Term of protection to related right

The term of protection is at least 50 years from the end of the year of fixation or performance for performers and producers of phonograms, and 20 years from the end of the year of broadcast for broadcasting organizations.

Exception.

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 (Article 14.6). The Convention provides fro exceptions for private use, short excerpts, teaching and scientific research, etc.

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.

Copyright vs. patent.

No registration in an individual country is necessary to enjoy the protection of copyright, as is the case with patents. No disclosure is required for copyright, as is the case with patent; hence, the secret of the programming can be retained with the author.

The conditions to be satisfied for copyright are less stringent than those for patents. The protection through copyright is weak compared to that through patents. Copyright prohibits the copying of the creative expression, but permits independent creations even though based on the same ideas. Thus, such independent creations can be easily defended against charges of copying.

 

Industrial property

 

Industrial property includes inventions (patents), trademarks, industrial designs, and geographic indications of source.

Trademarks.

The agreement defines what types of signs must be eligible for protection as trademarks, and what the minimum rights conferred on their owners must be. It says that service marks must be protected in the same way as trademarks used for goods. Marks that have become well-known in a particular country enjoy additional protection.

Definition: A trademark is defined as any sign, or any combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings. Such signs include personal names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs.

Conditions for the registration of trademarks

The basic rule is that such signs must be visually perceptible. Members are free to determine whether to allow the registration of signs that are not visually perceptible (e.g. sound or smell marks).

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 be acquired through use.

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.

Rights conferred to a trademark.

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).

Well-known trademarks.

The TRIPS Agreement contains certain provisions on well-known marks, which supplement the protection required by the Paris Convention, obliges Members to refuse or cancel the registration, and to prohibit the use of a mark conflicting with a mark which is well known.

First, the provisions must be applied also to services.

Second, it is required that knowledge in the relevant sector of the public be taken into account. The knowledge can be acquired not only as a result of the use of the mark but also by other means, including as a result of its promotion.

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.

Exception.

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.

Term.

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. In other words, there will be no limit to the number of times the trademark is renewed.

Requirement of use.

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, such as import restrictions or other government restrictions arising independently of the will of the owner of the trademark. Use of a trademark by another person, when is subject to the control of its owner, must be recognized as use of the trademark for the purpose of maintaining the registration.

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.