Trade Agreement Related to Intellectual Property Rights

 

Article 3

 

National Treatment

 

1.         Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. 

 

2.         Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.

 

 

Article 4

 

Most-Favoured-Nation Treatment

 

            With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.  Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:

 

(a)        deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;

 

(b)        granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country; 

 

(c)        in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;

 

(d)        deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.

 

 

 

 

Article 5

 

Multilateral Agreements on Acquisition or

Maintenance of Protection

 

            The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

 

 

 

 

Article 8

 

Principles

 

1.         Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 

 

2.         Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

 

 

 

PART III

 

ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

 

 

SECTION 1:  GENERAL OBLIGATIONS

 

 

Article 41

 

1.         Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.  These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

 

2.         Procedures concerning the enforcement of intellectual property rights shall be fair and equitable.  They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

 

3.         Decisions on the merits of a case shall preferably be in writing and reasoned.  They shall be made available at least to the parties to the proceeding without undue delay.  Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.

 

 

SECTION 2:  CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES

 

 

Article 42

 

Fair and Equitable Procedures

 

            Members shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement.  Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims.  Parties shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances.  All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence.  The procedure shall provide a means to identify and protect confidential information, unless this would be contrary to existing constitutional requirements.

 

 

 

PART V

 

DISPUTE PREVENTION AND SETTLEMENT

 

 

Article 63

 

Transparency

 

1.         Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them.  Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

 

Article 64

 

Dispute Settlement

 

1.         The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.

 

Article 73

 

Security Exceptions

 

            Nothing in this Agreement shall be construed:

 

(a)        to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests;  or

 

(b)        to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;

 

(i)         relating to fissionable materials or the materials from which they are derived;

 

(ii)        relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

 

(iii)       taken in time of war or other emergency in international relations;  or

 

(c)        to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.