The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations and has played an important role in the international protection of intellectual property since 1967. Headquartered in Geneva, it has 1 16 member countries. WIPO mainly operates four international conventions: Paris Convention, Berne Convention, Madrid Convention and Rome Convention, covering the most important aspects of intellectual property rights such as patents, trademarks, copyrights and trade secrets. However, some countries such as the United States are not satisfied with WIPO's regulations on the level of intellectual property protection. So in 1986, the US government turned to GATT to strengthen the level of intellectual property protection. This effort is embodied in the Agreement on Trade-related Aspects of Intellectual Property Rights drafted by Deng in February 2000. TRIPS Agreement and WIPO both adopted the principle of national treatment, but the former stipulated the minimum protection standard of intellectual property rights very specifically, and also stipulated the most-favored-nation treatment (MFN treatment). These two points are not stipulated in WIPO and are also pursued by developed countries such as the United States. The specific differences between TRIPS and WIPO in intellectual property protection are as follows:
1, in terms of patent protection
1) About compulsory license. The Paris Convention stipulates that compulsory non-exclusive license is allowed if the patent right is not exercised. That is to say, if the right holder does not exercise his patent right, the governments of member countries can license others to use the patent without the permission of the right holder, and will not be liable for tort compensation. Although the TRIPS agreement also stipulates the obligation of non-exclusive compulsory license, it also stipulates very limited implementation conditions, and the compulsory license is limited to a limited scope and duration; It also provides for compensation to the patentee and judicial review of such compulsory license and compensation amount.
2) About the duration of patent protection. The Paris Convention does not stipulate the minimum patent protection period, and the TRIPS Agreement stipulates that the protection period is 20 years.
3) Publication and request of patent. The Paris Convention does not mention the publication and request of patents, but the Patent Law Agreement stipulates the publication and request of patents. TRIPS Agreement is published and requested in the United States.
4) About the protected object. The Paris Convention does not specify the object of patent protection. TRIPS agreement extends the protection object from patent invention to morality, including protecting human, animal or plant life or health, or avoiding serious damage to the environment. The Agreement on Trade-related Aspects of Intellectual Property Rights allows members to extend patent protection to diagnosis, treatment and surgical methods of humans and animals, as well as diagnosis of plants. TRIPS Agreement does not extend patent protection to microbial and abiotic aspects, and microbial processing of plant and animal products.
5) About patent application. The Paris Convention makes no mention of patent applications. The Paris Convention stipulates the standards of patents: novelty, progressiveness (non-obviousness) and industrial practicability. The TRIPS agreement also stipulates the same standard. The proposed patent law agreement also requires novelty, progressiveness and practicality or industrial practicality.
6) About the grant of rights. The Paris Convention does not specify the power to grant patent rights. The TRIPS Agreement describes the rights enjoyed by the patentee as manufacturing, using, selling, licensing or importing illegal patented products or patented methods.
2. trademarks.
The Madrid Agreement does not stipulate the minimum standards for trademark protection. This is an agreement on the registration procedure. Each negotiating country examines the application for trademark registration according to its domestic law. The agreement stipulates that the period of international registration of trademark rights is 20 years, but the provisions on trademark renewal are not clear. TRIPS agreement only stipulates that the term of trademark right is seven years, and it can be renewed after expiration.
The Paris Convention stipulates that at least five years after the registration of a trademark, others may request the cancellation of the trademark. TRIPS agreement stipulates that a registered trademark can be revoked if the right holder does not use it for at least 3 years.
TRIPS requires all member countries to protect trademark rights in order to meet the minimum protection standards stipulated in the agreement. The TRIPS Agreement gives the owner of a registered trademark the exclusive right to use the trademark to prevent the third party from using the logo similar to the registered trademark on the goods and causing confusion with the registered trademark. Article 20 of the Agreement on Trade-related Aspects of Intellectual Property Rights prohibits linking local trademark designs with foreign registered trademarks. This article also prohibits setting unreasonable obstacles to the use of a trademark, such as the need to use it together with another trademark.
TRIPS agreement extends trademark protection to service trademarks. TRIPS Agreement recognizes the fair use of trademarks, as long as the legitimate interests of trademark owners are considered. TRIPS Agreement prohibits compulsory licensing of trademark rights.
The relevant provisions of the TRIPS Agreement stipulate the protection of the name of origin, that is, if a trademark logo is used on a commodity, it will mislead the public to misunderstand the origin of the commodity and is not allowed. Trademarks cannot be registered with false geographical sources. The protection of origin names in TRIPS Agreement is similar to the Lisbon Agreement of WIPO and its international registration. However, the names specified in the TRIPS agreement may greatly exceed the 16 names in the Lisbon agreement.
Article 23 of the Agreement on Trade-related Aspects of Intellectual Property Rights requires member countries to give high standards of protection to false geographical indications of the origin of wine products. It should meet a standard, not mislead the public and eliminate any danger of confusion. The right to use pseudonyms is also stipulated. The newly stipulated rights have basically reached a settlement agreement between French breweries to claim intellectual property rights in geographical indications. This refers to brandy. American wineries also use French geographical indications such as brandy to identify their wines.
3. Copyright
In terms of copyright protection, the provisions of TRIPS Agreement and Berne Convention are basically the same. The TRIPS Agreement stipulates that members shall fully abide by the provisions of Articles 1 to 2 1 and annexes of the Berne Convention.
1) Information about the protected object
The Berne Convention requires member States to protect all literary and artistic works. The Berne Convention provides an endless list of the types of works it protects. It protects the following works: books and other written works; Dramatic or opera works; Dance works; Musical works with or without words; Film works and works similar to film expressions; Works of art, architecture and sculpture; Photographic works; Deductive works, including translation, adaptation, music adaptation, etc.
TRIPS protocol adds the compilation of computer programs and other materials to the scope of copyright protection.
2) About exclusive rights
The provisions of Berne Convention on the scope of authors' exclusive rights have been incorporated into the provisions of TRIPS Agreement. These exclusive rights include the right of reproduction; The right to perform plays, operas and musical works in public; The right to recite literary works; The right to disseminate works to the public and to perform or recite works; The right to broadcast or otherwise disseminate works to the public; Right to translate works; The right to compile, adapt or otherwise modify a work; The right to film adaptation, reproduction and distribution of works, public performance and dissemination of works, such as the right to film adaptation or reproduction.
The Berne Convention requires the protection of moral rights. These rights enjoyed by the author are independent of the author's property rights, such as the right to show the author's identity, and oppose any distortion, division or other modification or derogatory behavior that harms the author's dignity and reputation. TRIPS agreement does not protect the author's moral rights, which is an exception to the high-level intellectual property protection in this agreement.
Compared with Berne Convention, TRIPS agreement increases the lease right of computer software and film works. The TRIPS Agreement also provides for the protection of neighboring rights, including the rights of performers, film and radio producers; Neighborhood rights are also protected by the Rome Convention. However, compared with the potential members of the TRIPS Agreement, the membership of the Rome Convention is limited.
The Berne Convention stipulates that the recognition or maintenance of copyright by member States does not require any form or procedure.
3) About the protection period
Both the Berne Convention and the Agreement on Trade-related Intellectual Property Rights require that the copyright protection period be 50 years for the author's life and 25 years for photographic works and practical works of art. ..
4. Trade secrets
The World Intellectual Property Organization Convention does not provide for the protection of trade secrets. TRIPS agreement stipulates that "undisclosed information" (that is, trade secrets) should be protected. Article 39 of TRIPS Agreement stipulates that the law should prevent the disclosure of trade secrets, and the conditions that constitute trade secrets are that the information has not been made public and some reasonable steps have been taken to keep the secrets; These commercial information has commercial value, and it is precisely because of its secrecy that it has this value. The Agreement on Trade-related Aspects of Intellectual Property Rights also requires the protection of trade secrets in the fields of chemistry and medicine, which of course must be approved by the government. For example, the United States needs to protect a trade secret. The trade secret relates to a pharmaceutical combination that has obtained administrative permission from the Food and Drug Administration.