TRIPS Agreement Research Articles

Challenges Faced by the WTO Framework in Addressing Unilateral Economic Sanctions: The Case of US Sanctions Against Huawei

In the context of increasing economic sanctions among countries and the prevalence of trade protectionism, the choice of trade partners by governments has shifted away from aligning with free market competition principles. Instead, they now prioritize collaboration with allied nations within their respective blocs to ensure security and stability. This shift has undoubtedly posed significant challenges to all multilateral international economic organizations, particularly the WTO. Due to the mutual imposition of sanctions between nations, the existing legal frameworks and institutional structures are inadequate in effectively guiding countries to redirect economic competition away from resource consumption. On the contrary, they fail to constrain the unilateral actions of hegemonic states that infringe upon the sovereignty and human rights of sanctioned nations, thereby inflicting harm on the global economy. This article discusses the characteristics and evaluations of unilateral economic sanctions and analyzes the intellectual property aspects of the Huawei sanction case. By examining the legality of Articles 27, 28, and 40 of the TRIPS Agreement, the study assesses the actual impacts of these sanctions. Furthermore, it identifies existing deficiencies within the WTO concerning international intellectual property law and highlights the challenges posed by technological advancements, the maintenance of global supply chains, and the need to steer competition away from a Thucydides Trap towards a trajectory more conducive to global economic development.

Formulation of Secondary Meaning Evidence in Trademark Infringement Disputes in Indonesia (Comparative Study of the United States and Thailand)

This study aims to analyze the regulation of secondary meaning and the formulation of proving secondary meaning within the trademark legal regime in Indonesia. The research employs a normative juridical method, supported by statutes, conceptual, and comparative approaches. The data used in this study consist of legal instruments such as Law Number 20 of 2016 concerning Trademarks and Geographical Indications, the TRIPs Agreement, the US Lanham Act, and Trademark Law. The results of this study indicate that Indonesia has not yet accommodated the regulation of secondary meaning in Law Number 20 of 2016 concerning Trademarks and Geographical Indications. In practice, there is no clear standard to determine whether a descriptive mark has acquired secondary meaning, which leads to case-by-case proof. It contrasts countries such as the United States and Thailand, which are provisions for proving secondary meaning. The absence of a provision for proving secondary meaning creates a legal vacuum when trademark infringement disputes arise. Therefore, there is a need for legal reform to regulate the proof of secondary meaning in trademark cases. A formulation for proving secondary meaning could be incorporated into Article 76 of Law 20/2016, which addresses trademark cancellation, by providing an exception for trademarks that have established secondary meaning through consumer association. Alternatively, the proof of secondary meaning could be considered during the substantive examination of trademark registration.

"Discussing Well-known Trademarks": Analysis of the Essence of the Well-known Trademark System Based on the Case of "Ctrip" Trademark Infringement

In the field of trademarks, the academic circle has been exploring the specific legal protection of recognized trademarks. Even though the Paris Convention and the TRIPs Agreement provide written guidance around the world, domestic experts have yet to agree on the level of protection of well-known trademarks by international contractual obligations. However, whether it is the debate in the industry or the consensus of the public, it is only concerned about how a reputation mark should be applied or owned, but few people seem to ask what a "well-known mark" is or what the essence of a "well-known mark" is. Therefore, this article will reveal its essence through the analysis of the "Ctrip" trademark infringement case.

The Impact of TRIPS-Driven Data Exclusivity on Pharmaceutical Innovation in India: Balancing Patent and Public Health

The lack of data exclusivity regulations in India presents substantial issues to the pharmaceutical sector, public health, and international trade compliance. Data exclusivity, which limits the reuse of clinical trial data by generics manufacturers for a predetermined period of time, encourages pharmaceutical innovation by preserving the investments of originator companies. India's present structure allows generic manufacturers to exploit this data without the need for extra clinical trials, which promotes affordable drug access and has helped India become a key global provider of low-cost pharmaceuticals. However, this strategy raises questions about intellectual property protection and compliance with the WTO's TRIPS Agreement rules. This research investigates these ramifications via the lenses of industry, public health, and trade compliance. For the pharmaceutical business, the lack of data exclusivity diminishes incentives for expensive R&D investments, potentially limiting future drug development. Internationally, India's noncompliance with data exclusivity norms affects trade ties with partners such as the United States and the European Union, which complain that it limits market access for originator firms. Introducing data exclusivity regulations could increase R&D investment, promote innovation, and strengthen India's position in trade negotiations. A balanced strategy, combining data exclusivity with measures for vital drugs and public health safeguards, would boost both innovation and access.

TRIPS Agreement and the experience of Kenya regarding patents and compulsory licensing of HIV/AIDS drugs

Abstract Although the TRIPS Agreement establishes minimum standards for the protection of intellectual property, it also leaves some room for policy interpretation by WTO members, whether they are developed or developing nations. This allows them to implement the Agreement’s provisions in a variety of ways and to enact legislation in areas that are not covered by the Agreement’s minimum standards. The Doha Declaration on TRIPS and Public Health specifically recognizes the importance of the implementation of TRIPS flexibilities for the design of a pro-competitive intellectual property system and, in particular, for achieving public health objectives. The paper draws general aspects of the TRIPS agreement, requirements to be part of the TRIPS agreement, implementation of patent protection, the DOHA declaration and lastly a case study regarding compulsory licensing of HIV/AIDS drugs.

The Legality of Surrogate Advertisement, and Its Infringements with Respect to Trademarks

Surrogate advertising is a contentious marketing strategy whereby companies promote restricted products, such as alcohol and tobacco, by advertising permissible goods like mineral water or soda that bear similar brand identities. This practice raises legal and ethical concerns as it often circumvents public health regulations designed to limit the promotion of potentially harmful products. In India, surrogate advertising is regulated by stringent laws, including the Cable Television Networks Act, 1995, the Cigarettes and Other Tobacco Products Act, 2003, and the Advertising Standards Council of India (ASCI) Code. These regulations aim to restrict surrogate promotions that mislead consumers and blur distinctions between prohibited products and their associated brand extensions. This Article explores the legal framework surrounding surrogate advertising in India, highlighting how major brands like Kingfisher have effectively used surrogate products to maintain visibility and brand identity despite advertising restrictions and how the trademark has been infringed . It delves into the conflict between brand rights and public welfare, examining whether trademark holders have a positive right to freely use their trademarks in advertising or whether such rights are inherently limited by public policy considerations. By analyzing statutory guidelines, case law, and global standards such as the TRIPS Agreement, this study evaluates the balance between protecting public interests and preserving trademark rights in advertising practices, ultimately offering insights into potential policy reforms for mitigating the impact of surrogate advertising on consumer perception and public health.

Reconciling patent rights and the human right to access to essential medicines: A critical review

Over 80% of the world’s population lives in developing nations, with limited access to medicines like AIDS and malaria. Competition between patented and generic medications can improve access and lower prices, but counterfeit medicines should be avoided. The Doha Declaration, released at the World Trade Organisation Ministerial Conference in 2001, aims to support nations’ rights to safeguard public health and encourage access to medicines. It aims to influence the interpretation and application of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner that is health-friendly, considering the responsibility of nations to uphold health rights under international law. The Declaration calls for developed nations to encourage practical solutions for poor people in developing countries, emphasizing that trade agreements should be secondary to defending human rights and achieving the best quality of health for all. International human rights treaties protect the universal human right to health, but rigid trade agreements on patents can hinder affordable medication for low-income populations in developing nations. TRIPS, a treaty that protects intellectual property rights and promotes technological innovation, aims to provide inexpensive medications for HIV/AIDS patients through exclusions from patent admissibility, exceptions, parallel importing, and compulsory licensing.

The Basmati rice war between India and Pakistan

The current study highlights the challenges for GI protection of trans-border products, in Basmati rice. Various international treaties, e.g., Lisbon Agreement, Paris convention, and TRIPS Agreement describe partly the protection of geographical indications (GIs) or appellations of origin. Both India and Pakistan are TRIPS member countries and claim Basmati rice as their GI and have tagged Basmati as GI in their respective territories. Europe is an expanding market for Basmati, and EU is implementing import regulations on food products based on GI reputation for high quality products. India has sought GI protection of Basmati rice in EU followed by staunch opposition by Pakistan. Current study will briefly highlight the recent developments of this GI dispute on Basmati rice between India and Pakistan in EU,New Zealand and Australia.

Patent Abuse in the Context of International Law

Misuse of intellectual property rights is not uncommon, and often occurs particularly between developed and developing countries. This has a great negative impact on the progress of developing countries, global scientific and technological development and economic efficiency. The author hopes to strengthen the attention to this problem and effectively regulate the abusive behavior through the study of this issue. The definition of intellectual property abuse is vague, and this paper provides a preliminary understanding by summarizing the four basic constituent elements. Focusing on patent trolls, the paper analyzes the embodiment of intellectual property abusive behaviors and coping strategies. This paper analyzes the Wireless Planet v. Huawei case related to standard essential patents against the background of the TRIPS Agreement, FRAND principle, and the combination of trade barriers and breakthroughs to the traditional jurisdictional system of patent rights. In addition, this paper compares the intellectual property laws of China and the United States, and China and Japan, and analyzes the antagonism between developed home and developing home in this field.

Reviewing the Standards for protection of Geographical Indications in Tanzania: A case of Kyela Rice

This paper examines the standards for effective protection of Geographical Indications in Tanzania. The Trade-Related Aspects of Intellectual Property Rights Agreement (herein after the TRIPS Agreement) provides for obligations of state parties to the Agreement to protect intellectual property rights in their respective countries. However, the TRIPS Agreement does not specifically state the conditions or standards for the protection of geographical indications. This paper reviewed various legal instruments to establish the essential standards that can be adopted to protect geographical indications of Kyela Rice. The methodology used to collect data is documentary review and data are analyzed using content analysis.

A Comparative Analysis of Patent Laws in Afghanistan and the TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights provides for a minimum standard of Intellectual protection. All WTO member countries are under an obligation to comply with the provision of provisions Agreement. Afghanistan, as a member of the WTO, in the case of intellectual property rights, committed to full implementation of the provision of the TRIPS Agreement. Hence, is required to coordinate all its trade law, including patent law. This research paper examines Afghanistan's patent regime in relation to the RTIPs Agreement. The paper provides a comprehensive overview of the fundamental concept of patents and the historical background of patents in the legal system of Afghanistan. It then delves into an analysis of the law and regulations in Afghanistan, evaluating their compliance with the TRIPs agreement. The findings of this research indicate that Afghanistan patent law is compatible with the minimum standard of patent protection in the TRIPs Agreement. Nevertheless, Afghanistan’s patent law is insufficient, there are certain legal lacuna in its provisions which must be amended.

<b>The Crossroad between Intellectual Property and Clinical Trials: Balancing Incentives for Innovation w</b>ith Access to Healthcare

The interplay between intellectual property rights (IPRs) and clinical trials presents a complex challenge in the realm of healthcare innovation. This paper examines the critical role of IPRs, particularly patents, in incentivizing pharmaceutical research and development while simultaneously addressing their implications for access to essential medicines, especially in low- and middle-income countries (LMICs). We explore the phases of clinical trials that underpin medical advancements and highlight the significant financial and temporal investments required for drug development. The discussion also delves into the tensions created by monopolistic pricing, data exclusivity, and evergreening practices that hinder equitable access to healthcare. Through a review of international agreements like the TRIPS Agreement and case studies on HIV/AIDS, hepatitis C treatments, and COVID-19 vaccines, we illustrate the urgent need for policy reforms and alternative incentive models, including prize funds, patent pools, and tiered pricing strategies. Our findings underscore the necessity for a balanced approach that fosters innovation while ensuring that life-saving medications are accessible to all populations. Ultimately, this paper calls for collaborative efforts among governments, international organizations, and the private sector to create an equitable healthcare landscape that prioritizes public health needs without stifling innovation.

International legal regulation of the conclusion of agreements on the transfer of technologies and the protection of intellectual property rights during the international transfer of technologies

The article is devoted to the study of international legal regulation of the conclusion of agreements on the transfer of technologies and the protection of intellectual property rights during the international transfer of technologies. The focus is on the activities of international state organizations of the UN system (there is studied the source base of the Body of the UN General Assembly – UNCTAD, the UN Economic Commission for Europe – UNECE, the UN Commission on International Trade Rights – UNCITRAL, special attention is paid to the activities in the development of various aspects of technology transfer of the World IntellectualProperty Organization – WIPO; the main aspects of technology transfer of the TRIPS Agreement of the World Trade Organization – WTO are being defined, as well as the ones of the documents of other international organizations in this field: the World Bank, the International Federation of Consulting Engineers – FIDIC, the European Development Fund. In particular, the author examines main principles and characteristic features of the key documents of these international organizations, as well as approaches to the regulation of certain aspects of technology transfer in international law, that have changed over time.

On some aspects of the WTO Jurisprudence and Dispute Settlement Mechanism

The paper first explores certain aspects of dispute resolution mechanism implemented within the World Trade Organization and then proceeds with the legal analysis of a number of legal presumptions, concepts and principles both of procedural and substantive legal nature developed and applicable within the framework of the above mentioned mechanism for resolving disputes between the WTO member-states. The Paper examines the main features that distinguish the dispute resolution mechanism used within the WTO from the GATT mechanism, which mechanism, i/e/ the one implemented within the WTO framework, is recognized to be more legal in nature in contrast to the more political nature of the GATT dispute resolution mechanism, given that under the GATT mechanism the direct negotiations had more weight in reaching the final settlement than within the WTO system, where formal juridical disciplines, as the practice of dispute settlement indicates, play far more role and has become a key element of the system. Also, certain procedural presumptions and principles applicable in the adjudication process as well as the procedure and feature characteristic for the enforcement of decisions are examined in the paper based on and with reference to the number of panel and Appellate Body decisions. Decisions delivered by panels and the Appelate Body represent a very important tool for the interpretation of the WTO law and shapes the practice of its implementation. In this regard, although it is not considered a formal source, Appelate Body and panel decisions should be considered as an important source of both procedural and substantive WTO law. The DSB practice established under the GATT/WTO law, on the one hand, defines a set of applicable procedural rules and on the other hand, develops the WTO substantive law by way of developing the criteria and rules governing the application of provisions of the WTO agreements and other sources governing rights and obligations of the member-states. Particular attention in this regard is paid to the peculiarities of the application of the principle of responsibility for lawful actions applied in the WTO jurisprudence, under the relevant WTO agreements and more specifically under the GATT, GATS, TRIPS and SCM Agreements. Also a number of procedural concepts the principles e.g. the “prima facie case”, “rational relationship” elaborated in the “Hormone” case, principle of multi-criteria assessment initially applied in «Korea - fresh, chilled and frozen meat» case and negative presumption rule applied by the panels are analysied.

Legal Protection of Trade Secrets, Industrial Design And Integrated Circuit Layout Design In Indonesia

The government of Indonesia is compelled to bring national rules for the protection of intellectual property rights into line with international norms as a result of the ratification of TRIPs. This study employs a qualitative descriptive research strategy rooted on normative legal theory. In order to assess how well national laws have met the international requirements set forth by TRIPs, data was gathered via literature reviews of primary, secondary, and tertiary legal sources. This study's overarching goal is to determine how well Indonesia's various laws pertaining to IPR—such as those pertaining to trade secrets, industrial design, and integrated circuit layout design—are in sync with the provisions of the TRIPS Agreement. The findings demonstrate that these three statutes have significantly incorporated the fundamental elements governed by TRIPs. Trade secret and integrated circuit layout design protection periods, for instance, have been tweaked to meet the bare minimum requirements imposed by TRIPs. Furthermore, national legislation have also strictly governed the exclusive rights that intellectual property holders have, such as the ability to sue for damages in a civil court and get compensation, and the criminal penalties that those who violate these rights face. Nevertheless, there were obstacles to proper legal enforcement and execution in the field, particularly with regard to the level of legal knowledge among corporate players and the general public, as this study also revealed. As a result, this study significantly advances the cause of bringing Indonesian intellectual property legislation up to par with global norms. To maximize the advantages for innovation and economic development that current legislation may provide, Indonesia has to adopt strategic initiatives including bolstering law enforcement and raising public understanding about the significance of preserving intellectual property rights.

Инструменты правовой охраны интеллектуальной собственности при осуществлении внешнеторговой деятельности

The article reviews special aspects of protection of intellectual property. The authors analyze approaches of some countries to protection of certain IP items, legal regimes. The paper highlights that it is reasonable to take into account cultural, linguistic aspects of the respective state, mindset of the local population in carrying out export activities. The paper studies special aspects of license agreements entered into in carrying out export activities. It is noted that recent evolution of information and communications technologies has substantially improved opportunities of control over outsourced activities or processes whether in one or several remote national or international locations, which has made outsourcing a more attractive option of international activities in many other spheres. The article studies special aspects of the TRIPS Agreement that introduces not only procedural provisions of review of disputes including the ones associated with violation of rights to intellectual property that bind states, but also specific right protection mechanisms to be directly applied by courts of the states that are parties to the Agreement.

Nonlinearities in the Intellectual Property-Manufacturing Growth Nexus in the Post-TRIPS Era: Evidence from a Dynamic Panel Analysis

AbstractDiscussions around the importance of intellectual property (IP) intensified at the height of the COVID-19 pandemic as countries raced to secure IP-protected goods (e.g., vaccines and medical equipment) necessary to respond quickly and adequately to the threat of the virus’ spread. Building on the growing strand of the literature that reexamines IP’s effect on an array of social and economic outcomes, this paper examines the relationship between quantitative (patents and trademarks) and qualitative (IP protection) measures of IP, on the one hand, and manufacturing growth, on the other hand, accounting for the presence of nonlinearities. Using a two-step system generalized method of moments (SGMM) approach on a panel dataset of 81 countries spanning the post-1995 TRIPS Agreement period, our estimates show that these alternative measures of IP have differential and nonlinear effects on manufacturing growth. In particular, patents have a positive significant marginal effect on manufacturing growth past a minimum scale, whereas trademarks do not have a significant effect. In contrast, stronger IPR protection has a positive effect only up to a critical level of IPR protection, implying that “too much” IPR protection can stifle growth-inducing competing innovation. The paper concludes with a brief discussion on the mechanisms through which IP may contribute to manufacturing growth, and on some policies, which may help realize this potential. Broadly, this paper speaks to academic and policy discussions surrounding optimal IP enforcement and the benefits and consequences of IP.

Is the TRIPS Agreement a double-edge sword?

Is the TRIPS Agreement a double-edge sword?

The legal basis fot the application of patent waiver settlements in the covid-19 pandemic

Background: The research on the role of the World Trade Organization in solving the vaccine patent waiver problem related to the 2019 coronavirus disease pandemic will address each issue one by one. Seeing the waiver applications that were made from the end of 2020 to 2022, it is necessary to further study the legal basis and enforcement of patents. Coupled with its relation to public health and equality for the global world to achieve. This study aims to provide an understanding of the role of the WTO in the patent waiver application process and the continuity of current and future patent law enforcement. Method: This research is a normative research with a descriptive method that will explain with the aim of obtaining a description of the events of the patent waiver application. The data that has been obtained will be analysed qualitatively. Conclusions will be obtained from various descriptive data collected from primary and secondary sources that have been analysed. In this regard, this research will be descriptive-analytical in nature which will reveal existing regulations and their implementation. Findings: The results of this study are that the WTO has carried out its roles and functions in accordance with applicable international legal instruments. However, this research emphasises further on the principles of the WTO itself which emphasises justice for developing and less developed countries on the other words called Special and Differential Treatment of Developing Countries (SDT). Coupled with the existence of the Doha Declaration which should emphasise that public health should take precedence over intellectual property rights, including patents. Conclusion: Regarding the WTO's role in resolving vaccine patent issues during the COVID-19 pandemic, it can be concluded that the actions taken by the WTO, including its internal bodies and councils, adhere to applicable legal principles and the TRIPs Agreement. However, the decisions must fully align with the WTO's principles, particularly the Special and Differential Treatment of Developing Countries (SDT). Novelty/Originality of this study: This study analyzes the role of the WTO in resolving vaccine patent issues during the COVID-19 pandemic, focusing on the SDT principles and the Doha Declaration. It reveals the gap between international law and global health needs, offering a framework for balancing intellectual property rights with public health needs.

A Regulatory Governance Perspective on IP and Access to Medicines – A Fresh Look Into the TRIPS Agreement

A Regulatory Governance Perspective on IP and Access to Medicines – A Fresh Look Into the TRIPS Agreement