Regulation in the frame of WTO
Agreement on the trade-related aspects of intellectual property rights (TRIPS) is one of the fundamental documents to which provisions the legislation of all WTO member-state should conform. First of all, they establish minimum standards in relation to availability volume and use of such intellectual property categories as copyright and related rights, trade marks, geographical indications, industrial patterns, patents, protected information and topologies of integrated microcircuits. However, unlike the international conventions in this sphere, the TRIPS Agreement stipulates a mechanism on settlement of disputes as well as the measures of the intellectual property rights protection in case of the infringement of those rights.
The first part of TRIPS Agreement contains general provisions and such guiding principles of WTO as national regime and the regime of most favored nation. According to those principles, each member-state should provide the other member-states citizens with the regime equally favorable as the regime provided to its own citizens and any advantages, privileges or immunities provided by a member-state to the other state citizens should be immediately and unconditionally applied to the citizens of all other member-states.
In the sphere of copyright and related rights, the agreement requires observances of the Berne Convention provisions. The exception is articles 6 bis, which specifies protection of moral rights. Besides, protection by the copyright norms extends only to the forms of expression, but not to ideas, procedures, and methods of work or mathematic concepts. Term of copyright protection is at least 50 years.
Provision on the use of trademarks specify that as trademark can be considered any designation or any combination of designations by means of which one can distinguish goods or services of one enterprise from the goods or services of another one. In particular, according to TRIPS this may be words, proper nouns, letters, figures, pictorial elements and color combinations as well as any combinations of all those designations.
In relation to geographic designations, one of obligations for member-states is the ban to use any means to designate a good, which specifies that this good originates from geographic region different from its real place of origin. In this case, a purpose is to prevent the people confusion in respect of geographic origin of this good. Additional protection of geographic designations is stipulated for wines and alcoholic beverages. For instance, use of geographic designation of the good not originated from the place indicated by such geographic designation is forbidden even if there is indicated real original of the goods or geographic designation was translated or contains such expressions as type, kind, in the style of, imitation or similar. Besides, at the present time, there is considered a matter of establishment of multilateral system for the notification and registration of geographic indications for wines protected in the member-states participating in this system.
As for the patent protection, in accordance with TRIPS, this protection is stipulated in relation to any inventions provided that they are of modernity, inventive level and exploitable. Exceptions from the sphere of patented inventions are diagnostic, therapeutic and surgical methods of treatment of humans and animals as well as plants and animals. However, member-states provide protection of grades of plants either by the issuance of patents or by the application of special system.
Protection of Intellectual Property Rights
The third part of the TRIPS Agreement stipulates provision of protection of intellectual property rights. It includes an obligation of member-states to offer holders of rights the possibility to apply for civil and administrative proceedings.
In cases where there is a probability that any delay can inflict irreparable harm on a holder of a right or where there is obvious risk that evidences will be obliterated, judicial bodies have a right to take provisional measures such as an arrest of supposed infringing commodity or prohibition against its sale.
Within the agreement there are special requirements to boundary measures. According to its provisions, member-states shall take measures which enable holder of right having reason to suspect that counterfeit goods can be imported to submit to competent authorities the application on suspension by customs authorities the release of such goods for free circulation. Besides, the agreement specifies additional powers of customs authorities which enable to suspend release of such goods on own initiative without the application of the holder of right.
Use of criminal procedures and punishments is stipulated in case of intentional application of illegal trademarks or violation of copyright in commercial scale. Preventive measures include prison confinement, money penalties, arrest, seizure and destruction of counterfeit goods and any materials and equipment used in most part in the wrongdoing.