article 20 trips

Intellectual property, including the protection of trademarks under the TRIPS Agreement

On this page:, 1. introduction, 2. no right to use a trademark, 3. no right to use a geographical indication or design, 4. unjustifiable encumbrances by special requirements, 5. interpreting trips.

6. Relevant case law

7. Jump to navigation

Key points:

It is common for legal challenges to WHO FCTC measures to raise intellectual property arguments. WHO FCTC Parties should be aware that:

• Tobacco companies do not have a right under international law to use their trademarks
• TRIPS article 20 only prevents ‘encumbrances’ on the use of trade marks if these are ‘unjustifiable’ and 'by special requirements'
• The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)’s objective and principles, as well as the WTO Ministerial Council’s Doha Declaration on TRIPS and public health, provides that the TRIPS Agreement should be interpreted consistently with public health

The protection of intellectual property is a common theme in many legal challenges brought against WHO FCTC measures. Many of these challenges will cite the  Agreement on Trade-Related Aspects of Intellectual Property Rights (or 'TRIPS' Agreement), a WTO agreement that sets out minimum standards of intellectual property protection that WTO member states agree to implement into domestic law. Examples of legal challenges raising TRIPS-related issues include, among others:

• the challenge to Australia’s plain packaging before a dispute settlement panel and the Appellate Body of the WTO
• the challenge to Uruguay ’s packaging and labelling laws before an arbitral tribunal conducted under the Uruguay-Switzerland BIT
• the challenge to the UK’s standardized packaging in the High Court and Court of Appeal  of England and Wales
• the challenge to Uganda 's graphic health warnings provisions of its Tobacco Control Law before the Constitutional Court of Uganda

It is also common for countries to receive threats of litigation from the tobacco industry that cite TRIPS. Generally, tobacco companies will allege that a measure prevents them from using their trademarks, or more generally fails to provide their trademarks with sufficient protection. TRIPS arguments will often also appear in domestic or investment law in conjunction with arguments about expropriation or other protections for private property.

These arguments generally suffer from a number of misconceptions regarding the nature of the obligations under TRIPS. In particular:

• there is no right to use a trademark under international law, so a measure implementing the WHO FCTC cannot infringe that right
• TRIPS article 20 only prohibits encumbrances that are ‘by special requirements’ and ‘unjustifiable’
• TRIPS must be interpreted in line with its general principles and objectives, which affirm that TRIPS obligations should be interpreted with regard to public health goals.

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Trademarks are distinctive signs used to distinguish the goods and services of one business from those of another business ( See, e.g., TRIPS article 15 ). In most domestic systems, most legal protections for trademarks depend on the trademark holder registering the trademark with the relevant authorities.

TRIPS aims to harmonise some aspects of trademark law across countries, and as such contains obligations to:

• provide for the registration of trademarks on a non-discriminatory basis (although a WTO member may decline to register offensive or misleading trademarks) – contained in article 15
• provide trademark owners with rights to prevent third parties from using their trademarks – contained in article 16

Notably, TRIPS does not include an obligation to allow the trademark to be used (e.g. by being displayed in marketing/advertising), or grant the trademark holder rights to prevent the State from regulating the use of a trademark (e.g. by restricting such marketing/advertising). Trademarks are what are known as  negative  rights – rights to prevent third parties from doing something. They are not  positive  rights that grant the trademark owner the right to do something themselves. They can be asserted only against other private actors, and not against the state. That trademarks are negative rights has been recognised in the Australia – Plain Packaging  WTO decision   ( panel report at 7.1978 and Appellate Body report at 6.614), by other WTO panels ( EC – Geographical Indications , at para 7.610-7.611 of the US panel report  and para 7.610-7.611 of the Australia panel report ), by the investment tribunal in Philip Morris v. Uruguay , and by domestic courts in the United Kingdom , France , Australia , and Uganda .

This means that provided they are implemented by restricting use rather than registration and do not affect the rights of tobacco companies to prevent competitors from using their marks, WHO FCTC-implementing measures are unlikely to fall within the scope of TRIPS’ protections for trademark registration or the rights of trademark holders.

Claims are also sometimes made in relation to other forms of intellectual property, most commonly geographical indications (which protect ways of identifying the place that a product is from and the characteristics it has as a result of that place of origin) or industrial designs (which protect new or original designs). Like trademarks, these rights are expressed in negative terms under TRIPS, and they likewise do not grant their owners rights against state regulation ( See, e.g., EC - Geographical Indications (US), para. 7.210, EC - Geographical Indications (Australia), para. 7.246; Australia – Plain Packaging, para 7.2950-52 ).

A further argument has been made in relation to article 20 of TRIPS, which provides that the use of a trademark in the course of trade ‘shall not be unjustifiably encumbered by special requirements, such as … use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.’  The meaning of this provision was a key part of the Australia – Plain Packaging WTO dispute ( panel report ; Appellate Body report ).

Article 20 prohibits only ‘unjustifiable’ encumbrances.  It is likely that measures implementing the WHO FCTC, an evidence-based multilateral public health treaty with 182 parties, will be justifiable. According to the panel in Australia – Plain Packaging , and upheld by the Appellate Body, whether an encumbrance by special requirements is ‘unjustifiable’ involves an assessment of:

• The nature and extent of the encumbrance resulting from the special requirements, bearing in mind the legitimate interest of the trademark owner in using its trademark in the course of trade and thereby allowing the trademark to fulfil its intended function;
• The reasons for which the special requirements are applied, including any societal interests they are intended to safeguard
• Whether these reasons provide sufficient support for the resulting encumbrance

According to the panel, the need to address the ‘exceptionally grave’ health effects of tobacco use and exposure to tobacco smoke, including by prohibiting and regulating the appearance of trademarks, provided sufficient support for the encumbrances required by plain packaging. The panel also noted that the importance of the public health reasons for adopting plain packaging is underscored by the fact that plain packaging implemented the WHO FCTC, ‘which was “developed in response to the globalization of the tobacco epidemic” and has been ratified in 180 countries’. The Appellate Body upheld these findings on appeal, including affirming the panel’s use of the WHO FCTC in this passage. This reasoning suggests that any encumbrances caused by measures implementing the WHO FCTC in good faith are generally likely to be justifiable under article 20.

Additionally, article 20 only applies to encumbrances by ‘special requirements’. The panel in Australia – Plain Packaging considered a special requirement to be ‘a condition which must be complied with; has a close connection with or specifically addresses the use of trademarks; and is limited in application’. In the case of plain packaging, this definition covered both prohibitions on figurative and image trademarks, as well as requirements on how word marks should be displayed. The panel did not elaborate on the test for a special requirement outside of the context of plain packaging, as it was accepted by all of the parties to the dispute that general regulatory measures, such as advertising bans, did not fall within the scope of article 20. However, it appears from the panel's reasoning that a measure must be quite specifically linked to trademarks to be a 'special requirement', which means that it is likely that many tobacco control measures are not caught by article 20.

The above provisions must all be interpreted in accordance with the general interpretive principles of TRIPS. These are as follows:

• Articles 7 and 8 of the TRIPS Agreement, which are its general principles and objectives clauses, emphasise that intellectual property rights serve public purposes, and are not ends in their own right. Article 7 refers to the need to protect and enforce intellectual property rights ‘in a manner conducive to social and economic welfare, and to a balance of rights and obligations’, and Article 8 provides that WTO Members may ‘adopt measures necessary to protect public health…provided that such measures are consistent with’ the TRIPS Agreement. The Appellate Body in Australia – Plain Packaging considered that these provisions indicate the object and purpose of the TRIPS Agreement and therefore are to be considered in its interpretation under article 31 of the Vienna Convention on the Law of Treaties and its customary international law equivalents.
• The Doha Declaration on TRIPS and Public Health, adopted by the WTO Ministerial Conference (a meeting of all WTO members) in 2001, is also relevant in interpreting the TRIPS Agreement. The Declaration states that the TRIPS Agreement ‘does not and should not prevent Members from taking measures to protect public health’ and that TRIPS ‘can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health.’ While drafted in the context of access to medicines, the scope of the Doha Declaration is clearly expressed in much broader terms and covers public health measures more generally. The Australia – Plain Packaging panel recognised that the Doha Declaration is a subsequent agreement to TRIPS under article 31(3)(a) of the Vienna Convention on the Law of Treaties, and that the specific flexibilities recognised in paragraph 5 of the Doha Declaration are therefore to be taken into account in interpreting TRIPS. The Appellate Body in Australia – Plain Packaging did not address a challenge to this finding, finding that paragraph 5(a) which the panel had relied on restated customary international law rules on treaty interpretation, and that it was therefore not necessary to address the status of the Doha Declaration in order to uphold the panel’s conclusions.

The relevance of these statements to tobacco control is supported by statements of the WHO FCTC Conference of the Parties in the Punta del Este Declaration on the Implementation of the WHO Framework Convention on Tobacco Control, adopted at its fourth session, in November 2010, where the COP:

• recalled the statement in the Doha Declaration that the TRIPS Agreement ‘can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health’
• declared that, in light of Articles 7 and 8 and the Doha Declaration, ‘Parties may adopt measures to protect public health, including regulating the exercise of intellectual property rights in accordance with national public health policies, provided that such measures are consistent with the TRIPS Agreement.’

4. Relevant case law

• Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging ,  Appellate Body Report, WT/DS435/AB/R; WT/DS441/AB/R, 9 June 2020.
• Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging , Panel Reports, WT/DS435/R, WT/DS441/R, WT/DS458/R, WT/DS467/R, 28 June 2018.
• European Communities – Protection of Trademarks and Geographical Indications (United States) , Panel Report, WT/DS174/R, 21 March 2005
• European Communities – Protection of Trademarks and Geographical Indications (Australia) , Panel Report, WT/DS290/R, 15 March 2005
• British American Tobacco v. Secretary of State for Health  [2016] EWHC 1169 (Admin)
• British American Tobacco v. Secretary of State for Health  [2016] EWCA Civ 1182
• Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay , Award, ICSID Case No. ARB/10/7, 8 July 2016
• British American Tobacco v. Attorney-General , Constitutional Petition No. 46 of 2016, Constitutional Court of Uganda, 28 May 2019.

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August 6, 2020

The Final Say on Australia’s Plain Packaging Law at the WTO

Nicholas J. Diamond Adjunct Professor, Law at Georgetown University Law Center

On June 9, the World Trade Organization (WTO) disputes concerning Australia’s plain packaging law for tobacco products, which began in 2012, were finally brought to a close. The Appellate Body ruled against Honduras and the Dominican Republic, finding that Australia’s plain packaging law was not more restrictive of trade than necessary to protect public health and that it did not unjustifiably interfere with tobacco company trademarks.

This post considers the history of challenges to the Tobacco Plain Packaging Act of 2011 (TPP) in domestic and international forums, the significance of the recent Appellate Body ruling, and the potential implications for global public health regulation of tobacco products vis-à-vis international trade.

Australia’s Tobacco Plain Packaging Act of 2011

Since at least the mid-1990s , when initial discussions of what would become the Framework Convention on Tobacco Control ( FCTC ) began, tobacco control efforts have been a focal point in global public health. Australia, in particular, has long been a forerunner in domestic tobacco control, with a history of measures that began with restrictions on tobacco advertisements in the mid-1970s.

Partly in response to its obligations under the FCTC, Australia enacted the controversial Tobacco Plain Packaging Act of 2011 (TPP) and associated regulations , which broadly sought to decrease smoking rates by reducing the appeal of tobacco products, making health warnings more effective, and removing misleading information from packaging.

In brief, the TPP regulates the color, display of brand names, and display of required text and graphic health warnings, while prohibiting the display of logos, brand images, or promotional text, on tobacco products. Most noticeably, packaging is required to display startling images of the negative health effects of tobacco use. In effect, tobacco packaging is stripped of its colors, logos, textures, and branding, apart from a prescribed display of the brand name of the product, in favor of a prominent public health message.

Domestic and Investment Treaty Challenges

Unsurprisingly, the TPP was swiftly challenged by tobacco companies in several forums. Domestically, in 2012, four major tobacco manufacturers challenged the plain packaging laws in the High Court of Australia . Although the justices acknowledged that the TPP rendered the trademarks essentially valueless, they upheld the measures because, in pertinent part, the government had merely regulated, as opposed to acquired an interest in, the trademarks.

Separately, on the global stage, in 2011, Philip Morris challenged the TPP under the dispute settlement clause in the Hong Kong-Australia Bilateral Investment Treaty, arguing that Australia had breached obligations concerning expropriation, fair and equitable treatment, unreasonable impairment, and full protection and security. The tribunal, sitting in the Permanent Court of Arbitration, did not reach the merits of the issues. Instead, its decision in 2015 found that Philip Morris had abused its rights by restructuring ownership of its subsidiaries in Asia primarily as a strategic move to gain investment treaty protection when a dispute was already foreseeable.

At the WTO  

The history of the WTO disputes concerning the TPP dates to 2012, when several members requested consultations on the effects of the TPP on Australia’s obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), the Technical Barriers to Trade Agreement (TBT Agreement), and the General Agreement on Tariffs and Trade. The Dispute Settlement Body subsequently announced the establishment of a panel to investigate the claims. In 2018, the panel released its report , finding that the TPP was consistent with WTO law. Both Honduras and the Dominican Republic appealed the decision.

The Appellate Body, in its June 9 ruling , affirmed the findings of the panel report. Regarding Article 2.2 of the TBT Agreement, it held that the TPP measures are “apt to, and do in fact, contribute to Australia’s objective of reducing the use of, and exposure to, tobacco products”. It further held that the measures are not “more trade-restrictive than necessary to fulfill a legitimate objective”, namely, Australia’s public health goals relating to tobacco control. In particular, it agreed that the TPP did not have a limiting effect on trade by reducing producers’ ability to distinguish between tobacco products based on brand.

Finally, the Appellate Body held that Australia had not breached its obligations under TRIPS. Under Article 16.1 of TRIPS, a trademark owner does not have a positive right to use its trademark or a right to protect its distinctiveness through use; rather, the trademark owner only has an exclusive right to preclude unauthorized use. Moreover, under Article 20 of TRIPS, the special requirements on the use of a trademark under the TPP had not “unjustifiably” encumbered use of the trademarks, given the nature and extent of the encumbrance weighed against the public health goals of the measures. Notably, this marks the first time that the Appellate Body has considered “justifiability” under Article 20. Its arguably permissive view on the meaning of the term, which affords members some latitude in the design of their domestic measures vis-à-vis Article 20, is likely to have longer term implications for WTO law.

Looking Ahead

The recent Appellate Body ruling represents a major milestone for both Australia and global tobacco control efforts. For Australia, this ruling finally puts to an end challenges to the TPP in several forums, enabling a continued focus on its tobacco control and preventive health efforts .

On the global stage, the recent ruling is especially significant in at least two regards. First, it confirms that plain packaging laws can, where sensibly designed and supported by robust research, withstand legal challenges on several fronts. Indeed, other states that have enacted plain packaging laws, such as Uruguay, have also been challenged by tobacco companies and have likewise successfully defended their measures. For states with similar measures soon to go into effect, such as Singapore , the recent ruling likely reduces litigation risks, at least vis-à-vis trade obligations.

Second, and more broadly, the ruling reaffirms that international trade and public health goals are not necessarily mutually exclusive. Trade and public health have not always harmoniously interacted, especially where viewed within the broader normative and legal framework provided by international human rights law. Indeed, trade has often been viewed as a barrier to promoting public health on the global stage, not least regarding the potential for regulatory chill in global tobacco control efforts. However, the recent ruling further underscores that states can enact strong, yet evidence-based, tobacco control measures that do not, in principle, undercut their obligations on the international plane.

Nicholas J. Diamond is an Adjunct Professor of Law at Georgetown University Law Center. His academic work focuses on the intersection of economic issues, human rights, and the law.

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Ukrainian presidential adviser: Ukraine had nothing to do with Moscow shootings

Ukrainian presidential adviser Mykhailo Podolyak said on Friday that Kyiv had nothing to do with Friday's attack by gunmen at a Moscow concert hall.

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National Security Adviser Makes Covert Trip to Kyiv

Jake Sullivan met with President Volodymyr Zelensky of Ukraine and his senior officials as additional U.S. aid continued to languish in the House.

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By Zolan Kanno-Youngs

Reporting from Phoenix

President Biden’s top national security official made a secret trip to Kyiv on Wednesday, as Ukrainian soldiers holding off Russian troops are running out of munitions and U.S. aid remains stalled in congressional gridlock.

Jake Sullivan, the national security adviser, met with President Volodymyr Zelensky of Ukraine and his senior officials “to reaffirm the United States’ unwavering commitment to Ukraine in its self-defense against Russia’s brutal invasion,” said a national security spokeswoman, Adrienne Watson. “He stressed the urgent need for the U.S. House of Representatives to pass the national security supplemental to meet Ukraine’s critical battlefield needs.”

The covert trip showed the rising sense of urgency in the White House to pressure Congress to pass billions of dollars of aid for Ukraine, a financial package that the Biden administration says the country needs to defend itself against Russia.

The White House has tried, so far unsuccessfully, to push House Republicans to support a $60 billion emergency spending plan for weapons for Ukraine and to bolster armament production in the United States.

With that funding held back and future U.S. aid in limbo, the administration last week sent Ukraine a $300 million package that included air defense interceptors, artillery rounds, armor systems and an older version of the Army’s longer-range missile systems known as ATACMS. But that package is most likely going to hold off Russia for only a matter of weeks, U.S. officials have said.

“Ukrainian troops have fought bravely, are fighting bravely throughout this war,” Mr. Sullivan said when the package was announced, “but they are now forced to ration their ammunition under pressure on multiple fronts.”

Mr. Sullivan’s visit came one day after Defense Secretary Lloyd J. Austin III met with other backers of Ukraine in Germany to strategize on how to maintain military support for Kyiv.

“Ukraine’s battle remains one of the great causes of our time,” Mr. Austin said.

Zolan Kanno-Youngs is a White House correspondent, covering President Biden and his administration. More about Zolan Kanno-Youngs

Our Coverage of the War in Ukraine

News and Analysis

Russian missiles streaked into Kyiv  in the biggest assault on the Ukrainian capital in weeks, injuring several people and damaging several buildings.

Jake Sullivan, President Biden’s top national security official, made a secret trip to Kyiv to meet with President Volodymyr Zelensky and reaffirm the United States’ unwavering commitment to Ukraine.

Under pressure to come up with billions of dollars to support Ukraine’s military, the E.U. said that it had devised a legal way to use frozen Russian assets  to help arm Ukraine.

Symbolism or Strategy?: Ukrainians say that defending places with little strategic value is worth the cost in casualties and weapons , because the attacking Russians pay an even higher price. American officials aren’t so sure.

Elaborate Tales: As the Ukraine war grinds on, the Kremlin has created increasingly complex fabrications online  to discredit Ukraine’s leader, Volodymyr Zelensky, and undermine the country’s support in the West.

Targeting Russia’s Oil Industry: With its army short of ammunition and troops to break the deadlock on the battlefield, Kyiv has increasingly taken the fight beyond the Ukrainian border, attacking oil infrastructure deep in Russian territory .

How We Verify Our Reporting

Our team of visual journalists analyzes satellite images, photographs , videos and radio transmissions  to independently confirm troop movements and other details.

We monitor and authenticate reports on social media, corroborating these with eyewitness accounts and interviews. Read more about our reporting efforts .

Blinken begins new round of Gaza talks in Saudi Arabia

The secretary of state started a visit to saudi arabia, egypt and israel to discuss the palestinian territory’s future.

JEDDAH, Saudi Arabia — Secretary of State Antony Blinken on Wednesday began his sixth trip to the Middle East since the eruption of conflict between Israel and Hamas , his latest bid to compel Israel to ease its assault on the battered territory and identify a post-conflict plan that could lead to a Palestinian state.

State Department officials do not expect the brief visit — a day in Saudi Arabia, a day in Egypt and just a few hours in Israel — to yield major breakthroughs, but they hope to advance discussions that have consumed much of Blinken’s focus for months. U.S. leaders, including President Biden , have grown sharply critical of the war’s harsh toll on Gazan civilians as the White House faces domestic blowback from its management of the United States’ relationship with Israel.

Israel-Gaza war

In Saudi Arabia, Blinken met with the country’s de facto ruler, Crown Prince Mohammed bin Salman, to discuss a plan that would normalize relations between Riyadh and Israel as part of a path toward a two-state solution. In Cairo, Blinken will meet Arab foreign ministers to negotiate how to administer Gaza after the fighting stops. And there will also be conversations about a possible cease-fire in parallel with negotiations taking place in Qatar .

Leaders will be “discussing what is the right architecture for lasting regional peace,” Blinken told reporters Tuesday in Manila, part of a swing through Asia before his Mideast visit. “We’ve also impressed upon Israel the imperative of having a plan for Gaza for when the conflict ends.”

Blinken has been working with Arab leaders since January to hammer out such a plan, which he can then present to Israeli Prime Minister Benjamin Netanyahu in an effort to win Israeli backing for steps the Biden administration hopes can lessen the chances of a future assault by Hamas similar to its Oct. 7 attack.

Even before that attack, the Biden administration was trying to broker a deal between Israel and Saudi Arabia, a move that would be a major step toward ending Israel’s isolation in the region. Saudi leaders are hoping for U.S. assistance for their civilian nuclear program in return.

U.S. diplomats now hope that the lure of Saudi normalization could be sufficiently strong for Netanyahu that it could be used as a bargaining chip to win his willingness to talk about a Palestinian state, about which he has long been skeptical.

Israel-Gaza war: Secretary of State Antony Blinken is set to make a quick stop in Israel as tensions are rising between the United States and Israel over Israeli Prime Minister Benjamin Netanyahu’s plans to invade Rafah . The Israeli military said Wednesday that it was continuing its raid on al-Shifa Hospital in Gaza City, where people said they were trapped in dire conditions.

Middle East conflict: Tensions in the region continue to rise. As Israeli troops aim to take control of the Gaza-Egypt border crossing, officials in Cairo warn that the move would undermine the 1979 peace treaty. Meanwhile, there’s a diplomatic scramble to avert full-scale war between Israel and Lebanon .

U.S. involvement: U.S. airstrikes in Iraq and Syria killed dozens of Iranian-linked militants , according to Iraqi officials. The strikes were the first round of retaliatory action by the Biden administration for an attack in Jordan that killed three U.S. service members .

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Student Spotlight: Isabelle Wohlleber ’24 Steps Out of Her Comfort Zone for Workfest

The mathematical science major explained the inspiration that drew her to the experience.

"I became interested in going to Kentucky for a service trip after hearing all of the great things past students have said about it. I also wanted to do something different than my previous service experiences," said Wohlleber, of Hazleton.

Student volunteers helped build a ramp, shown above, and install siding on a home in eastern Kentucky during a spring break as part of a Center for Service and Social Justice service trip.

Royals in Wohlleber's group included students Stephen Butler, Jack Burke, Andrew Gordos, Isabelle Jalandoni, Meghan Martin, Sarika Mongar and Sam Peters, and three chaperones, Andrea Malia, Eric Panicco and Dr. Sean Brennan.

"Everything I did on the trip I had never done before, which was really scary leading up to it," said Wohlleber. "I wanted to focus on the present and live fully in the moment. It was important to me to immerse myself in the trip and reflect on all the service I was doing." 

Trip Takeaways

Wohlleber, who had volunteered previously with the Center for Service and Social Justice, said the Christian Appalachian Project in Kentucky provided meaningful experiences. She shared a few examples:

• "What surprised me most about the trip was the sense of community within the population we helped. Going to the participants' homes, we were able to see their close-knit community. My participant's neighbors installed a new vanity in their home, and one of their neighbors wanted to reuse the old wood from their deck. Everyone was always looking out for each other, which was really refreshing."
• "All of the volunteers at Christian Appalachian Project made us feel welcome as soon as we got there. Many have been volunteering with Workfest for years, and they have gotten to know each other and the participants so well." 

Wohlleber is part of the Combined Program with the university's graduate chemistry department. After she earns her undergraduate degree in May, she will be staying for a graduate year to finish up a Master's degree in biochemistry. Afterward, she hopes to attend medical school.  "It was truly such a special place, and I cannot put it all into words. I felt like I was a part of the family the entire time I was there!  Read more about the spring break service trips organized through the University's Center for Service and Social Justice in this week's Royal News . Check back next week for an interview with Claire Loder '24, who spent spring break volunteering  in Phoenix, Arizona.

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Idaho: white supremacist prisoner on the run after brazen hospital ambush

Three corrections officers injured after unknown accomplice of gang member Skylar Meade stages attack after hospital trip

A white supremacist prison gang member in Idaho and an accomplice remained on the loose Wednesday after the accomplice staged a brazen overnight attack to free the inmate as he was being transported from a Boise hospital, police said.

Police identified the man suspected of shooting two corrections officers during the ambush as Nicholas Umphenour. A warrant with a $2 m bond has been issued for his arrest on two charges of aggravated battery against law enforcement and one charge of aiding and abetting an escape, police said. Police said the search continues for Umphenour and escaped inmate Skylar Meade, who fled the hospital early Wednesday in a gray 2020 Honda Civic with Idaho plates. It’s not known where they are or where they are headed, police said.

Three corrections officers were shot and wounded – two allegedly by Umphenour and one by responding police – during the attack in the ambulance bay at Saint Alphonsus regional medical center.

Officials described Meade, 31, as a white supremacist gang member. Meade was sentenced to 20 years in 2017 for shooting at a sheriff’s sergeant during a high-speed chase.

The attack occurred at 2.15am as Idaho corrections officers prepared to bring Meade back to prison. Department director Josh Tewalt said during a news conference Wednesday afternoon that Meade was taken to the hospital at 9.35pm Tuesday after he engaged in “self-injurious behavior” and medical staff determined he needed emergency care.

One officer shot by the suspect was in critical but stable condition, police said, while the second wounded officer had serious but non-life-threatening injuries. The third injured corrections officer also sustained non-life-threatening injuries when a responding officer – incorrectly believing the shooter was still in the emergency room and seeing an armed person near the entrance – opened fire.

“This brazen, violent and apparently coordinated attack on Idaho department of corrections personnel, to facilitate an escape of a dangerous inmate, was carried out right in front of the emergency department, where people come for medical help, often in the direst circumstances,” Boise police chief Ron Winegar said in a written statement.

Meade, 5ft 6in and 150lbs, has face tattoos with the numbers 1 and 11 – for A and K, the first and 11th letters of the alphabet, representing the Aryan Knights gang he is affiliated with, Tewalt said. Photos released by police also show an A and K tattooed on his abdomen.

Meade had been held in a type of solitary confinement called administrative segregation at the Idaho maximum security institution in Kuna, about 12 miles (19km) south of Boise, because officials deemed him a severe security risk, Tewalt said.

Meade had been escorted in the ambulance and at the hospital by two uniformed, unarmed officers wearing ballistic vests, tailed by armed staff, Tewalt said. Standard procedure for transporting a high-risk inmate has unarmed guards on each side of a prisoner while an armed guard follows, he said.

Authorities did not say which security measures had been in place when Meade left the hospital, or whether he had been handcuffed, shackled or walking on his own.

The attack came amid a wave of gun violence at hospitals and medical centers, which have struggled to adapt to the threats.

A Saint Alphonsus spokesperson said the shooting happened in the ambulance bay by its emergency department.

“All patients and staff are safe, the medical center campus is safe and secure, and has resumed normal operations. The emergency department itself is currently under temporary lockdown while the Boise police department completes the investigation,” Leticia Ramirez said Wednesday morning in a statement.

She said that, as an added precaution, “we have increased security on campus, all entrances to the hospital will be closed” and monitored by hospital security until further notice.

Ramirez declined to comment when asked about Meade, deferring to the police department.

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Overview: the TRIPS Agreement

The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.

> General provisions > Standards of protection > Copyright > Related rights > Trademarks > Geographical indications > Industrial designs > Patents > Integrated circuits > Undisclosed information > Anti-competitive licences > Enforcement > General obligations > Procedures and remedies > Provisional measures > Border measures > Criminal procedures > Other provisions > Acquiring and maintaining rights > Transitional arrangements > Protecting existing matter

The three main features of the Agreement are:

• Standards . In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection. The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention. Secondly, the TRIPS Agreement adds a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
• Enforcement . The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
• Dispute settlement . The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.

In addition the Agreement provides for certain basic principles, such as national and most-favoured-nation treatment, and some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement. The obligations under the Agreement will apply equally to all Member countries, but developing countries will have a longer period to phase them in. Special transition arrangements operate in the situation where a developing country does not presently provide product patent protection in the area of pharmaceuticals.

The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.

Certain general provisions 

As in the main pre-existing intellectual property conventions, the basic obligation on each Member country is to accord the treatment in regard to the protection of intellectual property provided for under the Agreement to the persons of other Members. Article 1.3 defines who these persons are. These persons are referred to as “nationals” but include persons, natural or legal, who have a close attachment to other Members without necessarily being nationals. The criteria for determining which persons must thus benefit from the treatment provided for under the Agreement are those laid down for this purpose in the main pre-existing intellectual property conventions of WIPO, applied of course with respect to all WTO Members whether or not they are party to those conventions. These conventions are the Paris Convention, the Berne Convention, International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), and the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty).

Articles 3, 4 and 5 include the fundamental rules on national and most-favoured-nation treatment of foreign nationals, which are common to all categories of intellectual property covered by the Agreement. These obligations cover not only the substantive standards of protection but also matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in the Agreement. While the national treatment clause forbids discrimination between a Member's own nationals and the nationals of other Members, the most-favoured-nation treatment clause forbids discrimination between the nationals of other Members. In respect of the national treatment obligation, the exceptions allowed under the pre-existing intellectual property conventions of WIPO are also allowed under TRIPS. Where these exceptions allow material reciprocity, a consequential exception to MFN treatment is also permitted (e.g. comparison of terms for copyright protection in excess of the minimum term required by the TRIPS Agreement as provided under Article 7(8) of the Berne Convention as incorporated into the TRIPS Agreement). Certain other limited exceptions to the MFN obligation are also provided for.

The general goals of the TRIPS Agreement are contained in the Preamble of the Agreement, which reproduces the basic Uruguay Round negotiating objectives established in the TRIPS area by the 1986 Punta del Este Declaration and the 1988/89 Mid-Term Review. These objectives include the reduction of distortions and impediments to international trade, promotion of effective and adequate protection of intellectual property rights, and ensuring that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade. These objectives should be read in conjunction with Article 7, entitled “Objectives”, according to which the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Article 8, entitled “Principles”, recognizes the rights of Members to adopt measures for public health and other public interest reasons and to prevent the abuse of intellectual property rights, provided that such measures are consistent with the provisions of the TRIPS Agreement.

Substantive standards of protection 

Copyright Back to top

During the Uruguay Round negotiations, it was recognized that the Berne Convention already, for the most part, provided adequate basic standards of copyright protection. Thus it was agreed that the point of departure should be the existing level of protection under the latest Act, the Paris Act of 1971, of that Convention. The point of departure is expressed in Article 9.1 under which Members are obliged to comply with the substantive provisions of the Paris Act of 1971 of the Berne Convention, i.e. Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members do not have rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article 6 bis of that Convention, i.e. the moral rights (the right to claim authorship and to object to any derogatory action in relation to a work, which would be prejudicial to the author's honour or reputation), or of the rights derived therefrom. The provisions of the Berne Convention referred to deal with questions such as subject-matter to be protected, minimum term of protection, and rights to be conferred and permissible limitations to those rights. The Appendix allows developing countries, under certain conditions, to make some limitations to the right of translation and the right of reproduction.

In addition to requiring compliance with the basic standards of the Berne Convention, the TRIPS Agreement clarifies and adds certain specific points.

Article 9.2 confirms that copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Article 10.1 provides that computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). This provision confirms that computer programs must be protected under copyright and that those provisions of the Berne Convention that apply to literary works shall be applied also to them. It confirms further, that the form in which a program is, whether in source or object code, does not affect the protection. The obligation to protect computer programs as literary works means e.g. that only those limitations that are applicable to literary works may be applied to computer programs. It also confirms that the general term of protection of 50 years applies to computer programs. Possible shorter terms applicable to photographic works and works of applied art may not be applied.

Article 10.2 clarifies that databases and other compilations of data or other material shall be protected as such under copyright even where the databases include data that as such are not protected under copyright. Databases are eligible for copyright protection provided that they by reason of the selection or arrangement of their contents constitute intellectual creations. The provision also confirms that databases have to be protected regardless of which form they are in, whether machine readable or other form. Furthermore, the provision clarifies that such protection shall not extend to the data or material itself, and that it shall be without prejudice to any copyright subsisting in the data or material itself.

Article 11 provides that authors shall have in respect of at least computer programs and, in certain circumstances, of cinematographic works the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. With respect to cinematographic works, the exclusive rental right is subject to the so-called impairment test: a Member is excepted from the obligation unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, the obligation does not apply to rentals where the program itself is not the essential object of the rental.

According to the general rule contained in Article 7(1) of the Berne Convention as incorporated into the TRIPS Agreement, the term of protection shall be the life of the author and 50 years after his death. Paragraphs 2 through 4 of that Article specifically allow shorter terms in certain cases. These provisions are supplemented by Article 12 of the TRIPS Agreement, which provides that whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.

Article 13 requires Members to confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. This is a horizontal provision that applies to all limitations and exceptions permitted under the provisions of the Berne Convention and the Appendix thereto as incorporated into the TRIPS Agreement. The application of these limitations is permitted also under the TRIPS Agreement, but the provision makes it clear that they must be applied in a manner that does not prejudice the legitimate interests of the right holder.

Related rights Back to top

The provisions on protection of performers, producers of phonograms and broadcasting organizations are included in Article 14. According to Article 14.1, performers shall have the possibility of preventing the unauthorized fixation of their performance on a phonogram (e.g. the recording of a live musical performance). The fixation right covers only aural, not audiovisual fixations. Performers must also be in position to prevent the reproduction of such fixations. They shall also have the possibility of preventing the unauthorized broadcasting by wireless means and the communication to the public of their live performance.

In accordance with Article 14.2, Members have to grant producers of phonograms an exclusive reproduction right. In addition to this, they have to grant, in accordance with Article 14.4, an exclusive rental right at least to producers of phonograms. The provisions on rental rights apply also to any other right holders in phonograms as determined in national law. This right has the same scope as the rental right in respect of computer programs. Therefore it is not subject to the impairment test as in respect of cinematographic works. However, it is limited by a so-called grand-fathering clause, according to which a Member, which on 15 April 1994, i.e. the date of the signature of the Marrakesh Agreement, had in force a system of equitable remuneration of right holders in respect of the rental of phonograms, may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.

Broadcasting organizations shall have, in accordance with Article 14.3, the right to prohibit the unauthorized fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of their television broadcasts. However, it is not necessary to grant such rights to broadcasting organizations, if owners of copyright in the subject-matter of broadcasts are provided with the possibility of preventing these acts, subject to the provisions of the Berne Convention.

The term of protection is at least 50 years for performers and producers of phonograms, and 20 years for broadcasting organizations (Article 14.5).

Article 14.6 provides that any Member may, in relation to the protection of performers, producers of phonograms and broadcasting organizations, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention.

Trademarks Back to top

The basic rule contained in Article 15 is that any sign, or any combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings, must be eligible for registration as a trademark, provided that it is visually perceptible. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, must be eligible for registration as trademarks.

Where signs are not inherently capable of distinguishing the relevant goods or services, Member countries are allowed to require, as an additional condition for eligibility for registration as a trademark, that distinctiveness has been acquired through use. Members are free to determine whether to allow the registration of signs that are not visually perceptible (e.g. sound or smell marks).

Members may make registrability depend on use. However, actual use of a trademark shall not be permitted as a condition for filing an application for registration, and at least three years must have passed after that filing date before failure to realize an intent to use is allowed as the ground for refusing the application (Article 14.3).

The Agreement requires service marks to be protected in the same way as marks distinguishing goods (see e.g. Articles 15.1, 16.2 and 62.3).

The owner of a registered trademark must be granted the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion must be presumed (Article 16.1).

The TRIPS Agreement contains certain provisions on well-known marks, which supplement the protection required by Article 6 bis of the Paris Convention, as incorporated by reference into the TRIPS Agreement, which obliges Members to refuse or to cancel the registration, and to prohibit the use of a mark conflicting with a mark which is well known. First, the provisions of that Article must be applied also to services. Second, it is required that knowledge in the relevant sector of the public acquired not only as a result of the use of the mark but also by other means, including as a result of its promotion, be taken into account. Furthermore, the protection of registered well-known marks must extend to goods or services which are not similar to those in respect of which the trademark has been registered, provided that its use would indicate a connection between those goods or services and the owner of the registered trademark, and the interests of the owner are likely to be damaged by such use (Articles 16.2 and 3).

Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties (Article 17).

Initial registration, and each renewal of registration, of a trademark shall be for a term of no less than seven years. The registration of a trademark shall be renewable indefinitely (Article 18).

Cancellation of a mark on the grounds of non-use cannot take place before three years of uninterrupted non-use has elapsed unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner. Circumstances arising independently of the will of the owner of the trademark, such as import restrictions or other government restrictions, shall be recognized as valid reasons of non-use. Use of a trademark by another person, when subject to the control of its owner, must be recognized as use of the trademark for the purpose of maintaining the registration (Article 19).

It is further required that use of the trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form, or use in a manner detrimental to its capability to distinguish the goods or services (Article 20).

Geographical indications Back to top

Geographical indications are defined, for the purposes of the Agreement, as indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin (Article 22.1). Thus, this definition specifies that the quality, reputation or other characteristics of a good can each be a sufficient basis for eligibility as a geographical indication, where they are essentially attributable to the geographical origin of the good.

In respect of all geographical indications, interested parties must have legal means to prevent use of indications which mislead the public as to the geographical origin of the good, and use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention (Article 22.2).

The registration of a trademark which uses a geographical indication in a way that misleads the public as to the true place of origin must be refused or invalidated ex officio if the legislation so permits or at the request of an interested party (Article 22.3).

Article 23 provides that interested parties must have the legal means to prevent the use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, there is no unfair competition and the true origin of the good is indicated or the geographical indication is accompanied be expressions such as “kind”, “type”, “style”, “imitation” or the like. Similar protection must be given to geographical indications identifying spirits when used on spirits. Protection against registration of a trademark must be provided accordingly.

Article 24 contains a number of exceptions to the protection of geographical indications. These exceptions are of particular relevance in respect of the additional protection for geographical indications for wines and spirits. For example, Members are not obliged to bring a geographical indication under protection, where it has become a generic term for describing the product in question (paragraph 6). Measures to implement these provisions shall not prejudice prior trademark rights that have been acquired in good faith (paragraph 5). Under certain circumstances, continued use of a geographical indication for wines or spirits may be allowed on a scale and nature as before (paragraph 4). Members availing themselves of the use of these exceptions must be willing to enter into negotiations about their continued application to individual geographical indications (paragraph 1). The exceptions cannot be used to diminish the protection of geographical indications that existed prior to the entry into force of the TRIPS Agreement (paragraph 3). The TRIPS Council shall keep under review the application of the provisions on the protection of geographical indications (paragraph 2).

Industrial designs Back to top

Article 25.1 of the TRIPS Agreement obliges Members to provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

Article 25.2 contains a special provision aimed at taking into account the short life cycle and sheer number of new designs in the textile sector: requirements for securing protection of such designs, in particular in regard to any cost, examination or publication, must not unreasonably impair the opportunity to seek and obtain such protection. Members are free to meet this obligation through industrial design law or through copyright law.

Article 26.1 requires Members to grant the owner of a protected industrial design the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

Article 26.2 allows Members to provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.

The duration of protection available shall amount to at least 10 years (Article 26.3). The wording “amount to” allows the term to be divided into, for example, two periods of five years.

Patents Back to top

The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability. It is also required that patents be available and patent rights enjoyable without discrimination as to the place of invention and whether products are imported or locally produced (Article 27.1).

There are three permissible exceptions to the basic rule on patentability. One is for inventions contrary to ordre public or morality; this explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment. The use of this exception is subject to the condition that the commercial exploitation of the invention must also be prevented and this prevention must be necessary for the protection of ordre public or morality (Article 27.2).

The second exception is that Members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).

The third is that Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. Moreover, the whole provision is subject to review four years after entry into force of the Agreement (Article 27.3(b)).

The exclusive rights that must be conferred by a product patent are the ones of making, using, offering for sale, selling, and importing for these purposes. Process patent protection must give rights not only over use of the process but also over products obtained directly by the process. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts (Article 28).

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties (Article 30).

The term of protection available shall not end before the expiration of a period of 20 years counted from the filing date (Article 33).

Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application (Article 29.1).

If the subject-matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process, where certain conditions indicating a likelihood that the protected process was used are met (Article 34).

Compulsory licensing and government use without the authorization of the right holder are allowed, but are made subject to conditions aimed at protecting the legitimate interests of the right holder. The conditions are mainly contained in Article 31. These include the obligation, as a general rule, to grant such licences only if an unsuccessful attempt has been made to acquire a voluntary licence on reasonable terms and conditions within a reasonable period of time; the requirement to pay adequate remuneration in the circumstances of each case, taking into account the economic value of the licence; and a requirement that decisions be subject to judicial or other independent review by a distinct higher authority. Certain of these conditions are relaxed where compulsory licences are employed to remedy practices that have been established as anticompetitive by a legal process. These conditions should be read together with the related provisions of Article 27.1, which require that patent rights shall be enjoyable without discrimination as to the field of technology, and whether products are imported or locally produced.

Layout-designs of integrated circuits Back to top

Article 35 of the TRIPS Agreement requires Member countries to protect the layout-designs of integrated circuits in accordance with the provisions of the IPIC Treaty (the Treaty on Intellectual Property in Respect of Integrated Circuits), negotiated under the auspices of WIPO in 1989. These provisions deal with, inter alia , the definitions of “integrated circuit” and “layout-design (topography)”, requirements for protection, exclusive rights, and limitations, as well as exploitation, registration and disclosure. An “integrated circuit” means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function. A “layout-design (topography)” is defined as the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. The obligation to protect layout-designs applies to such layout-designs that are original in the sense that they are the result of their creators' own intellectual effort and are not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of their creation. The exclusive rights include the right of reproduction and the right of importation, sale and other distribution for commercial purposes. Certain limitations to these rights are provided for.

In addition to requiring Member countries to protect the layout-designs of integrated circuits in accordance with the provisions of the IPIC Treaty, the TRIPS Agreement clarifies and/or builds on four points. These points relate to the term of protection (ten years instead of eight, Article 38), the applicability of the protection to articles containing infringing integrated circuits (last sub clause of Article 36) and the treatment of innocent infringers (Article 37.1). The conditions in Article 31 of the TRIPS Agreement apply mutatis mutandis to compulsory or non-voluntary licensing of a layout-design or to its use by or for the government without the authorization of the right holder, instead of the provisions of the IPIC Treaty on compulsory licensing (Article 37.2).

Protection of undisclosed information Back to top

The TRIPS Agreement requires undisclosed information -- trade secrets or know-how -- to benefit from protection. According to Article 39.2, the protection must apply to information that is secret, that has commercial value because it is secret and that has been subject to reasonable steps to keep it secret. The Agreement does not require undisclosed information to be treated as a form of property, but it does require that a person lawfully in control of such information must have the possibility of preventing it from being disclosed to, acquired by, or used by others without his or her consent in a manner contrary to honest commercial practices. “Manner contrary to honest commercial practices” includes breach of contract, breach of confidence and inducement to breach, as well as the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.

The Agreement also contains provisions on undisclosed test data and other data whose submission is required by governments as a condition of approving the marketing of pharmaceutical or agricultural chemical products which use new chemical entities. In such a situation the Member government concerned must protect the data against unfair commercial use. In addition, Members must protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.

Control of anti-competitive practices in contractual licences Back to top

Article 40 of the TRIPS Agreement recognizes that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology (paragraph 1). Member countries may adopt, consistently with the other provisions of the Agreement, appropriate measures to prevent or control practices in the licensing of intellectual property rights which are abusive and anti-competitive (paragraph 2). The Agreement provides for a mechanism whereby a country seeking to take action against such practices involving the companies of another Member country can enter into consultations with that other Member and exchange publicly available non-confidential information of relevance to the matter in question and of other information available to that Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member (paragraph 3). Similarly, a country whose companies are subject to such action in another Member can enter into consultations with that Member (paragraph 4).

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