The Trademark Provisions in the TRIPS Agreement
Intellectual Property and International Trade: TRIPS Agreement (3d ed.) (Carlos M. Correa ed., Wolters Kluwer 2016)
36 Pages Posted: 22 Oct 2019
Date Written: 2016
In this chapter, we outline the provisions introduced by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with respect to trademarks. Similar to the provisions related to patents, copyright, and other rights, section II of Part II of TRIPS (Articles 15–21) mandates minimal trademark standards – such as requirements for protection, rights granted, duration of protection, and requirements for trademark transactions – for the Members of the World Trade Organization (WTO). Following the general principles adopted as part of the TRIPS’ framework, section II does not require that WTO Members to adopt specific mechanisms to implement the mandated TRIPS' standards on trademarks into their national laws. Instead, WTO Members remain free to implement the mandated trademark standards based on their existing and/or preferred national laws, subject to the general principles of: (a) national treatment that is provided under Article 3 of TRIPS (specifically dictating equal treatment for, or non-discrimination between, foreign and domestic individuals and companies in their respective territories); and (b) the most-favored-nation treatment under Article 4 of TRIPS (under which any “advantage, favor, privilege, or immunity” granted to the nationals of a WTO Member will be extended to the nationals of other WTO Members). Following the general rule in Article 64 of TRIPS, WTO Members are also empowered to challenge other Members under the WTO Dispute Settlements Understanding (DSU) should they believe that the national laws of the challenged Member violates or does not fully comply with the TRIPS mandated trademark standards.5 Article 1 of TRIPS additionally imposes the compliance of WTO Members with certain provisions on trademarks of the Paris Convention for the Protection of Intellectual Property (Paris Convention).
Keywords: Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), trademark
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