch acts.
Article 11 requires that temporary protection.
consistent with domestic legislation, be afforded
to patentable inventions, utility models, industrialdesigns and trademarks in respect of goods
exhibited at official or officially recognized
international exhibitions held in their territory.
Article 12 requires Members to establishindustrial property offices for patents. utility
models, industrial designs and trademarks for the
communication to the public through publicationof a periodic journal of the names of patent
owners with a brief designation of their
inventions, and the reproduction of trademarks.
Article 19 authorizes Members to enter intoseparate and special industrial property
agreements among themselves, so long as those
agreements do not contravene the provisions of
Paris.
National treatment, with exceptions allowed inthe Paris, Berne and Rome Conventions.
Article 3.
Most favoured nation treatment, with enumeratedexceptions.  Article 4.
Copyright and Neighbouring Rights Citation to copyright and related laws
Compliance with Articles I through 21 of the
Berne Convention with the exception of Article
6bis, Article 9.1.
Article 2 defines "literary and artistic works" as"every production in the literary, scientific and
artistic domain whatever may be the mode or
form of its expression," giving examples.
Limitations related to speeches are provided in
Article 2bis.WT/ACC/9
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TRIPS Agreement Country
Article 3 requires that protection be provided to
the works of authors who are nationals of BerneUnion members and to works of nationals of
non-Union countries if those works are published
in a Union member simultaneously with
publication in the non-Union country.
Article 4 requires that protection be providedcinematographic works not falling under Article
3 if the maker has a headquarters or habitual
residence in a Union member and to works of
architecture or artistic works incorporated into abuilding or structure in a Union member.
Article 5 requires that authors enjoy the rightsrequired by Berne and any other rights a country
provides works on a national treatment basis
without being subject to any formalities.
Article 7 requires that the term of protection forcopyright be 50 years following the death of the
author.  Special terms are authorized for
cinematographic works, anonymous or
pseudonymous works, photographic works and
works of applied art.  Article 8 gives authors ofprotected works the exclusive right to make or
authorize the making of translations of the work.
Article 9 requires that authors be given theexclusive right to authorize reproduction of the
work in any manner or form with only limited
exceptions that do not conflict with the normal
exploitation of the work and do not unreasonablyprejudice the legitimate interests of the author.
Articles 10 and 10bis define certain authorized
"free uses of works".
Articles 11, 11bis, and 11ter require that authorsof dramatic, dramatico-musical and musical
works and any translation thereof and authors ofliterary and artistic works, the exclusive right to
authorize the public performance of their works,
including by broadcast, public recitation and any
communication to the public.
Article 12 requires that authors of literary orartistic works have the exclusive right to
authorize adaptations, arrangements and otheralterations of their works.WT/ACC/9
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TRIPS Agreement Country
Article 13 authorizes countries to impose
reservations and conditions on the exclusive rightgranted authors of musical works or written
works that are recorded.
Articles 14 requires that authors of literary andartistic works have the exclusive right to
authorize the cinematographic adaptation and
reproduction of their works and the distribution,
public performance and communication to the
public of the adaptation or reproduction, without
the limitations authorized under Article 13(1).
Article 14bis specifies that a cinematographicwork is to be protected as an original workwithout prejudice to any work that is adapted or
reproduced and the author of the cinematographic
work is to enjoy the same rights as the author of
any other work.
Article 14ter requires "droit de suite" inconnection with subsequent sales works of art
and manuscripts.
Article 15 requires that ownership of a work, forpurposes of litigation, be presumed to be that
which appears on the work in the usual manner.
Article 16 requires that infringing copies of awork be subject to seizure whether domestically
produced or imported.
Article 18 requires that copyright protection beapplied to all works which, at the moment Berne
becomes effective, have not fallen into the public
domain in the country of origin through theexpiry of the term of protection.
Article 19 authorizes Union members to providegreater protection than that required by the
Convention.
Article 20 authorizes Union members to enterinto special agreements among themselves to
provide more extensive rights than those
provided by Berne.
Protect computer programs, whether in source orobject code, as literary works under the Berne
Convention.  Protect compilations of data,
whether in machine readable or other form are to
be protected as intellectual creations if theyconstitute such.  Article 10.WT/ACC/9
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TRIPS Agreement Country
Provide rental rights at least for computer
programs and cinematographic works withcertain exceptions.  Article 11.
Provide a term of protection of fifty years fromthe death of tile author (Berne Article 7.1 and
TRIPS Article 9.1) or, for works the term of
which is not measured by the life of the author, a
term of 50 years from the end of the calendar
year of authorized publication, or, if not
published within fifty years from making, fifty
years from the end of the calendar year ofmaking.  Article 12.
Confine limitations and exceptions to exclusiverights to certain special cases which do not
conflict with a normal exploitation of the work
and do not unreasonably prejudice the right
holder's legitimate interests.  Article 13.
Provide performers with the right for 50 yearsfrom the date of a performance to prevent
unauthorized fixation of their unfixed
performances and of reproductions of such
fixations and to prevent the unauthorizedbroadcast by wireless means and communication
to the public of their live performances.  Article
14.1 and 5.
Provide phonogram producers with the right for50 years from the date of first authorized fixation
to prohibit unauthorized reproduction of their
phonograms, directly or indirectly, and toprohibit rental of copies of their phonograms
once sold or otherwise distributed.  Article 14.2,
.4, and .5.
Providing broadcasting organizations with theexclusive rights for 20 years of fixation,
reproduction of fixations, and rebroadcasting by
wireless means of their  broadcasts and the
communication to the public of broadcasts of
their broadcasts or provide to the owners of thecopyright in the material broadcast the possibility
of exercising such rights.  Article 14.3 and 5.
Trademarks Citation to appropriate law
Provide trademark or service mark protection for
any sign, or combination of signs capable of
distinguishing the goods or services of one
undertaking from those of other undertakings.
Article 15.1WT/ACC/9
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TRIPS Agreement Country
Not deny registration for a mark based solely on
the nature of the goods or services to which atrademark is to be applied.  Article 15.4.
Trademarks must be published before or shortlyafter registration to permit opposition or
opportunity to apply for cancellation.  Article
15.5.
Provide trademark owners the exclusive right toprevent unauthorized use identical or similar
marks for similar goods or services of other
parties if confusion is likely to result.  Article
16.1
Presume confusion where an identical mark isused without authorization on identical goods or
services.  Article 16.1.
Provide protection for well know trademarks andservice marks in accordance with Article 6bis, of
the Paris Convention, even where use is on goods
or services which are not similar to those inrespect of which a trademark is registered if the
latter use would imply a connection with the right
holder or would be likely to damage the right
holder's interests.  Article 16.2 and .3.
Allow only limited exceptions to the rightsconferred by a trademark such as fair use of
descriptive terms.  Article 17.
Provide a period of protection for registration ofat least seven years, renewable indefinitely.
Article 18.
Allow cancellation for non-use only after a periodof three years of uninterrupted non-use unless
valid reasons exist for the non-use, includinggovernment interference with use.  Article 19.1.
No encumbering of the use of a trademark byspecial requirements.  Article 20.
May establish conditions for licensing but
compulsory licensing not permitted and owner of
registered mark must be able to assign it with orwithout transfer of business.  Article 21.WT/ACC/9
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TRIPS Agreement Country
Geographical Indications Citation to appropriate law or laws
Provide means to prevent deceptive use of
Geographical indications identifying location
where a given quality, reputation or othercharacteristic of a good is attributable to its
location.  Article 22.1 and 2.
Refuse to register or invalidate registrations of
trademarks containing geographical indications
except in instances in which such marks have
been used continuously for at least I 0 years or in
good faith before 15 April 1994.  Article 22.3
Protect against use of geographical indicationseven when literally true but which falselyrepresent that the goods originate in another
territory.  Article 22.4
Protect, with certain exceptions, appellations ororigin for wines and spirits even against use
accompanied by expressions such
Protect, with certain exceptions, appellations ororigin for wines and spirits even against use
accompanied by expressions such as 'kind,"
type," "style," etc.  Article 23.1 and 24.
Refuse or invalidate, with certain exceptionstrademark registrations containing geographical
indications for wines and spirits if they do not
originate in the place named.  Article 23.2 and24.
Industrial Designs Citation to appropriate law
Provide, with certain exceptions, protection fornew or original, independently created industrial
designs.  Article 25.1.
Ensure that requirements for securing protectionfor textile designs are not prohibitive of such
protection.  Article 25.2.
Protection should last at least 10 years.WT/ACC/9
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TRIPS Agreement Country
Patents Citation to appropriate law
Provide patents for any inventions, whether
products or processes, in all fields of technology
if they are new, involve an inventive step and areindustrially applicable.  Exceptions are permitted
for plants and animals, except for
microorganisms and non-biological and
microbiological processes.  Exemptions are also
permitted for reasons of ordre public and
morality.  Article 27.
Provide patent owners with the right to preventothers from making, using, offering for sale,
selling or importing a patented product or fromusing a patent process or using, offering for sale,
selling or importing a product produced directly
using such process.  Article 28.1.
Give patent owners the right to assign the rightsin the patent, or transfer the rights by succession,
or license them.  Article 28.2
Require applicants to disclose the invention sothat one skilled in the art can carry it out and may
require indication of the best mode and
information on corresponding foreign
applications.  Article 29.
Ensure that any exceptions to exclusive patentrights do not unreasonably conflict with normalexploitation of the patent and do not
unreasonably prejudice the legitimate interests of
the patent owner, taking third party interests into
account.  Article 30.
Compulsory licenses can be issued only whenenumerated conditions are met, including such
things as notice, remuneration, limitations on use
and transfer of the license, etc.  Article 3 1.
Provide an opportunity for judicial review ofdecisions to revoke or forfeit a patent.  Article 32.
Provide a patent term of at least 20 years from thefiling date.  Article 33.WT/ACC/9
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TRIPS Agreement Country
Shift the burden of proof in process patent
infringement actions to the defendant in instancesin which tile product produced by the process is
new or where it is substantially likely that the
identical product was made using the process and
the patent owner has been unable through
reasonable efforts to determine the process used.Article 34.
Integrated-Circuit Layout Design s Citation to appropriate law
Provide protection for original layout designs of
integrated circuits that are registered or have been
commercially exploited anywhere in the world.
Articles 3, 4, 5, and 7 of the Washington Treatyas incorporated into TRIPS by Article 35.
Make unlawful, except in certain circumstances,the reproduction, importation, sale or other
distribution of a protected layout design or an
integrated circuit embodying such design or an
article containing such a microcircuit.  Article 6
of Washington and Article 36 of TRIPS.
Provide such protection for a term of I 0 yearsfrom the films, of an application for registration
or from first commercial exploitation.  Article 38.
Undisclosed Information Citation to appropriate law or laws
Provide protection for undisclosed information
that is secret (not generally known or readily
ascertainable); has commercial value because of
its secrecy., and has been subject to reasonable
steps to keep it secret.  Article 39.2.Will provide further analysis after reviewing the
appropriate law.
Protect data submitted to obtain marketing
approval for pharmaceutical or agricultural
chemicals utilizing a new chemical entity.Article 39.3.
Enforcement Citation to appropriate law or laws
- General Provisions
Provide for effective action against infringement
of intellectual property rights without creating
barriers to legitimate trade or opportunities for
abuse.  Article 41.1
Provide enforcement procedures that are fair andequitable and are not unnecessarily complicated
or costly and do not entail unreasonable time-limits or unwarranted delays.  Article 41.2WT/ACC/9
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TRIPS Agreement Country
Provide decisions on the merits based upon the
evidence presented in the case to the parties,preferably in writing with the reasons explained.
Article 41.3.
Provide for appeals to judicial bodies of finaladministrative decisions and of at least the legal
aspects of initial judicial decisions on the merits
of a case.  Article 41.4.
Civil and Administrative Procedures andRemedies
Provide a procedure that allows plaintiffs to bringan action for infringement; requires that
defendants be notified; permits both side to
present evidence in support of their position; and
protects confidential information.  Article 42
Authorize judges to order production of evidencenecessary to substantiate a party's claims where
that party has been unable to obtain such
evidence from the opposing party.  Article 43. 1.
Authorize judges to enjoin a defendant, exceptthe government, from infringing intellectualproperty rights.  Article 44. 1.
Authorize judges to order the payment ofmonetary damages adequate to compensate for
the injury done by the infringement.  Article 45.1
Authorize judges to order infringer to pay right
holders enforcement costs and recovery of profitsand/or statutory damages.  Article 45.2.
Authorize additional remedies including seizureof infringing goods, and the materials and
implements the predominant use of which is
infringement.  Article 46.
Authorize indemnification of defendant,including attorneys' fees in the event of abuse by
plaintiffs.  Article 48.1.
Exempt public authorities and officials fromliability in connection with the administration of
intellectual property laws only where the actions
are taken or intended in good faith within the
scope of tile relevant authority.  Article 48.2.
Ensure that administrative remedies conform tothe principles in the preceding Articles.Article 49.WT/ACC/9
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TRIPS Agreement Country
- Provisional Measures
Authorize judges to grant temporary restraining
orders and provisional relief to prevent
infringement and to preserve evidence.Article 50.1.
Authorize judges to require the complaining party
to indemnify the defending party against harm if
the decision on the merits finds the provisionalrelief unjustified.  Article 50.3.
Provide for notice, for formal action by theplaintiff after temporary restraining orders, etc.
Article 50.4+.
- Border Measures
Provide for suspension of release by customsauthorities of goods suspected of bearing a
counterfeit trademark or of being a piraticalcopyrighted work, either at the request of a right
holder.  Members are authorized to extend such
protection to holders of other forms of intellectual
property, Article 51
Require right holders initiating border measuresto provide evidence of a prima facie infringement
and a description of tile goods sufficient forcustoms authorities to recognize them.  The right
holder must be notified within a reasonable time
is action will be taken on his behalf.  Article 52
Authorize authorities to require the right holderrequesting border measures to post a bond
sufficient to protect the defendant and to prevent
abuse.  Article 53
Requires prompt notification of the right holderand the importer when action under Article 51 is
taken.  Article 54
Requires that customs authorities be notifiedwithin a maximum of 20 days of the receipt of
notice that proceedings on the merits have begun
or the suspension is to be revoked.  Article 55
Authorities must be authorized to require theright holder to compensate the importer or owner
of the goods subject to border measures if goodswere wrongfully detained or if proceedings
leading to a decision on the merits are not begun
within tile allotted time.  Article 56.WT/ACC/9
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TRIPS Agreement Country
Right holders must be allowed to inspect the
detained goods in order to substantiate the rightholder's claims.  Importers must be given similar
authority.  Members may give the right holder the
names and addresses of those involved in the
importation when infringement is found to exist.
Article 57.
Establishes the conditions that must be in place ifcustoms authorities are authorized to act ex
officio, including the ability to ask the right
holder for information at any time; therequirement to notify the importer promptly of
the suspension; and the requirement that public
officials be liable if they act in bad faith.
Article 58
Competent authorities must be able to orderdestruction or disposal other than by re-export of
infringing goods where appropriate.  Article 59
Members are authorized to except from bordermeasures small quantities of infringing goods of
a non-commercial nature carried in personal
luggage or shipped in small consignments.Article 60
- Criminal Procedures
Provide criminal procedures and penalties,sufficient to act as a deterrent, for wilfultrademark counterfeiting or copyright piracy on a
commercial scale.  Authorizes extension of
criminal actions to other forms of intellectual
property where infringements are wilful and on a
commercial scale.  Article 61.
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