Trademark Under Trips Agreement
Unlike other IP agreements, TRIPS have an effective enforcement mechanism. States can be disciplined by the WTO dispute settlement mechanism. Intellectual property protection is a common issue in many legal challenges that stand in the way of WHO`s activities under the FCTC. Many of these challenges will refer to the agreement on trade-related aspects of intellectual property rights (or the TRIPS agreement), a WTO agreement that sets minimum standards for intellectual property protection that WTO member states wish to transpose into their domestic law. Examples of legal challenges that raise ISSUEs related to TRIPS include: Article 10 of the agreement states that “1. Computer programs, whether in the source code or in the object code, must be protected as literary works under the Berne Convention (1971). (2) The compilation of data or any other material, whether machine-readable or in any other form, constituting spiritual creations because of the choice or disposition of their content, must be protected as such. Such protection, which does not cover the data or material itself, does not affect the copyrights that exist in the data or materials themselves. Members can make the recording capacity of the use dependent. However, the actual use of a trademark cannot be considered a precondition for filing a registration application and, after that filing date, it must be at least three years before non-compliance with an intention to use is allowed as a reason for rejecting the application (Article 14.3). Section 24 provides for a number of exceptions to the protection of geographical indications.
These exemptions are particularly important for the complementary protection of the geographical indications of wines and spirits. For example, members are not required to protect a geographic indication when it has become a generic term for the product in question (point 6). Measures taken to implement these provisions must not infringe previous good faith trademark rights (paragraph 5). In certain circumstances, the use of a geographical indication for wines or spirits may be permitted of a size and species as is currently the case (paragraph 4). Members who use these exemptions must be willing to enter into negotiations for their subsequent application to the various geographical indications (paragraph 1).