WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/ACC/AFG/8 
28 October 2011  
 
(11-5449) 
Working Party on the Accession of 
the Islamic Republic of Afghanistan Original:   English 
 
 
 
ACCESSION OF AFGHANISTAN 
 
Implementation of the WTO Agreement On Trade-Related Aspects 
of Intellectual Property Rights (TRIPS) 
 
  
 The following submission, dated 18 October 2011, is being circulated at the request of the 
Delegation of the Islamic Republic of Afghanistan. 
 
 
_______________ 
 
  
  WT/ACC/AFG/8 
Page 2  
TRIPS Agreement Afghanistan 
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 Article 2 of the 
TRIPS Agreement. See detailed comments related to individual provisions of the Paris Convention, below. 
Under Paris, Article 1(2), industrial propert y has as its object patents, utility models, 
industrial designs, trademar ks, service marks, trade names, indications of source or 
appellations of origin, and the repression of unfair competition. Trademarks, service marks and patents are protected under existing laws, which are in 
the process of amendment for TRIPS Ag reement compliance.  TRIPS-compliant 
legislation addressing all other areas covered under that agreement is under 
development. 
In Paris, Article 1(3), industrial property  applies not only to industry and commerce 
proper, but to agricultural 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. Article 7 of the trademark law applies the law to owners of co mmercial, industrial, 
telecommunications, agricultural, professional or service organizations in Afghanistan, 
whether domestic or foreign. 
 Chapter 2 of the Patent Law is being amende d to clarify that Law's applicability in all 
fields of technology.  A current exclusio n for drug formulae will be deleted under 
pending amendments.  
Draft legislation on geographical indications has been developed.  It does not apply to 
wines for religious reasons.   
Draft legislation on industrial designs has been developed, and applies generally.  
Under Paris, Article 2, nationals of Me mbers are to 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 if they 
conform to the conditions and formalities imposed upon the Member's nationals. The drafts and existing industrial property laws, provide to foreign persons or entities 
treatment no less favorable than that accorded to nationals.  
Paris.  Article 3, requires that nationals of non-Member countries domiciles or that 
have "real and effective" indu strial or commercial establishments in a Member country 
be treated as nationals of a Member country. The trademark and patent laws, as well as draft laws on geographical indications and 
industrial designs, make no distinction between applicants or rightholders based on nationality. 
Under Paris, Article 4.a right of priority is to be given an applicant for a patent, for 
registration of a 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 technical details of granting priority in depth. Article 10 of the trademark law generally reco gnizes priority rights based on qualifying 
foreign trademark applications.  More deta iled provisions related to Paris Convention 
Article 4, including Article 62(3) of the TR IPS Agreement requirement that Article 4 of 
the Paris Convention be applied to servi ce marks, will be enacted by regulation. 
 With regard to patents, a new provision at Article 8 of the patent law will provide for 
rights of priority in accordance with  Article 4 of the Paris Convention. 
 The draft Law "On Industrial Designs" so provides at Article 11.  
Article 4 bis states that patents obtained for the same invention in various members of 
the Paris Union are independent of each other. The Patent Law contains no provision to the contrary.  
Article 4 ter requires that inventors have the right to be named as such in the patent. Article 12 of the Patent Law meets this requirement.   
   WT/ACC/AFG/8
 Page 3Under Article 4quater restrictions or limitations on the sale of a patented product or a 
product produced by a patented process cannot be the grounds for refusing a patent or 
invalidating one already issued.   The Patent Law contains no provision in contravention of this requirement.  
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 licensi ng 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 
licence would not be sufficient to prevent the abuse.  Proceedings for forfeiture or revocation cannot be institute until two years after the grant of the first compulsory 
license. The Patent Law, including pending amendm ents at Article 46(1), provides for 
cancellation for failure to work only afte r a compulsory licence has proven an 
insufficient remedy.  Under the same amended article, cancellation proceedings may 
not be instituted until two years after the grant of the first compulsory license. 
Article 5(A)(4) prohibits application for a compulsory licence for failure to work until 
four years have passed since tile application wa s filed or three years from date of grant 
and no compulsory licence is to be granted if the patentee justifies the failure to work.  
Licenses are 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 those that are 
protected. With regard to patents, see comments to Ar ticle 31 of the TRIPS Agreement, below. 
 The draft Law "On Industrial Designs" does not provide for forfeiture on grounds 
prohibited by the Paris Convention. 
Article 5(C) prohibits cancellation of a mark for unjustified 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 as the public is not mislead. See comments to Article 19 of the TRIPS Agreement, below.  
Under Article 5(D), protection of patents, registered trademarks, and industrial designs 
cannot Neither the Trademark Law, the Patent La w, nor the draft Industrial Designs Law 
requires any indication of registration, deposit or the like as a condition to recognition 
of the right to protection.  
Article 5 bis requires that a grace period of at l east six months be provided for the 
payment of maintenance fees for industrial property, but a surcharge is permissible.  
Countries are authorized to restore patent s that lapsed for no n-payment of fees. New language to be added to Article 34 of the Trademark Law sets the foundation for 
regulations in compliance with this requirement. 
 
Article 48 of the Patent Law indicates that pa rticulars relating to fees shall be set under 
a separate regulation.  This requirement w ill be taken into account as fee rules are 
promulgated.  
 The draft Law "On Industrial Designs" pr ovides for the required grace period at 
Article 23.  
Article 5 ter prohibits a Paris Member from making use of patented devices aboard a 
vessel, aircraft, of land vehicle temporarily  or accidentally in the territory or the 
Member. Article 33(3) of the Patent Law meets the requirements of Article 5 ter of the 
Paris Convention. 
Article 5 quater  requires that process patent owners have all the rights against an 
imported product produced by the patent process that they would have with respect to 
products manufactured at home. Pending amendments to Article 33(2) of the Patent Law include process patent 
protection in accord with Article 28(1)(b) of the TRIPS Agreement. 
Article 5quinquies requires that Paris Members protect industrial designs. The draft law on industrial designs provides for suc h protection in compliance with the 
Paris Convention and the TRIPS Agreement.   
  WT/ACC/AFG/8 
Page 4 Article 6 makes the conditions for filing a nd registration of trademarks subject to 
domestic legislation but also makes filing and registration independent of those in other 
countries, including the country of origin. The Trademark Law sets out conditions fo r filing and registration of marks, but 
contains no provision for refusal or invalidation of a filing by a foreign national on the 
ground that filing has not been effected in the country of origin.  The Law treats 
national registrations as independent of those in other countries.  
Article 6 bis requires parties, ex officio  if legally possible or at the request of an 
interested party, to refuse to register or, fo r a period of at least 5 years, to cancel the 
registration of a trademark confusingly similar to a well-known mark.  No time limit is 
placed on a mark used in bad faith. Compliant provisions will be introduced under pending amendments to Articles 8, 9, 25 
and 30 of the Trademark Law.   
Article 6 ter requires Members to refuse to register or to invalidate the registration that 
includes, without authorization, armorial bear ings, 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 8 of the Trademark Law prohibits the registration or use of such signs as marks. 
 
Article 6 quater  makes the assignment of a mark valid if the portion of the business or 
goodwill of the business together with the exclusive right to manufacture and sell the 
goods bearing the mark ar e also transferred.   Under Article 17 of the Trademark Law,  trademark transfers are valid upon 
registration. 
Article 6 quinquies  requires that trademarks duly re gistered 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.   Article 10 of the Trademark Law generally permits registrations based on foreign 
filings, and regulations will regulate such registrations in detail.  
Article 6 sexties  states that Paris Members undertak e" to protect service marks without 
being required to provide for their registration. See comments to Articles 15 and 16  of the TRIPS Agreement, below. 
Article 6 septies  requires that trademark owners be able to oppose or request 
cancellation of a registration of their trad emarks applied for by their agent or 
representative without their authorization "u nless the agent or representative justifies 
his action. Article 15 of the trademark law provides that an agent of a markholder may not register 
the mark in his name without the permission of the markholder.  
 
Article 7 states that the nature of the goods  to which a trademark is applied may in no 
case be an obstacle to the registration of the trademark. (Duplicate language is in 
Article 15.4 of the TRIPS Agreement.) The Trademark Law contains no provision in contravention of this prohibition. 
Article 7 bis requires that Members permit registration of collective marks belonging to 
associations the existence of which is not co ntrary to the law of the country of origin, 
even where the association is not establishe d in the country where protection is being 
sought. Compliant provisions will be introduced under pending amendments to Articles 3 and 6 
of the Trademark Law.  
Article 8 requires that trade names be protected by Members without the necessity of 
registration, whether or not the names are part of a trademark. Article 8(10) of the Trademark Law prohibits the registration or use as a trademark of a 
designation which contains a "forged trade name". 
Article 9 requires seizure on importation or exclusion or goods bearing a trademark or trade name without authorization, unless a co untry's laws provide for neither remedy, in 
which case domestic actions and remedies must be available. See comments to TRIPS Agreement Articles on border measures, below.  
Article 10 applies the obligation of Article 9 to the direct or i ndirect use of false 
indications of source of goods, or false indication of the producer, manufacturer, or merchant of such goods. Article 8(10) of the Trademar k Law prohibits the registration or use of marks "which 
contain false or deceptive information as  to the origin, source, or any other 
characteristics of the good s, products or services."   
   WT/ACC/AFG/8
 Page 5Article 10 bis requires Members to provide protection against unfair competition, 
including against acts that create confusio n of various kinds about the goods or 
activities of a competitor, that consist of fals e allegations about a competitor, or that are 
apt to mislead the public regarding a competitor's goods. Appropriate legislation on unfair competition is under development. 
Article 10 ter requires that Members undertake to assure to foreign nationals effective 
legal remedies to repress actions re ferred to in Articles 9, 10 and 10 bis, and to allow 
federations and associations representing foreign businesses, on the basis of reciprocity, 
to take action in court and before administrative authorities to repress such acts.   See comments to TRIPS Agreement enforcement provisions, below.  
Article 11 requires that temporary protection.  consistent with domestic legislation, be 
afforded to patentable inventions, utility models, industrial designs and trademarks in 
respect of goods exhibited at official or officially recognized international exhibitions 
held in their territory. Appropriate regulations will be developed purs uant to Article 35 of the Trademark Law 
and Article 49 of the Patent Law.   
 
The draft Law "On Industrial Designs" so provides at Article 22. 
Article 12 requires Members to establish indu strial property offices for patents. utility 
models, industrial designs and trademarks for the communication to the public through 
publication of a periodic journal of the names of patent owners with a brief designation 
of their inventions, and the reproduction of trademarks. Dedicated units within the Ministry of Co mmerce and Industry pe rform the required 
functions. 
Article 19 authorizes Members to enter into separate and special industrial property agreements among themselves, so long as those agreements do not contravene the 
provisions of Paris. The Islamic Republic of Afghanistan is not party to any special industrial property 
agreements. 
National treatment, with exceptions allowed in the Paris, Berne and Rome Conventions.  Article 3. Pending amendments to Article 47 of the Copyright Law define applicability in accord 
with the Berne Convention, and provide protection on a national treatment basis.   
 
The Trademark Law, including pending amendments, does not accord less favorable treatment to any foreign persons or entities than it accords to nationals. 
 
The Patent Law, including pending amen dments, does not accord less favorable 
treatment to any foreign persons or entities than it accords to nationals. 
 
The draft Laws "On Geographical Indications" and "On Industrial Designs" do not accord less favorable treatment to any fore ign persons or entities than they accord to 
nationals.  
  WT/ACC/AFG/8 
Page 6 Most favoured nation treatment, w ith enumerated exceptions.  Article 4. The Copyright Law does not discriminate among foreign p ersons or entities. 
The Trademark Law, including pending amendments, does not grant any special 
advantage, favour, privilege or immunity to the nationals of any country, although 
Article 10 provides for international prior ity arrangements for trademark filings on a 
reciprocal basis. 
 
The Patent Law does not discriminate among foreign persons or entities, although a new provision at Article 8 of the patent law will provide for treaty-based rights of 
priority in accordance with Article 4 of the Paris Convention.  
 The draft Laws "On Geographical Indications" and "On Industrial Designs" do not 
discriminate among foreign persons or entities. 
Copyright and Neighbouring Rights Cita tion to copyright and related laws 
Compliance with Articles I through 21 of the Berne Convention with the exception of 
Article 6bis, Article 9.1. See detailed comments related to individual provisions of the Berne Convention, 
below. 
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 2 bis. Compliant provisions will be introduced under pending amendments to Article 6 of the 
Copyright Law.   
Article 3 requires that protection be provided  to the works of authors who are nationals 
of Berne Union 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.   Compliant provisions will be introduced under pending amendments to Article 47(1) of 
the Copyright Law. 
Article 4 requires that protection be provided cinematographic 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 in corporated into a building or structure in a 
Union member. Compliant provisions will be introduced under pending amendments to Article 47(1) of 
the Copyright Law. 
Article 5 requires that authors enjoy the rights required by Berne and any other rights a country provides works on a national treatment basis without being subject to any 
formalities. Pending amendments to Article 47 of the Copyright Law define applicability in accord 
with the Berne Convention, and provide protection on a national treatment basis. 
Copyright registration procedures are provided under Article 7 of the Copyright Law, 
but are optional. 
Article 7 requires that the term of protection for copyright be 50 years following the death of the author.  Special terms are authorized for cine matographic works, 
anonymous or pseudonymous works, photographic works and works of applied art.   
 Article 8 gives authors of protected works th e exclusive right to make or authorize the 
making of translations of the work. Compliant provisions will be introduced under pending amendments to Articles 16 and 
17 of the Copyright Law, renumbered in the revised version of the law as Articles 15 
and 16, respectively. 
 Under pending amendments to Article 9 of the Copyright Law, authors or other owners 
of copyrights have exclusive rights to prepare derivative works, or to authorize or 
prohibit it such preparation; under pending  amendments to Article 3(5) of the 
Copyright law, derivative works are defined as including translations. 
Article 9 requires that authors be given the exclusive 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 unreasonably prejudice the legitimate 
interests of the author. Under pending amendments to Article 9 of the Copyright Law, the reproduction right 
as required under Article 9 of the Berne Convention will be incorporated.    
   WT/ACC/AFG/8
 Page 7Articles 10 and 10 bis define certain authorized "free uses of works". Article 40 of the Copyright Law permits reproduction or short works or extract s of 
works for teaching purposes, under limited cond itions.  In general, the scope of fair use 
is limited under the amended Copyright Law. 
Articles 11, 11 bis, and 11 ter require that authors of dramatic, dramatico-musical and 
musical works and any translation thereof and authors of literary and artistic works, the exclusive right to authorize the public pe rformance of their works, including by 
broadcast, public recitation and any communication to the public. Under pending amendments to Article 9 of the Copyright Law, the public performance, 
broadcast, recitation and public communication rights required under Articles 11, 11 bis 
and 11 ter of the Berne Convention will be incorporated.   
Article 12 requires that authors of literary or artistic works have the exclusive right to 
authorize adaptations, arrangements and other alterations of their works. Under pending amendments to Article 9 of the Copyright Law, the rights regarding 
various derivative works as required under Article 12 of the Berne Convention will be incorporated. 
Article 13 authorizes countries to impose reservations and conditions on the exclusive 
right granted authors of musical works or written works that are recorded. Article 25 of the Copyright Law, including pending amendments, covers rights in 
certain musical works, in a manner consistent with these requirements. 
Articles 14 requires that authors of literary  and artistic 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). Under pending amendments to Article 9 of the Copyright Law, Article 14 of the Berne 
Convention rights will be incorporated. 
Article 14 bis specifies that a cinematographic work is to be protected as an original 
work without 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. Such works are protected as a udiovisual works under Articles 3, 6, 26, 28 and 46 of the 
Copyright Law, some of which are under amendment. 
Article 14 ter requires "droit de suite" in connection with subsequent sales works of art 
and manuscripts. Droits de suite  are introduced under pending amendments to Article 13 of the 
Copyright Law. 
Article 15 requires that ownership of a work, for purposes of litigation, be presumed to 
be that which appears on the work in the usual manner. Compliant provisions will be introduced under pending amendments to Article 10 of 
the Copyright Law. 
Article 16 requires that infringing copies of a work be subject to seizure whether 
domestically produced or imported.   See comments to Article 46 of the TRIPS Agreement, below. 
Article 18 requires that copyright protectio n be applied to all works which, at the 
moment Berne becomes effective, have not fallen into the public domain in the country of origin through the expiry of the term of protection. Article 34 of the Copyright Law, including pending amendments, addresses this 
provision. 
Article 19 authorizes Union members to provi de greater protection than that required 
by the Convention. No provision of the Copyright Law contravenes this Berne Convention provision. 
Article 20 authorizes Union members to enter into special agreements among 
themselves to provide more extensive rights than those provided by Berne. Afghanistan commits to providing rights in accord with Articles 3 and 4 of the TRIPS 
Agreement. 
Protect computer programs, whether in source or object 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 they constitute such.  
Article 10. Computer programs are protected under Article 6 of the Copyright Law.  Compilations 
of data in machine-readable or other form are defined under pending amendments to 
Article 3(10) of the Copyright Law, and protected under Article 6. 
Provide rental rights at least for computer  programs and cinematographic works with 
certain exceptions.  Article 11. Such rental rights shall be protected under pending amendments to Article 9 of the 
Copyright Law.  
  WT/ACC/AFG/8 
Page 8 Provide a term of protection of fifty years fro m the death of tile author (Article 7.1 of 
the Berne Convention and Article 9.1 of the TRIPS Agreement) 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 of making.  Article 12. Compliant provisions shall be introduced at Article 17 of the Copyright Law, 
renumbered in the revised Law as Article 16. 
Confine limitations and exceptions to exclusiv e rights 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.   Article 43 of the Copyright Law, covering performance of certain works by musical 
bands of armed forces, is under amendment to comply with the three-step test of 
Article 13.  Other exceptions in the law comply with Article 13.   
Provide performers with the right for 50  years from the date of a performance to 
prevent unauthorized fixation of their unfixed performances and of reproductions of 
such fixations and to prevent the unauthorized broadcast by wireless means and 
communication to the public of their live performances.  Article 14.1 and 5.  Rights of performers required under Article 14(1) of the TRIPS Agreement shall be 
introduced under amendments to Article 22 of the copyright law, renumbered in the 
revision as Article 21(1).  The protection period required under Article 14(5) of the 
TRIPS Agreement shall be provided under pending amendments to new Article 21(2) of the Copyright Law. 
Provide phonogram producers with the right for 50 years from the date of first 
authorized fixation to prohibit unauthorized reproduction of their phonograms, directly 
or indirectly, and to prohibit rental of copies of their phonograms once sold or otherwise distributed.  Article 14.2, .4, and .5. The exclusive rights of producers of phonograms required under Article 14(2) of the  
TRIPS Agreement shall be provided under amendments to Article 15 of the Copyright 
Law, renumbered in the revision as Article 22.  The rental right required under Article 14(4) of the TRIPS Agreement shall be provided under pending amendments to 
Article 15 of the Copyright Law, renumbered as  Article 22 of that Law.  The protection 
period required under Article 14(5) of the TRIPS Agreement shall be provided under pending amendments to new Article 22(2) of the Copyright Law. 
Providing broadcasting organizations with the exclusive rights for 20 years of fixation, reproduction of fixations, and rebroadcasting by wireless means of their  broadcasts and the communication to the public of broadcas ts of their broadcasts or provide to the 
owners of the copyright in the material broadcast the possibility of exercising such 
rights.  Article 14.3 and 5. The exclusive rights of broadcasting organizations shall be provided under amendments 
to Article 21 of the copyright law, renumbe red in the revision as Article 20.  The 
protection period required under Article 14(5) of the TRIPS Agreement shall be 
provided under pending amendments to Article 19 of the Copyright Law, renumbered 
as Article 18. 
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 15.1 Compliant provisions, based closely on Artic le 15(1) of the TRIPS Agreement, will be 
introduced under pending amendments to Article 3 of the trademark law.  
Not deny registration for a mark based solely on the nature of the goods or services to 
which a trademark is to be applied.  Article 15.4. The Trademark Law contains no provision in contravention of this provision.   
 
Trademarks must be published before or s hortly after registration to permit opposition 
or opportunity to apply for cancellation.  Article 15.5. Article 18 of the Trademark Law requires the owner of a trademark to present his 
trademark for publication in the Official Gazette within 15 days of registration.  
Furthermore, pending amendments to Article 30 ensure adequate time post-publication 
for objections to registration.  
Provide trademark owners the exclusive right to prevent un authorized use identical or 
similar marks for similar goods or services of other parties if confusion is likely to 
result.  Article 16.1 Compliant provisions, based closely on Artic le 16(1) of the TRIPS Agreement, will be 
introduced under pending amendments to Article 8 of the Trademark Law.  
Presume confusion where an identical mark is used without authorization on identical 
goods or services.  Article 16.1. A provision based closely on this TRIPS requirement will be introduced under pending 
amendments to Article 31 of the Trademark Law.   
   WT/ACC/AFG/8
 Page 9Provide protection for well know trademarks  and service marks in accordance with 
Article 6bis, of the Paris Convention, even wh ere use is on goods or  services which are 
not similar to those in respect of which a tr ademark 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. Compliant provisions will be introduced under pending amendments to Articles 9 
and 25 of the Trademark Law.  
Allow only limited exceptions to the rights co nferred by a trademark such as fair use of 
descriptive terms.  Article 17. The Trademark Law's exceptions do  not exceed this limitation. 
Provide a period of protection for registration of at least seven years, renewable 
indefinitely.  Article 18. Compliant provisions will be introduced under pending amendments to Article 20 of 
the Trademark Law.  
Allow cancellation for non-use only after a pe riod of three years of uninterrupted non-
use unless valid reasons exist for the non-use, including government interference with 
use.  Article 19.1. Compliant provisions will be introduced under pending amendments to Article 22 of 
the Trademark Law. 
No encumbering of the use of a trademark by special requirements.   Article 20. The Trademark Law does not violate this provisio n. 
May establish conditions for licensing but compulsory licensing not permitted and 
owner of registered mark must be able to assign it with or without transfer of business.  Article 21. The Trademark Law does not permit compulsory  licensing of trademarks.  Article 17 of 
the Law permits the transfer of trademarks, w ith no requirement as to the transfer of 
business.  
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 other characteristic 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 The draft Law "On Geographical Indicatio ns" incorporates this definition at 
Article 3(3), and prohibits improper use of  such indications at Articles 23 and 24.   
 
 
Article 8(8) of the Trademark Law generally  prohibits the use or registration of 
geographical names where their use may cause confusion as to the origin or source of 
the goods, products or services.  In ad dition, Article 23(1) of the draft Law 
"On Geographical Indications" meets the re quirements of Article 22(3) of the 
TRIPS Agreement.   
Protect against use of geographical indications even when literally true but which 
falsely represent that the goods originate in another territory.  Article 22.4 Article 23(1) of the draft Law "On Geographical Indications" so provides. 
Protect, with certain exceptions, appellations  or origin for wines and spirits even 
against use accompanied by expressions such as 'kind," type," "style," etc.  Article 23.1 
and 24. Wines and spirits are excluded from the draft Law for religious reasons. 
Refuse or invalidate, with certain exceptions trademark registrations containing 
geographical indications for wi nes and spirits if they do not originate in the place 
named.  Article 23.2 and 24. Wines and spirits are excluded from the draft Law for religious reasons.  
Industrial Designs Citation to appropriate law 
Provide, with certain exceptions, protection for new or original, independently created 
industrial designs.  Article 25.1. The draft Law "On Industrial Designs" so provides at Article 9(1).  
Ensure that requirements fo r securing protection for textile designs are not prohibitive 
of such protection.  Article 25.2. The draft Law "On Industrial Designs" provides for protection of textile designs as 
industrial designs at Article 9(6).  
Protection should last at least 10 y ears.  The draft Law "On Industrial Designs" so provides at Article 21.   
  WT/ACC/AFG/8 
Page 10 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 inve ntive step and are industrially 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. Chapter 2 of the Patent Law is being amended to include a provision based closely on 
Article 27(1) of the TRIPS Agreement.  A current exclusion for drug formulae, at 
Article 7 of the Law, will be deleted under pending amendments.  Patentability 
exceptions for public order, morality, and danger to life, health, or the environment are being amended for compliance with Artic le 27(2) of the TRIPS Agreement. 
 
Appropriate legislation on plant variety protection is under development.  
Provide patent owners with the right to prevent others from making, using, offering for 
sale, selling or importing a patented product or  from using a patent process or using, 
offering for sale, selling or importing a product  produced directly using such process.  
Article 28.1. Pending amendments to Article 33(2) of the Patent Law will so provide.  
Give patent owners the right to assign the rights in the patent, or transfer the rights by 
succession, or licence them.  Article 28.2 Article 17 of the Patent Law permits transfer  of patent rights, including by inheritance.  
Require applicants to disclose  the invention so that 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. Pending amendments to Article 24(2) of the Patent Law will so provide. 
 
 
Ensure that any exceptions to exclusive pate nt rights do not unreasonably conflict with 
normal exploitation of the patent and do not unreasonably prejudice the legitimate 
interests of the patent owner, taking third party interests into account.  Article 30. The Patent Law's sole exception to exclusive patent rights, at Article 33(3), is based on 
Article 5 ter of the Paris Convention. 
Compulsory licenses can be issued only when enumerated conditions are met, 
including such things as notice, remunerati on, limitations on use and transfer of the 
license, etc.  Article 3 1. Pending amendments to Article 35 of the Pa tent Law will address all applicable TRIPS 
compulsory licensing requirements.  
Provide an opportunity for judicial review of decisions to revoke or forfeit a patent.  
Article 32. Pending amendments to Article 46(2) of the Patent Law will so provide.  
Provide a patent term of at least 20 years from the filing date.  Article 33. Article 34 of the patent law complies with this r equirement. 
Shift the burden of proof in process patent infringement actions to the defendant in 
instances in 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. The Patent Law currently contains no enforcement section, but pending amendments to 
Article 49 of that law lay the foundation for adoption of patent enforcement measures 
by the Ministry of Commerce and Industries patents.  Burden of proof requirements 
under Article 34 of the TRIPS Agreement have been developed and will be included in provisions governing civil enforcement proceedings with respect to process patents.  
Integrated-Circuit Layout Designs 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 Treaty as incorpor ated into TRIPS by Article 35. Appropriate legislation on protection of layout designs of integrated circuits is under 
development.  
Make unlawful, except in certain circumstan ces, 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 the TRIPS Agreement.  
Provide such protection for a term of 10 y ears from the films, of an application for 
registration or from first commercial exploitation.  Article 38.   
   WT/ACC/AFG/8
 Page 11Undisclosed Information Citation to appropriate law or laws 
Provide protection for undisclosed information that is secret (not generally known or 
readily ascertainable); has commercial valu e because of its secrecy, and has been 
subject to reasonable steps to keep it secret.  Article 39.2. Appropriate legislation on protection for undisclosed information is under 
development.  
Protect data submitted to obtain marketi ng approval for pharmaceutical or agricultural 
chemicals utilizing a new chemical entity.  Article 39.3.  
Enforcement Citation to ap propriate law or laws 
- General Provisions  
Provide for effective action against infringeme nt of intellectual property rights without 
creating barriers to legitimate trade or opportunities for abuse.  Article 41.1 The Civil Procedure Code generally permits plaintiffs to bring enforcement actions 
Provide enforcement procedures that are fa ir and equitable and are not unnecessarily 
complicated or costly and do not entail unre asonable time-limits or unwarranted delays.  
Article 41.2  The Civil Procedure Code generally provides fair and simple procedures allowing 
plaintiffs to bring en forcement actions.   
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. Article 245 of the Civil Procedure Code provid es that decisions on the merits of a case 
be available to parties, and pending amendments to Article 248 of the Civil Procedure 
Code provide for additional requirements on opportunities to be heard. 
Provide for appeals to judicial  bodies of final administrativ e decisions and of at least 
the legal aspects of initial judicial decision s on the merits of a case.  Article 41.4. Articles 244 and 266 of the Civil Procedure Code reference the right of appeal, and 
Chapter Four of that Code sets out appeal procedures. 
Civil and Administrative Procedures and Remedies Citation to appropriate law
Provide a procedure that allows plaintiffs to bring an 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  The Civil Procedure Code generally provides procedures allowing plaintiffs to bring 
enforcement actions.  Pending amendments to Article 131 of that Code will require fair 
notifications of claims. Pending amendments to Article 40 of the Civil Procedure Code will provide protections for confidential information involved in enforcement 
proceedings. 
Authorize judges to order production of evid ence necessary to subs tantiate a party's 
claims where that party has been unable to  obtain such evidence from the opposing 
party.  Article 43. 1.  Pending amendments to Article 224 of th e Civil Procedure Code  will clarify court 
authority to compel production of evidence.  
  WT/ACC/AFG/8 
Page 12 Authorize judges to enjoin a defendant, except the government, from infringing 
intellectual property rights.  Article 44. 1. With regard to copyright enforcement, compliant provisions on injunctions shall be 
adopted under Article 30(2) of the Copyright Law. 
 
With regard to trademarks, compliant provisions on injunctive relief shall be adopted under Article 32 of the Trademark Law. 
 
The Patent Law currently contains no enforcement section, but pending amendments to Article 49 of that Law lay the foundation for adoption of patent enforcement measures 
by the Ministry of Commerce and Industries patents. 
 Article 26 of the draft Law "On Geographi cal Indications" meets this requirement. 
 
Article 27 of the draft Law "On Indust rial Designs" meets this requirement. 
 
Pending amendments to Article 265 of the Civil Procedure Code will generally provide 
for permanent injunctions. 
Authorize judges to order the payment of monetary damages adequate to compensate for the injury done by the infringement.  Article 45.1  With regard to copyright enforcement, compliant provisions on compensatory damages 
shall be adopted under Article 30(2) of the Copyright Law. 
 
With regard to trademark enforcement, comp liant provisions on compensatory damages 
shall be adopted under Article 31 of the Trademark Law. 
 With regard to patent enforcement, please see comments to Article 44.1 of the 
TRIPS Agreement, above. 
 Article 28 of the draft Law "On Geographi cal Indications" meets this requirement. 
 
Article 26 of the draft Law "On Indust rial Designs" meets this requirement. 
 
Pending amendments to Article 265 of the Civil Procedure Code will generally provide 
for compensatory damages, litigation expenses including attorney's fees, recovery of profits, and/or payment of pre- established damages as merited.  
   WT/ACC/AFG/8
 Page 13Authorize judges to order infringer to pay right holders enforcement costs and recovery 
of profits and/or statutory damages.  Article 45.2.  With regard to copyright enforcement, comp liant provisions on costs and recovery of 
profits shall be adopted under Article 30(2) of the Copyright Law. 
 
With regard to trademarks, compliant provis ions on costs, including attorney's fees, 
shall be adopted under Article 31 of the Trademark Law.  
 
With regard to patents, please see comments  to Article 44.1 of the TRIPS Agreement, 
above. 
 
Article 28 of the draft Law "On Geograp hical Indications" authorizes judicial 
authorities to order compensation for expenses, including attorney's fees.  
 
Article 26 of the draft Law "On Industrial Designs" authorizes judicial authorities to 
order compensation for expenses, including attorney's fees. 
Authorize additional remedies including seizure of infringing goods, and the materials 
and implements the predominant use of which is infringement.  Article 46. With regard to copyright enforcement, compliant provisions on seizure and destruction 
shall be adopted under Article 30(2) of the Copyright Law. 
 With regard to trademarks, compliant provisions on seizure are provided under 
Article 33 of the Trademark Law. 
 
With regard to patents, please see comments  to Article 44.1 of the TRIPS Agreement, 
above.  
Article 26 of the draft Law "On Geographi cal Indications" meets this requirement. 
 Article 27 of the draft Law "On Indust rial Designs" meets this requirement. 
 
Pending amendments to Article 265 of the Civil Procedure Code will generally provide 
for destruction or disposal of infringing goods, or materials used to create them in 
infringement cases.   
  WT/ACC/AFG/8 
Page 14 Authorize indemnification of defendant, includi ng attorneys' fees in the event of abuse 
by plaintiffs.  Article 48.1. With regard to copyright enforcement, compliant provisions on protecting defendants 
in enforcement actions shall be adopted under Article 32 of the Copyright Law. 
 
With regard to trademarks, appropriate provisions will be adopted under procedural rules. 
 
With regard to patents, please see comments  to Article 44.1 of the TRIPS Agreement, 
above. 
 
Article 27 of the draft Law "On Geographi cal Indications" meets this requirement. 
 
Article 28 of the draft Law "On Indust rial Designs" meets this requirement 
 Pending amendments to Article 267 of the Civil Procedure Code will generally provide 
for indemnification of defendants against whom measures are wrongfully taken through 
abuse of enforcement mechanisms.  
Exempt public authorities and officials from liability 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. No existing or draft intellectual property law exempts public authorities and officials 
from such liability.  
Ensure that administrative reme dies conform to the principles  in the preceding Articles.  
Article 49. Not applicable with regard to enforcem ent procedures under existing or draft 
Intellectual Property Laws.  
- Provisional Measures  
Authorize judges to grant temporary restraining orders and provisional relief to prevent 
infringement and to preserve evidence.  Article 50.1. With regard to copyright enforcement, general language allowing provisional measures 
shall be adopted under Article 30(4) of the Copyright Law.  Detailed provisions 
governing the application of provisional meas ures for all areas of intellectual property 
have been developed and will eventually be added to the Code of Civil Procedures.  
The Trademark, Patent, Geographical Indications and Industrial Designs  Laws will also 
generally reference such procedures. 
Authorize judges to require the complaining party to indemnify the defending party against harm if the decision on the merits finds the provisional relief unjustified.  
Article 50.3. See comments to Article 50(1 ) of the TRIPS Agreement. 
Provide for notice, for formal action by the plaintiff after temporary restraining orders, 
etc.  Article 50.4. See comments to Article 50(1 ) of the TRIPS Agreement. 
- Border Measures  
Provide for suspension of release by customs authorities of goods suspected of bearing 
a counterfeit trademark or of being a piratical copyrighted 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. Draft legislation on border enforcement of intellectual property rights will be 
developed.  It will build on Afghanistan's existing Customs Code provisions, and take 
into account TRIPS Agreemen t requirements, resources available to the customs 
service and judiciary, World Customs Organization models, and best practices noted in comparable jurisdictions.  
   WT/ACC/AFG/8
 Page 15Require right holders initiating border measur es to provide evidence of a prima facie 
infringement and a description of tile goods sufficient for customs 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 holder requesting border measures to post a 
bond sufficient to protect the defendan t and to prevent abuse.  Article 53.  
Requires prompt notification of the right holder and the importer when action under 
Article 51 is taken.  Article 54.  
Requires that customs authorities be notified within a maximum of 20 days of the 
receipt of notice that proceedi ngs on the merits have begun or the suspension is to be 
revoked.  Article 55.  
Authorities must be authorized to require the right holder to compensate the importer or 
owner of the goods subject to border measures if goods were wrongfully detained or if 
proceedings leading to a decision on the merits are not begun within tile allotted time.  Article 56.  
Right holders must be allowed to inspect the detained goods in order to substantiate the 
right holder'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 if customs authorities are authorized to 
act ex officio, including the ability to ask the right holder for information at any time; 
the requirement 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 order destruction or disposal other than by re-
export of infringing goods where appropriate.  Article 59.  
Members are authorized to except from bord er measures small quantities of infringing 
goods of a non-commercial na ture carried in personal luggage or shipped in small 
consignments.  Article 60.  
- Criminal Procedures  
Provide criminal procedures and penalties, su fficient to act as a deterrent, for wilful 
trademark 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. With regard to copyright enforcement, compliant provisions on criminal penalties for 
copyright piracy on a commercial scale shall be adopted under Articles 30(3) and 31 of the Copyright Law. 
 
With regard to trademarks, Article 31(1)(B) prohibits "deliberate use of a forged or 
imitated trademark", and Article 31(2) provides for increased penalties or incarceration 
in case of repeated violations of sub-paragraph (1).  
 
 
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