However, there are numerous treaties, conventions and agreements in place which have an important part to play.
Some examples are:
Trade marks:
1. Paris Convention of 1883
2. Madrid Agreement 1891
3. Community Trade Mark 1996
Patents:
4. European Patent Convention 1978
5. Patent Co-operation Treaty 1970
Copyright:
6. Berne Convention For The Protection of Literary and Artistic Works 1886
Intellectual Property in general:
7. GATT-TRIPS Agreement (Agreement on trade related aspects of intellectual property rights)
1. THE PARIS CONVENTION OF 1883
This sets out various minimum criteria for the registration and protection of intellectual property which signatory states are to follow. Most countries are signatories.
Amongst other things, the Paris Convention provides for:
- Equal treatment for nationals of signatory countries.
- Priority filing (six months for trade marks and designs, and twelve months for patents) whereby after your first filing in a Member Country, you then have the requisite period within which to file for registration in any or all of the other member countries and benefit from being able to claim your original filing date.
- Protection for well known marks even if they are not registered in any given Member Country.
2. THE MADRID AGREEMENT 1891
The Madrid Agreement provides a simplified and cheaper registration system for registering trade marks in signatory countries. On the basis of a "base" registration in one member country you can then apply centrally to the World Intellectual Property Organisation (WIPO) for that registration to be extended to any or all of the other member countries.
At present 46 countries are signatories to the Madrid Agreement, not including the UK. There was a recent extension to The Madrid Agreement called The Madrid Protocol which provides a modified system with the intention of enabling certain major countries to become members of the Protocol, who are not willing to become members of the Agreement itself.
Eleven countries are signatories to the Protocol (some of whom are also signatories to the Agreement). Most notably, the UK has signed up for The Madrid Protocol. The major countries who are not members either of The Madrid Agreement or The Madrid Protocol are the US and Japan. The result of a Madrid application is a bundle of National Registrations.
3. THE COMMUNITY TRADEMARK
Within the EU there is now a system which operates in a similar manner to the Madrid Agreement, with centralised filing being administered from an office in Alicante, Spain. The Community Trade Mark system has been operational since 1 April 1996. A successful application gives rise to one Community Trade Mark Registration, effective in all Member States.
4. THE EUROPEAN PATENT CONVENTION 1978
This establishes a mechanism through which an applicant may make a single application at the European Patent Office in Munich for a patent in as many of the 17 European states who are signatories as is required. This gives rise to a bundle of national patents.
5. THE PATENT CO-OPERATION TREATY 1970
The Patent Co-operation Treaty establishes a mechanism for the international filing of patent applications. On the basis of a "base" application, a centralised application can then be filed with the World Intellectual Property Organisation (WIPO) designating as many signatory countries as the applicant wishes.
The main benefits of this systems are that WIPO will provide a search report, conducted through the European Patent Office, and that the applicant has a nineteen month period within which to decide whether to pursue the application in designated states relying on the original priority date. In effect, this a cheap way of getting a good search report and of establishing a priority date for a nineteen month period.
6. THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS 1886
The Berne Convention was established to protect the rights of authors in their literary and artistic works and provides, inter alia, for equal treatment of nationals of the signatory countries. Basically the signatory countries are subject to certain uniform rules such that authors receive a broadly unified level of protection in each signatory country.
There are no formalities for the protection and exercise of literary and artistic copyright works, the essential criteria being that a national of one Member Country who creates a copyright work is entitled to protection in all other Member Countries within in their national laws.
The Universal Copyright Convention 1971 provides an alternative mechanism of international copyright recognition for countries who felt they were unable to join the Berne Convention because their national laws were fundamentally incompatible with it.
It is under The Berne Convention that the ã symbol is required in order to give reasonable notice of the author's claim to copyright.
7. THE GATT-TRIPS AGREEMENT (Agreement on trade related aspects of intellectual property rights)
TRIPS lays down minimum standards of protection to be provided by the national law of each Member State of the World Trade Organisation (WTO - formerly GATT) in each of the main intellectual property categories along with effective domestic procedures and remedies to be adopted so that the owners of intellectual property rights can adequately enforce them.
The basic theme is that the Member Countries shall accord to the nationals of other Member Countries treatment no less favourable than accorded to their own nationals with regard to the protection of intellectual property.
TRIPS is highly significant as the Member Countries of WTO bound by it represent approximately 90% of world trade (according to WTO calculations). Member Countries (depending on their state of development) have between one and ten years to put the terms of TRIPS into effect.
By virtue of this, the proper protection of pharmaceutical patents in India could result, and the implementation of proper enforcement remedies in those countries where enforcement is particularly problematic.
This has led to a flurry of legislative activity over the last few years, and this is likely to continue for a few years yet.
Dispute procedures are in place within the auspices of the WTO so that, vitally, complaints can be made and, if upheld, retaliatory trade measures can be implemented.
The content of this article is to provide only a general information on the subject. Legal advice should be sought for any specific circumstances.
For further information please contact Peter Rouse at Rouse & Co at
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