Trips
Industrial designs geographical indications INTEGRATED circuits
Undisclosed information

ADV.MANISHA PANDYA

ROLL NO.17 * BUSINESS LAW GROUP*
LLM SEM II

SUBMITTED TO PROF.TIWARI

CONTENTS

Chapter I * INTRODUCTION * GATT*WTO* TRIPS* * -------------------------------------------------
Implementation in developing countries
Chapter II * What are intellectual property rights? * Geographical indication * Early agreements –History * Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) * -------------------------------------------------
Marketing * International trade * SECTION 3: GEOGRAPHICAL INDICATIONS Art. 22, 23, 24 Protection of Geographical Indications * Industrial design right * SECTION 4: INDUSTRIAL DESIGNS Article 25 * SEC 7: PROTECTION OF UNDISCLOSED INFORMATION Article 3
Chapter III * CONCULSION
BILOGRAPHY & WEBOLOGY
Chapter I
GATT * WTO * TRIPS*
The General Agreement on Tariffs and Trade (GATT) was a multilateral agreement regulating international trade. According to its preamble, its purpose was the "substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis." It was negotiated during the United Nations Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). GATT was signed in 1947 and lasted until 1994, when it was replaced by the World Trade Organization in 1995
In 1993, the GATT was updated (GATT 1994) to include new obligations upon its signatories. One of the most significant changes was the creation of the World Trade Organization (WTO). The 75 existing GATT members and the European Communities became the founding members of the WTO on 1 January 1995. The other 52 GATT members rejoined the WTO in the following two years (the last being Congo in 1997). Since the founding of the WTO, 21 new non-GATT members have joined and 29 are currently negotiating membership. There are a total of 157 member countries in the WTO, with Russia and Vanuatu being new members as of 2012.
Whilst GATT was a set of rules agreed upon by nations, the WTO is an institutional body. The WTO expanded its scope from traded goods to include trade within the service sector and intellectual property rights. Although it was designed to serve multilateral agreements, during several rounds of GATT negotiations (particularly the Tokyo Round) plurilateral agreements created selective trading and caused fragmentation among members. WTO arrangements are generally a multilateral agreement settlement mechanism of GATT
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986-94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for all."
Specifically, TRIPS contains requirements that nations' laws must meet for copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations. Campaigns of unilateral economic encouragement under the Generalized System of Preferences and coercion under Section 301 of the Trade Act played an important role in defeating competing policy positions that were favored by developing countries, most notably Korea and Brazil, but also including Thailand, India and Caribbean Basin states. In turn, the United States strategy of linking trade policy to intellectual property standards can be traced back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilized corporations in the United States and made maximizing intellectual property privileges the number one priority of trade policy in the United States (Braithwaite and Drahos, 2000, Chapter 7).
After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. States like Russia and China that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement.
Furthermore, unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's dispute settlement mechanism.

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Implementation in developing countries
The obligations under TRIPS apply equally to all member states, however developing countries were allowed extra time to implement the applicable changes to their national laws, in two tiers of transition according to their level of development. The transition period for developing countries expired in 2005. The transition period for least developed countries to implement TRIPS was extended to 2013, and until 1 January 2016 for pharmaceutical patents, with the possibility of further extension.
It has therefore been argued that the TRIPS standard of requiring all countries to create strict intellectual property systems will be detrimental to poorer countries' development. Many argue that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use any flexibility available in TRIPS to legislate the weakest IP laws possible.
This has not happened in most cases. A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc.) into their legislation to the extent authorized under Doha.
This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibilities, which has often led to developing countries directly copying developed country IP legislation, or relying on technical assistance from the World Intellectual Property Organization (WIPO), which, according to critics such as Cory Doctorow, encourages them to implement stronger intellectual property monopolies.

Chapter II
What are intellectual property rights?
Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
Origins: into the rule-based trade system....
Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value — for example brand named clothing or new varieties of plants.
Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”. They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brand names and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole.
The extent of protection and enforcement of these rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.
The Uruguay Round achieved that. The WTO’s TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long term when intellectual property protection encourages creation and invention, especially when the period of protection expires and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. And, when there are trade disputes over intellectual property rights, the WTO’s dispute settlement system is now available.
The agreement covers five broad issues: how basic principles of the trading system and other international intellectual property agreements should be applied how to give adequate protection to intellectual property rights how countries should enforce those rights adequately in their own territories how to settle disputes on intellectual property between members of the WTO special transitional arrangements during the period when the new system is being introduced. Basic principles: national treatment, MFN, and balanced protection
As in GATT and GATS, the starting point of the intellectual property agreement is basic principles. And as in the two other agreements, non-discrimination features prominently: national treatment (treating one’s own nationals and foreigners equally), and most-favoured-nation treatment (equal treatment for nationals of all trading partners in the WTO). National treatment is also a key principle in other intellectual property agreements outside the WTO.
The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says. How to protect intellectual property: common ground-rules
The second part of the TRIPS agreement looks at different kinds of intellectual property rights and how to protect them. The purpose is to ensure that adequate standards of protection exist in all member countries. Here the starting point is the obligations of the main international agreements of the World Intellectual Property Organization (WIPO) that already existed before the WTO was created: The Paris Convention for the Protection of Industrial Property (patents, industrial designs, etc) the Berne Convention for the Protection of Literary and Artistic Works (copyright).
Some areas are not covered by these conventions. In some cases, the standards of protection prescribed were thought inadequate. So the TRIPS agreement adds a significant number of new or higher standards.
Intellectual property rights are customarily divided into two main areas:

(i) Copyright and rights related to copyright
The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.
Also protected through copyright and related (sometimes referred to as “neighbouring”) rights are the rights of performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations. The main social purpose of protection of copyright and related rights is to encourage and reward creative work. (ii) Industrial property
Industrial property can usefully be divided into two main areas: * One area can be characterized as the protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin).

The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services. The protection may last indefinitely, provided the sign in question continues to be distinctive. * Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.

The social purpose is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities.

A functioning intellectual property regime should also facilitate the transfer of technology in the form of foreign direct investment, joint ventures and licensing. The protection is usually given for a finite term (typically 20 years in the case of patents).
While the basic social objectives of intellectual property protection are as outlined above, it should also be noted that the exclusive rights given are generally subject to a number of limitations and exceptions, aimed at fine-tuning the balance that has to be found between the legitimate interests of right holders and of users.
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Geographical indication
A geographical indication (GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation, due to its geographical origin.
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History
Governments have been protecting trade names and trademarks used in relation to food products identified with a particular region since at least the end of the nineteenth century, using laws against false trade descriptions or passing off, which generally protect against suggestions that a product has a certain origin, quality or association when it does not. In such cases, the limitation on competitive freedoms which results from the grant of a monopoly of use over a geographical indication is justified by governments either by consumer protection benefits or by producer protection benefits.
One of the first GI systems is the one used in France from the early part of the twentieth century known as appellation d'origine contrôlée (AOC). Items that meet geographical origin and quality standards may be endorsed with a government-issued stamp which acts as official certification of the origins and standards of the product to the consumer. Examples of products that have such 'appellations of origin' include Gruyère cheese (from Switzerland) and many French wines.
Geographical indications have long been associated with the concept of terroir and with Europe as an entity, where there is a tradition of associating certain food products with particular regions. Under European Union Law, the protected designation of origin framework which came into effect in 1992 regulates the following systems of geographical indications: Protected designation of origin (PDO), protected geographical indication (PGI) and Traditional Speciality Guaranteed (TSG).

Early agreements
International trade made it important to try to harmonize the different approaches and standards that governments used to register GIs. The first attempts to do so were found in the Paris Convention on trademarks (1883), followed by a much more elaborate provision in the 1958 Lisbon Agreement on the Protection of Appellations of Origin and their Registration. Few countries joined the Lisbon agreement, however: by 1997 there were only 17 members (Algeria, Bulgaria, Burkina Faso, Congo, Cuba, Czech Republic, France, Gabon, Haiti, Hungary, Israel, Italy, Mexico, Portugal, Slovakia, Togo, Tunisia). About 170 geographical indications were registered by Lisbon Agreement members as of 1997
Agreement on Trade-Related Aspects of Intellectual Property Rights
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") defines "geographical indications" as indications that identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin. Examples of geographical indications from the United States include: "FLORIDA" for oranges; "IDAHO" for potatoes; "VIDALIA" for onions; and "WASHINGTON STATE" for apples. Geographical indications are valuable to producers for the same reason that trademarks are valuable. Geographical indications serve the same functions as trademarks, because like trademarks they are: source-identifiers; guarantees of quality; and valuable business interests. Although, as mentioned above "geographical indications" are often associated with Europe, the U.S. system for protection of geographical indications can be dated to at least the Trademark Act of 1946.
In 1994, when negotiations on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") were concluded, governments of all WTO member countries (155 countries, as of 10 May 2012) had agreed to set certain basic standards for the protection of GIs in all member countries. There are, in effect, two basic obligations on WTO member governments relating to GIs in the TRIPS agreement:
Country of origin (COO) is the country of manufacture, production, or growth where an article or product comes from. There are differing origins under various national laws and international treaties.
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Marketing
From a marketing perspective, country of origin is a way to differentiate the product from the competitors. Schooler (1965) is generally considered as the first researcher to empirically study this effect. He found out that products, identical in every respect except for their country-of-origin, were perceived differently by consumers. Since then, more than 1000 studies have been published on this subject. This research shows that the country of origin has an impact on consumers' quality perceptions of a product, as well as ultimately preference for and willingness to buy that product. Furthermore, several studies have shown that consumers tend to have a relative preference to products from their own country or may have a relative preference for or aversion against products that originate from certain countries (so-called affinity and animosity countries). The effect of country of origin is however debated, with some studies questioning the relevance of academic research on country-of-origin effects for business managers. Overall, academics seem to conclude that the country with which a product is associated with, the so-called country-of-association significantly impacts consumers' product evaluations and choice, but that given the number of publications available, care should be given whether yet another study on that effect is needed.
Consumer choice
Consumers tend to utilize the country of origin more when they are less involved and less familiar. Consumers further tend to use country of origin more as a decision tool when they consider luxury products.
Country of origin and stereotypes
Research by Martin et al. (2011) shows that consumers stereotype products automatically based on country of origin. This is particularly relevant for brands with a weak country of origin (e.g., a brand produced in a country perceived as producing lower quality goods which are competing against competitors from countries stereotyped as producing high quality products). Martin et al. (2011) show that encouraging consumers to use their imaginations in positive ways can counter negative country of origin effects and that this effect can endure over time
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Labelling requirements
The requirements for Country of Origin markings are complicated by the various designations which may be required such as "Made in X", "Product of X", "Manufactured in X" etc. They also vary by country of import and export. For example: * For imports to the United Kingdom, there is a voluntary code for Food. Other products are not subject to labelling requirements, but misleading labelling can result in prosecution under the Trade. * Food exported to the United Arab Emirates must include Country of Origin
United States
Section 304 of the Tariff Act of 1930 as amended (19 U.S.C.1304) requires most imports,includes many food items, to bear labels informing the ultimate purchaser of their country of origin. Meats produce, and several other raw agricultural products generally were exempt. The 2002 farm bill (P.L. 107-171, Sec. 10816), however, contains a requirement that many retail establishments provide, starting on September 30, 2004, country-of-origin information on fresh fruits and vegetables, red meats, seafood, and peanuts. However, the consolidated FY2004 appropriation (P.L. 108-199) signed January 23, 2004, delays this requirement for two years except for seafood.[13]
The Textile Fibre Products Identification Act and Wool Products Labelling Act require a Made in USA label on most clothing and other textile or wool household products if the final product is manufactured in the U.S. of fabric that is manufactured in the U.S., regardless of where materials earlier in the manufacturing process (for example, the yarn and fibre) came from. Textile products that are imported must be labelled as required by the Customs Service. A textile or wool product partially manufactured in the U.S. and partially manufactured in another country must be labelled to show both foreign and domestic processing.
On a garment with a neck, the country of origin must be disclosed on the front of a label attached to the inside centre of the neck, either midway between the shoulder seams or very near another label attached to the inside centre of the neck. On a garment without a neck and on other kinds of textile products, the country of origin must appear on a conspicuous and readily accessible label on the inside or outside of the product.
Catalogs and other mail order promotional materials for textile and wool products, including those disseminated on the Internet, must disclose whether a product is made in the U.S., imported, or both.
The Fur Products Labelling Act requires the country of origin of imported furs to be disclosed on all labels and in all advertising.
The American Automobile Labelling Act requires that each automobile manufactured on or after October 1, 1994, for sale in the U.S. bear a label disclosing where the car was assembled, the percentage of equipment that originated in the U.S. and Canada, and the country of origin of the engine and transmission. Any representation that a car marketer makes that is required by the AALA is exempt from the Commission’s policy. When a company makes claims in advertising or promotional materials that go beyond the AALA requirements, it will be held to the Commission’s standard.
The Buy American Act requires that a product be manufactured in the U.S. of more than 50 percent U.S. parts to be considered Made in USA for government procurement purposes. For more information, review the Buy American Act at 41 U.S.C. §§ 10a-10c, the Federal Acquisition Regulations at 48 C.F.R. Part 25, and the Trade Agreements Act at 19 U.S.C. §§ 2501-2582.
The Lanham Act gives any person (such as a competitor) who is damaged by false designation Further information of origin the right to sue the party making the false claim.
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International trade When shipping products from one country to another, the products may have to be marked with country of origin, and the country of origin will generally be required to be indicated in the export/import documents and governmental submissions. Country of origin will affect its admissibility, the rate of duty, its entitlement to special duty or trade preference programs, antidumping, and government procurement.
Today, many products are an outcome of a large number of parts and pieces that come from many different countries, and that may then be assembled together in a third country. In these cases, it's hard to know exactly what the country of origin is, and different rules apply as to how to determine their "correct" country of origin. Generally, articles only change their country of origin if the work or material added to an article in the second country constitutes a substantial transformation, or, the article changes its name, tariff code, character or use (for instance from wheel to car). Value added in the second country may also be an issue.
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Geographical indications and traditional specialties (EU) (Redirected from Protected Geographical Status)

PDO logo

PGI logo

TSG logo
Three European Union schemes of geographical indications and traditional specialties known as protected designation of origin (PDO), protected geographical indication (PGI), and traditional specialty guaranteed (TSG) promote and protect names of quality agricultural products and foodstuffs.[1] They are based on the legal framework provided by the Council Regulation (EC) No 510/2006 of 20 March 2006.[2] This law (enforced within the EU and being gradually expanded internationally via bilateral agreements between the EU and non-EU countries) ensures that only products genuinely originating in that region are allowed to be identified as such in commerce. The legislation first came into force in 1992. The purpose of the law is to protect the reputation of the regional foods, promote rural and agricultural activity, help producers obtain a premium price for their authentic products, and eliminate the unfair competition and misleading of consumers by non-genuine products, [3] which may be of inferior quality or of different flavor.
These laws protect the names of wines,cheeses, hams, sausages, seafood, olives, beers, Balsamic vinegar and even regional breads, fruits, raw meats and vegetables.
Foods such as Gorgonzola, Parmigiano-Reggiano, Melton Mowbray pork pies, Asiago cheese, Camembert, Somerset Cider Brandy and Champagne can only be labelled as such if they come from the designated region. To qualify as Roquefort, for example, cheese must be made from milk of a certain breed of sheep, and matured in the natural caves near the town of Roquefort-sur-Soulzon in the Aveyron region of France, where it is infected with the spores of a fungus (Penicillium roqueforti) that grows in these caves.
This system is similar to appellation systems used throughout the world, such as the appellation d'origine contrôlée (AOC) used in France, the denominazione di origine controlled (DOC) used in Italy, the denominação de origem controlada (DOC) used in Portugal, and the denominación de origen (DO) system used in Spain. In many cases, the EU PDO/PGI system works parallel with the system used in the specified country, and in some cases is subordinated to the appellation system that was already instituted, particularly with wine, for example, and in France (in particular) with cheese, for example Maroilles (as most others) has both PDO (AOP in French) and AOC classifications, but generally only the AOC classification will be shown.

Article 22 of the TRIPS Agreement says that all governments must provide legal opportunities in their own laws for the owner of a GI registered in that country to prevent the use of marks that mislead the public as to the geographical origin of the good. This includes prevention of use of a geographical name which although literally true "falsely represents" that the product comes from somewhere else.

SECTION 3: GEOGRAPHICAL INDICATIONS
Article 22
Protection of Geographical Indications
1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. Thus, this definition specifies that the quality, reputation or other characteristics of a good can each be a sufficient basis for eligibility as a geographical indication, where they are essentially attributable to the geographical origin of the good.
2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent: (a) The use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; (b) Any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).
3. A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.
4. The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate falsely represents to the public that the goods originate in another territory. Article 23 of the TRIPS Agreement says that all governments must provide the owners of GI the right, under their laws, to prevent the use of a geographical indication identifying wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, where there is no unfair competition and where the true origin of the good is indicated or the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation" or the like. Similar protection must be given to geographical indications identifying spirits.
Article 22 of TRIPS also says that governments may refuse to register a trademark or may invalidate an existing trademark (if their legislation permits or at the request of another government) if it misleads the public as to the true origin of a good. Article 23 says governments may refuse to register or may invalidate a trademark that conflicts with a wine or spirits GI whether the trademark misleads or not.
An appellation is a legally defined and protected geographical indication used to identify where the grapes for a wine were grown; other types of food often have appellations as well. Restrictions other than geographical boundaries, such as what grapes may be grown, maximum grape yields, alcohol level, and other quality factors, may also apply before an appellation name may legally appear on a wine bottle label. The rules that govern appellations are dependent on the country in which the wine was produced.
Article 23 of the TRIPS Agreement says that all governments must provide the owners of GI the right, under their laws, to prevent the use of a geographical indication identifying wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, where there is no unfair competition and where the true origin of the good is indicated or the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation" or the like. Similar protection must be given to geographical indications identifying spirits.

Article 23
Additional Protection for Geographical Indications for Wines and Spirits
1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. Similar protection must be given to geographical indications identifying spirits when used on spirits. Protection against registration of a trademark must be provided accordingly.
2. The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member's legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.
3. In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
4. In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.
A place name is sometimes used to identify a product. This “geographical indication” does not only say where the product was made. More importantly, it identifies the product’s special characteristics, which are the result of the product’s origins.
Well-known examples include “Champagne”, “Scotch”, “Tequila”, and “Roquefort” cheese. Wine and spirits makers are particularly concerned about the use of place-names to identify products, and the TRIPS Agreement contains special provisions for these products. But the issue is also important for other types of goods.
Using the place name when the product was made elsewhere or when it does not have the usual characteristics can mislead consumers, and it can lead to unfair competition. The TRIPS Agreement says countries have to prevent this misuse of place names.
For wines and spirits, the agreement provides higher levels of protection, i.e. even where there is no danger of the public being misled.
Some exceptions are allowed, for example if the name is already protected as a trademark or if it has become a generic term. For example, “cheddar” now refers to a particular type of cheese not necessarily made in Cheddar, in the UK. But any country wanting to make an exception for these reasons must be willing to negotiate with the country which wants to protect the geographical indication in question.
The agreement provides for further negotiations in the WTO to establish a multilateral system of notification and registration of geographical indications for wines. These are now part of the Doha Development Agenda and they include spirits. Also debated in the WTO is whether to negotiate extending this higher level of protection beyond wines and spirits.
Article 24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23). For example, Members are not obliged to bring a geographical indication under protection where it has become a generic term for describing the product in question. Measures to implement these provisions should not prejudice prior trademark rights that have been acquired in good faith; and, under certain circumstances — including long-established use — continued use of a geographical indication for wines or spirits may be allowed on a scale and nature as before.
In the Doha Development Round of WTO negotiations, launched in December 2001, WTO member governments are negotiating on the creation of a 'multilateral register' of geographical indications. Some countries, including the EU, are pushing for a register with legal effect, while other countries, including the United States, are pushing for a non-binding system under which the WTO would simply be notified of the members' respective geographical indications.
Some governments participating in the negotiations (especially the European Communities) wish to go further and negotiate the inclusion of GIs on products other than wines and spirits under Article 23 of TRIPS. These governments argue that extending Article 23 will increase the protection of these marks in international trade. This is a controversial proposal, however, that is opposed by other governments including the United States who question the need to extend the stronger protection of Article 23 to other products. They are concerned that Article 23 protection is greater than required, in most cases, to deliver the consumer benefit that is the fundamental objective of GIs laws.
Article 24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23). For example, Members are not obliged to bring a geographical indication under protection where it has become a generic term for describing the product in question. Measures to implement these provisions should not prejudice prior trademark rights that have been acquired in good faith; and, under certain circumstances — including long-established use — continued use of a geographical indication for wines or spirits may be allowed on a scale and nature as before.
In the Doha Development Round of WTO negotiations, launched in December 2001, WTO member governments are negotiating on the creation of a 'multilateral register' of geographical indications. Some countries, including the EU, are pushing for a register with legal effect, while other countries, including the United States, are pushing for a non-binding system under which the WTO would simply be notified of the members' respective geographical indications.
Some governments participating in the negotiations (especially the European Communities) wish to go further and negotiate the inclusion of GIs on products other than wines and spirits under Article 23 of TRIPS. These governments argue that extending Article 23 will increase the protection of these marks in international trade. This is a controversial proposal, however, that is opposed by other governments including the United States who question the need to extend the stronger protection of Article 23 to other products. They are concerned that Article 23 protection is greater than required, in most cases, to deliver the consumer benefit that is the fundamental objective of GIs laws.
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Legal effect
In many countries the protection afforded to geographical indications by law is similar to the protection afforded to trademarks, and in particular, certification marks. Geographical indications law restricts the use of the GIs for the purpose of identifying a particular type of product, unless the product and/or its constituent materials and/or its fabrication method originate from a particular area and/or meet certain standards. Sometimes these laws also stipulate that the product must meet certain quality tests that are administered by an association that owns the exclusive right to licence or allow the use of the indication. Although a GI is not strictly a type of trademark as it does not serve to exclusively identify a specific commercial enterprise, there are usually prohibitions against registration of a trademark which constitutes a geographical indication. In countries that do not specifically recognize GIs, regional trade associations may implement them in terms of certification marks.
The consumer-benefit purpose of the monopoly rights granted to the owner of a GI also applies to the trademark monopoly right. Geographical indications have other similarities with trademarks. For example, they must be registered in order to qualify for protection, and they must meet certain conditions in order to qualify for registration. One of the most important conditions that most governments have required before registering a name as a GI is that the name must not already be in widespread use as the generic name for a similar product. Of course, what is considered a very specific term for a well-known local specialty in one country may constitute a generic term or genericized trademark for that type of product? For example, ptarmigan cheese in Italy is generically known as Parmesan cheese in Australia and the United States.
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Rural development effects of Geographical Indications
Geographical Indications are generally traditional products, produced by rural communities over generations that have gained a reputation on the markets for their specific qualities.
The recognition and protection on the markets of the names of these products allows the community of producers to invest in maintaining the specific qualities of the product on which the reputation is built. It may also allow them to invest together in promoting the reputation of the product.
Observed rural development impacts of Geographical Indications are: - a structuring of the supply chain around a common product reputation, - increased and stabilised prices for the GI product, - added value distributed through all the levels of the supply chain, - preservation of the natural resources on which the product is based, - preservation of traditions and traditional know-how, - linkages to tourism.
Obviously none of these impacts are guaranteed and they depend on numerous factors, including the process of developing the geographical indications (GI), the rules for using the GI (or Code of Practice), the inclusiveness and quality of decision making of the GI producers association and quality of the marketing efforts undertaken.
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International issues
Like trademarks, geographical indications are regulated locally by each country because conditions of registration such as differences in the generic use of terms vary from country to country. This is especially true of food and beverage names which frequently use geographical terms, but it may also be true of other products such as carpets (e.g. 'Shiraz'), handicrafts, flowers and perfumes.
When products with GIs acquire a reputation of international magnitude, some other products may try to pass themselves off as the authentic GI products. This kind of competition is often seen as unfair, as it may discourage traditional producers as well as mislead consumers. Thus the European Union has pursued efforts to improve the protection of GI internationally. Inter alia, the European Union has established distinct legislation to protect geographical names in the fields of wines, spirits, and agricultural products including beer. A register for protected geographical indications and denominations of origin relating to products in the field of agriculture including beer, but excluding mineral water, was established (DOOR). Another register was set up for wine region names, namely the E-Bacchus register. A register of the geographical indications for spirits and for any other products is still missing in the European Union and most other countries in the world. A private database project (gido database) intends to close this gap. Accusations of 'unfair' competition should although be levelled with caution since the use of GIs sometimes comes from European immigrants who brought their traditional methods and skills with them.
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Differences in philosophy
One reason for the conflicts that occur between the European and United States governments is a difference in philosophy as to what constitutes a "genuine" product. In Europe, the reigning theory is that of terroir, that there is a specific property of a geographical area, and that dictates a strict usage of geographical designations. Thus, anyone with sheep of the right breeds can make Roquefort cheese, if they are located in the part of France where that cheese is made, but nobody can make a blue sheep's milk cheese and call it Roquefort, even if they make it in such a way as to completely duplicate the process described in the definition of Roquefort.
By contrast, in the United States, the naming is generally considered to be a matter of intellectual property. Thus, the name "Grayson" belongs to Meadow creek Farms, and they have to a right to use it as a trademark. Nobody, even in Grayson County, Virginia, can call their cheese Grayson, while Meadow creek Farms, if they bought up another farm elsewhere in the United States, even if nowhere near Grayson County, could use that name. It is considered that their need to preserve their reputation as a company is the quality guarantee.
This difference causes most of the conflict between the United States and Europe in their attitudes toward geographical names.
That said, there is some overlap, particularly with American products adopting a European way of viewing the matter. The most notable of these are crops: Vidalia onions, Florida oranges, and Idaho potatoes. In each of these cases, the state governments of Georgia, Florida, and Idaho registered trademarks, and then allowed their growers—or in the case of the Vidalia onion, only those in a certain, well-defined geographical area within the state—to use the term, while denying its use to others. The European conception is increasingly gaining acceptance in American viticulture, as well, as vintners in the various American Viticulture Areas are attempting to form well-developed and unique identities as New World wine gains acceptance in the wine community. Finally, the United States has a long tradition of placing relatively strict limitations on its native forms of whiskey; particularly notable are the requirements for labelling a product "straight whiskey" and the requirement, enforced by federal law and several international agreements (NAFTA among them) that a product labelled Tennessee whiskey be a straight Bourbon whiskey produced in the state of Tennessee.
Inversely, some European products have adopted a more American system: a prime example is the Newcastle Brown Ale, which received an EU protected geographical status in 2000. When the brewery moved from Tyneside to Tad caster in North Yorkshire (approximately 150 km away) in 2007 for economic reasons, the status had to be revoked.

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Industrial design right
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or colour, or combination of pattern and colour in three dimensional forms containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
Under the Hague Agreement Concerning the International Deposit of Industrial Designs, a WIPO-administered treaty, a procedure for an international registration exists. An applicant can file for a single international deposit with WIPO or with the national office in a country party to the treaty. The design will then be protected in as many member countries of the treaty as desired. Design rights started in the United Kingdom in 1787 with the Designing and Printing of Linen Act and have expanded from there.
An industrial design right can be viewed as a sui generis intellectual property right similar to copyright.
India
India's Design Act, 2000 was enacted to consolidate and amend the law relating to protection of design and to comply with the articles 25 and 26 of TRIPS agreement. The new act, (earlier Patent and Design Act, 1911 was repealed by this act) now defines "design" to mean only the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any article, whether in two or three dimensional, or in both forms, by any industrial process or means, whether manual or mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction.
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Eligible designs
A design is defined as "the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation".
Designs may be protected if: * they are novel, that is if no design identical or differing only in immaterial details has been made available to the public; * They have individual character that is the "informed user" would find the overall impression different from other designs which are available to the public. Where a design forms part of a more complex product, the novelty and individual character of the design are judged on the part of the design which is visible during normal use.
Designs are not protected insofar as their appearance is wholly determined by their technical function, or by the need to interconnect with other products to perform a technical function (the "must-fit" exception). However modular systems such as Lego or Meccano may be protected.
SECTION 4: INDUSTRIAL DESIGNS
Article 25
Requirements for Protection
1. Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.
2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.
Industrial designs
Under the TRIPS Agreement, industrial designs must be protected for at least 10 years. Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing or embodying a design which is a copy of the protected design.
Article 26
Protection
1. The owner of a protected industrial design shall have the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
2. Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
3. The duration of protection available shall amount to at least 10 years.
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Integrated circuit layout design protection
Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property.
IC layout designs are usually the result of an enormous investment, both in terms of the time of highly qualified experts, and financially. The possibility of copying by photographing each layer of an integrated circuit and preparing masks for its production on the basis of the photographs obtained is the main reason for the introduction of legislation for the protection of layout-designs.
In United States intellectual property law, a mask work is a two or three-dimensional layout or topography of an integrated circuit (IC or "chip"), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously.
Because of the functional nature of the mask geometry, the designs cannot be effectively protected under copyright law (except perhaps as decorative art). Similarly, because individual lithographic mask works are not clearly protectable subject matter, they also cannot be effectively protected under patent law, although any processes implemented in the work may be patentable. So since the 1990s, national governments have been granting copyright-like exclusive rights conferring time-limited exclusivity to reproduction of a particular layout.
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International law
A diplomatic conference was held at Washington, D.C., in 1989, which adopted a Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty). The Treaty is open to States Members of WIPO or the United Nations and to intergovernmental organizations meeting certain criteria. The Treaty has been incorporated by reference into the TRIPS Agreement of the World Trade Organization (WTO), subject to the following modifications: the term of protection is at least 10 (rather than eight) years from the date of filing an application or of the first commercial exploitation in the world, but Members may provide a term of protection of 15 years from the creation of the layout-design; the exclusive right of the right-holder extends also to articles incorporating integrated circuits in which a protected layout-design is incorporated, in so far as it continues to contain an unlawfully reproduced layout-design; the circumstances in which layout-designs may be used without the consent of right-holders are more restricted; certain acts engaged in unknowingly will not constitute infringement. TRIPS Articles
The Treaty on Intellectual Property in respect of Integrated Circuits, also called Washington Treaty or IPIC Treaty (signed at Washington on May 26, 1989) is currently not in force, but was partially integrated into the TRIPS agreement.
Article 35 of TRIPS in Relation to the IPIC Treaty states:
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions. TRIPS
Article 2 of the IPIC Treaty gives the following definitions:
“(i) ‘integrated circuit’ means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the inter-connections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function,
(ii) ‘layout-design (topography)’ means the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture ... ”
Under the IPIC Treaty, each Contracting Party is obliged to secure, throughout its territory, exclusive rights in layout-designs (topographies) of integrated circuits, whether or not the integrated circuit concerned is incorporated in an article. Such obligation applies to layout-designs that are original in the sense that they are the result of their creators’ own intellectual effort and are not commonplace among creators of layout designs and manufacturers of integrated circuits at the time of their creation.
The Contracting Parties must, as a minimum, consider the following acts to be unlawful if performed without the authorization of the holder of the right: the reproduction of the lay-out design, and the importation, sale or other distribution for commercial purposes of the layout-design or an integrated circuit in which the layout-design is incorporated. However, certain acts may be freely performed for private purposes or for the sole purpose of evaluation, analysis, research or teaching.

SECTION 6: LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS Article 35
Relation to the IPIC Treaty
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions. Article 36
Scope of the Protection
Subject to the provisions of paragraph 1 of Article 37, Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design. Article 37
Acts Not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.
2. The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder. Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design
Integrated circuits layout designs
The basis for protecting integrated circuit designs (“topographies”) in the TRIPS agreement is the Washington Treaty on Intellectual Property in Respect of Integrated Circuits, which comes under the World Intellectual Property Organization. This was adopted in 1989 but has not yet entered into force. The TRIPS agreement adds a number of provisions: for example, protection must be available for at least 10 years.
INTRODUCTION
Undisclosed information takes various forms according to the nature and it has been put to use to and the consequences. The history of recognition and protection regime of undisclosed information could be traced in nineteenth century i.e. through Paris Convention finally culminating into the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS Agreement through the World Trade Organization (WTO) mandates that Trade secrets and know-how, which have commercial value, must be protected against breach of confidence and other acts contrary to honest commercial practices. Test data submitted to governments in order to obtain marketing approval for pharmaceutical or agricultural chemicals must also be protected against unfair commercial use. It must be emphasized that the discipline of unfair competition protects fairness in commercial activities. As mentioned, under TRIPS there are no universal moral values or a unique concept of what is honest in commercial behaviour. The definition of what constitutes fair or honest practices varies among countries. They may include competitor's misrepresentation, fraud threats, defamation, disparagement, enticement of employees, betrayal of confidential information commercial bribery, among others. In many but not all jurisdictions, the misappropriation of trade secrets is regulated under unfair competition law, as is the case with the TRIPS Agreement. Section 7 Article 39 of TRIPS Agreement lays down the legal regime for the protection of undisclosed information
SECTION 7: PROTECTION OF UNDISCLOSED INFORMATION Article 39
1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.
2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:
Undisclosed information and trade secrets
Trade secrets and other types of “undisclosed information” which have commercial value must be protected against breach of confidence and other acts contrary to honest commercial practices. But reasonable steps must have been taken to keep the information secret. Test data submitted to governments in order to obtain marketing approval for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) Has commercial value because it is secret; and (c) Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data are protected against unfair commercial use.
Considering all the relevant facets of undisclosed information one fact is abundantly clear that undisclosed information has more than known relevance in the field of national and international trade. Thus keeping the moot point as to whether trade secrets are a form of Intellectual Property alive? We may note that the general opinion at the GATT negotiations was that unauthorised use of confidential information, belonging to others, is an unfair practice. On the ground of this contention or assumption only that Article 39 of TRIPS stipulates that Undisclosed Information, which is often treated as synonymous with trade secrets, can be protected as provided for in Article 10bis of the Paris Convention 1883 as revised in Stockholm in 1967. Under Clause 2 of Article 39 of TRIPS, all members are required to protect undisclosed information from commercial exploitation and under clause 3, data or information submitted to Government for regulatory or other approvals have to be protected from leakage to or theft by third parties. Even though TRIPS does not define trade secrets, it is generally accepted that information that is not generally known or accessible to persons other than those to whom it is divulged, has commercial value because it is a secret, and the owner of the secret has every intention to treat it as a secret, would constitute a trade secret. For example, any process details, or a composition, etc on which patent applications have not been filed or even those on which patents could not be granted might qualify for treatment as undisclosed information or suitably trade secret as the case may be.
When we consider the Indian regime for the protection of undisclosed information even a lay man would consider that Indian environment is full of undisclosed information, be it treatment of disease or making of sweets etc. everywhere something alike undisclosed information could be located, which generally passes from one generation to another or remains confined within a community or family members. This vast ambit of undisclosed information in India needs protection regime and India or countries alike may consider a pro- active legislation under a Sui Generis system as provided for under Article 10 bus 2 of the Paris Convention, 1883 and Articles 39(2) and 39(3) of TRIPS
AMBIT OF UNDISCLOSED INFORMATION PROTECTION
As of now undisclosed information has been considered an aspect or element of unfair competition, wherein undisclosed information of an enterprise is used by another to counter the competitive edge of the earlier enterprise. In this respect World Intellectual Property Organization (WIPO) has taken some steps to bring out the ambit of undisclosed information. Article, 6 of the WIPO Model provisions on protection against unfair competition, 1996 lays down coverage and ambit of undisclosed information.
PHARMACEUTICAL COMPANIES AND UNDISCLOSED INFORMATION PROTECTION
The most affected sector by protection or non protection of undisclosed information seems to be the pharmaceutical sector. Hue and cry has been raised by the pharmaceutical companies on use of clinical test data supplied by them to national health authorities. The question presented before all is whether national authority may use such data even for further verification purposes without authorization from the company that supplied the data initially. If strict reliance be placed on the word commercial as appearing in Article 39 then the competent national authority must be proscribed from using the data to support, clear or otherwise review second entrant applications for marketing approval for a set amount of time unless authorized by the originator. According to this interpretation, national authority reliance on the data submitted by the originator in order to assess a subsequent application constitutes unfair commercial use, even when neither the authority nor the competitor actually use the data without the originator's authorization (for instance, when approval is given without any re-examination of the data). This interpretation supports the conclusion that the innovator's data should not be allowed free-riding by generic drug companies or other manufacturers.
The legal position in case of such data is not settled completely in favour of such companies submitting data to national authorities. In One case 6 the U.S. Supreme Court recognized that the authority could use the data submitted by the originator to assess second-entrant applications. According to the law applicable at the time of the complaint, complainant was entitled to compensation, but not to exclusive use of the data. Such judicial opinion exists in other jurisdictions as well 7 wherein the Court stated that when a generic manufacturer files an Abbreviated New Drug Submission (ANDS), the safety and effectiveness of the generic product may be demonstrated by showing that the product is the pharmaceutical and bioequivalent of the innovator´s product. If the generic manufacturer is able to do so solely by comparing its product with the innovator´s product which is being publicly marketed, the Minister will not have to examine or rely upon confidential information filed as part of the innovator´s New Drug Submission (NDS).
As far as interest of pharmaceutical companies are concerned it is required that public and private interests must be balanced, which is an important factor for the existence of intellectual property legal regime. For this it is required that a line must be drawn demarcating fair and unfair commercial use. An unfair commercial use may be determined to exist, for instance, in situations in which a competitor obtains through fraud, breach of confidence or other dishonest practices, the results of testing data and uses them to submit an application for marketing approval in its own benefit. It would also apply in cases where the government provides access to undisclosed testing data in order to provide an advantage to a firm which did not produce them or share their cost.
In order to ascertain this fact of fair unfair commercial use we need to refer to mandates of Article10 bus (1) of the Paris Convention with Article 39 command of the TRIPS Agreement, which have reasonable classified the boundary of undisclosed information and protection regime for the same
It must be highlighted that Article 39 is based on the concept of unfair competition rules. According to this approach, data originators may prevent third parties from using their data only in the event that the third party has acquired the data through dishonest commercial practices. This enhances the possibilities of using existing data for the market entry of competing pharmaceutical products. In this context, it is important to note that the TRIPS Agreement flexibilities accorded to Members under the unfair competition approach are being rapidly narrowed down through bilateral and regional trade agreements.
INGREDIENTS FOR PROTECTION OF UNDISCLOSED INFORMATION
Whether any undisclosed information is protected or liable to be protected? Is there any specific requirement to be followed to bring undisclosed information with the realm of protected undisclosed information? The requirements for protection appear in Article 39 of TRIPS Agreement. Although it uses the term undisclosed information instead of the term trade secrets its substance leaves no doubt as to what was intended. It must be noted that Article 39:2 does not define what undisclosed information consists of. It only specifies the conditions that the information needs to meet in order to be deemed undisclosed and protectable i.e. it should be secret, possess a commercial value and be subject to reasonable steps, under the circumstances, to be kept secret. It may reasonably be inferred that legal regime of undisclosed information laid emphasis on the regime of trade secret protection, for example, the Uniform Trade Secrets Act in the United States protects such information having three usual characteristics i.e. of limited availability, commercial value, and protection with reasonable effort. We may analyse the various ingredients as given herein below, which are generally seen for the purpose of protection and enforcement of undisclosed information.
Misappropriation
Misappropriation is a befitting phrase for the purpose of unfair or unauthorised use of undisclosed information. To appreciate misappropriation in the context of undisclosed information we may refer to Article 39:2 of TRIPS, which states that: Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices, so long as such information meets the three requirements for protection as given under Article 39.
The footnote appended to this Article specifies the minimum number of acts that must be considered contrary to honest commercial practices, including breach of contract, breach of confidence and inducement to breach, and acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition. These enumerated acts of misappropriation are just a subset of the nonexclusive list of improper means recognized by the common law or could be seen under any statutory mandate 8.
While comparing the mandate of the TRIPS Agreement on undisclosed information with the Uniform Trade Secrets Act in the United States, it appears that Article 39 of the TRIPS Agreement is different from trade secret law in the United States in one important respect i.e. it apparently requires only injunctive relief. Article 39:2 says that owners of protected information shall have the possibility of preventing unauthorized use as described but makes no explicit provision for damages. However, in order to appreciate remedies available for unauthorised use of undisclosed information we need to see the provisions of the TRIPS Agreement as a whole. We may see that Article 1:2 of the TRIPS Agreement defines intellectual property as all categories of intellectual property that are the subject of Sections 1 through 7 of Part II. Article 39 appears in Section 7 of Part II of the TRIPS Agreement thus the undisclosed information protected under Article 39 of the TRIPS Agreement could avail all remedies prescribed under the Agreement.
Government and Undisclosed information
As already referred earlier undisclosed information has a strong relation with pharmaceutical and chemicals keeping this in perspective Paragraph 3 of Article 39 provides special protection for a certain kind of undisclosed information, which is submitted to government agencies to secure regulatory approval of pharmaceuticals and agricultural chemicals.
More specifically, it protects undisclosed test or other data, the origination of which involves considerable effort and which is submitted as a condition of regulatory approval for pharmaceutical or agricultural chemical products which utilize new chemical entities. Members are obligated both to protect such data against unfair commercial use and to protect them against disclosure not necessary to protect the public.

Chapter III
CONCULSION
Developing WTO member countries, under pressure from developed countries, agreed to the inclusion of the TRIPS Agreement in return for promised better access to developed‐country markets for manufactured and agricultural products.
Developed countries viewed intellectual property as important components of their future industrial strategies, and were dissatisfied with the level of IPR protection in the markets of many of their trading partners. This “capture” of the WTO by developed‐countries’innovating firms has been controversial; Bhagwati (2004) characterises this phenomenon a the transition of the WTO from a promoter of international trade to a “royalty collection agency”.
Despite the broad coverage of the TRIPS Agreement, patents, plant varieties and geographical indications are the only areas on which proposals have been made by developing countries, in the latter case with an aim of expanding protection.
Developed countries prompted the negotiation of the TRIPS Agreement on the argument that an expanded and strengthened protection of IPRs would bring about increased flows of foreign direct investment (FDI) and technology transfer to developing countries, and that changes in IPRs would also stimulate local innovation. Though the Agreement is not still in force, serious doubts about the extent to which such positive effects may take place have been raised
Particular attention has been paid to the effects of the TRIPS Agreement on the transfer of technology. The North-South technological gap has continued to grow since the adoption of the Agreement. Fears that the enhanced protection given to IPRs will not effectively promote the development process, but limit instead the access to technology, have been voiced by many developing countries.
Several leading scholars and institutions have found these concerns justified, and are calling for fundamentally rethinking the IPRs system in a North-South perspective. For Harvard economist Sachs,
“…the global regime on intellectual property rights requires a new look. The United States prevailed upon the world to toughen patent codes and cut down on intellectual piracy. But now transnational corporations and rich-country institutions are patenting everything from the human genome to rainforest biodiversity. The poor will be ripped off unless some sense and equity are introduced into this runaway process”.
A similar view has expressed Prof. Barton (Stanford University) who has noted that "the risk that intellectual property rights slow the movement of technological capability to developing nations, suggests that harmonization efforts might most wisely consider one common standard for developed nations and a different one for developing nations" (Barton, 1999, p. 15).
The UNDP "Human Development Report 1999" has also stated that
“The relentless march of intellectual property rights needs to be stopped and questioned. Developments in the new technologies are running far ahead of the ethical, legal, and regulatory and policy frameworks needed to govern their use. More understanding is needed –in every country- of the economic and social consequences of the TRIPS agreement. Many people have started to question the relationship between knowledge ownership and innovation. Alternative approaches to innovation, based on sharing, open access and communal innovation, are flourishing, disproving the claim that innovation necessarily requires patents”
Members should examine the extent to which developed countries have implemented specific legislative measures that are targeted to the requirements of least-developed countries. To facilitate this, developed countries should provide more specific information on any existing schemes including the precise incentives, number of applying firms, and the effectiveness of these measures. To the extent that intellectual property rules do not promote technology transfer, WTO Members should consider the establishment of additional mechanisms to facilitate access by developing and least-developed countries to technologies on a reasonable basis in order to fully implement the TRIPS Agreement, and to harmonize its operation with the broader objectives of the WTO Agreement
Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. Intellectual property rights, by nature, restrict competition. In addition, abuses of intellectual property rights may give rise to problems of cartels, including price fixing, restrictions on supply, and market and customer divisions
Members are concerned about the growing risk of intellectual property-related anti-competitive impacts. Intellectual property rights have become an important strategic tool for firms that are seeking to consolidate their dominant competitive positions through horizontal and vertical integration of international markets, and through mergers, acquisitions and other strategic alliances.
Despite this and other criticism, developing countries seem to cautiously approach possible negotiations on IPRs. In general terms, their proposals aim at making the TRIPS Agreement more balanced between the task of promoting intellectual property rights and promoting development objectives. One of the important aims of those countries is to operationalize article (Objectives) and article 8 (Principles) of the Agreement. Japan also supports that the TRIPS Agreement "deal with higher protection of intellectual property rights which has been achieved in other treaties or conventions in other fora appropriately", in an obvious reference to the WIPO Copyright treaties
The EU and Japan have also addressed the issue of the "first-to file" vs. the "first-to-invent" systems for patent application. This latter system, only practiced in the United States, is claimed to burden inventors, particularly foreign applicants in the USA, in its great majority of Japanese and European origin. According to the EU, this issue was "left aside because of lack of consensus at the end of the Uruguay Round" (WT/GC/W/115). Japan also requests that the introduction of "an early publication system of filed patent applications" be considered
Japan is the only country to advocate a "further international harmonization" of IPRs systems, since "differences in fundamental rules for protection of intellectual property rights still exist, which remain as obstacles for trade and investment"
This project examines the background and objectives of the proposals made by developing countries with an aim to reviewing the TRIPS Agreement. It also discusses issues related to the implementation of the Agreement and to the “in-built agenda”, and examines the proposals made relating to the interface between TRIPS and the Convention on Biological Diversity and for enhancing the transfer of technology to developing countries. The development of a comprehensive approach to address developing countries´ concerns relating to transfer of technology, possibly including the review of various WTO agreements, is suggested.
Implementation issues
Several developing countries have questioned certain aspects relating to the implementation of the Agreement, namely the continuous use of unilateral pressures and the lack of actual implementation of article 66.2 (incentives for the transfer of technology to Least Developed Countries- LDCs)and of article 67 (technical assistance to developing countries).
With regard to unilateral pressures, Dominican Republic and Honduras have stated that
"Ever since the end of the Uruguay Round, all countries, developed and developing alike, have been racing against time to ensure due compliance at the national level with the provisions of this Agreement. However, during the transition period granted to the developing countries, we have seen selective unilateral pressures unleashed against countries that have tried to exercise their legitimate rights in full compliance with the letter and spirit of the Agreement".
In fact, the continuous application of Section 301 of US Trade Act has perturbed the implementation of TRIPs rules in many developing countries.
Many developing countries have stressed the difficulties that they have faced to put into practice the massive legislative changes required by the TRIPS Agreement, and the little support received from developed countries. In this context, the issue of the implementation of article 66.2 to the benefit of LDCs has been raised by Egypt (WT/GC/W/109), India (WT/GC/W/147) and the African Group, which noted that no concrete steps have been demonstrated by developed countries with regard to the fulfilment of their obligations. Egypt also pointed out the need to review the implementation of article 67
For some of those countries (Cuba, Dominican Republic, Egypt, Honduras) the transitional period of article 65.2 has been insufficient to undertake the difficult and costly tasks related to the modernization of the administrative infrastructure (intellectual property offices and institutions, the judicial and customs system), the drafting of new laws with substantive and procedural provisions for the protection of IPRs, and for strengthening institutions and creating a culture for the protection of such rights. They have, therefore, requested an extension of the transition period for the developing countries (WT/GC/W/209).
The implementation issues raised by developed countries are quite different from those described. The United States is eager to initiate the review of the implementation of the Agreement (article 71.1) as soon as the transitional period of article 65.2 is over . That country also expressed interest in addressing the in-built agenda, but seems reluctant to propose or support a revision of other aspects of the TRIPS Agreement.
The European Union has pointed out that the transitional periods, which developing countries can avail themselves of for implementing TRIPS, will soon expire, and that
"It should of course be kept in mind that the TRIPS acquis is a basis from which to seek further improvements in the protection of IPR. There should therefore be no question, in future negotiations, of lowering of standards or granting of further transitional periods" A similar stand has been taken by Japan, for which "first and foremost, every Member should ensure the full implementation of the TRIPS Agreement and effective operation of the domestic legislation...We should not discuss the TRIPS Agreement with a view to reducing the current level of protection of intellectual property rights. To the contrary, the TRIPS Agreement should be improved properly in line with new technological development and social needs”.
The implementation of "appropriate measures against counterfeiting" is a major concern for Japan
Geographical indications
Article 23.4 of the TRIPS Agreement obliged Members to undertake negotiations on the establishment of a multilateral system of notification and registration of geographical indications for wines.
Two proposals have been made on the subject. The European Communities proposed an international registration of geographical indications according to which registered indications would be automatically protected in the participating Members, subject to a procedure for dealing with oppositions from each Member who considers that a geographical indication is not eligible for protection in its territory. On the other hand, United States and Japan envisage the development of an international database of geographical indications to which Members would be expected to have reference in the operation of their national systems. Both approaches have support from some other Members.
The other area of work on geographical indications is the review of the application of the provisions in the Section on geographical Indications under Article 24.2. In this context and also in the context of the preparations for a new round, proposals have been made for the expansion of the product areas that must benefit from the higher level of protection presently only required under the TRIPS Agreement for wines and spirits to other agricultural and handicraft products, for example, rice, tea, beer, etc.. Several developing countries have indicated interest in a TRIPS-plus protection in the field of geographical indications. For instance, Egypt has proposed that the additional protection conferred for geographical indications for wines and spirits (Article 23.1) be extended to other products, particularly those of interest to developing countries.
The Indian delegation further elaborated on this issue. It argued that "it is an anomaly that the higher level of protection is available only for - wines and spirits. It is proposed that such higher level of protection should be available for goods other than wines and spirits also. This would be helpful for products of export interest like basmati rice, Darjeeling tea, alphonso mangoes, Kohlapuri slippers in the case of India. It is India's belief that there are other Members of the WTO who would be interested in higher level of protection to products of export interest to them like Bulgarian yoghurt, Czech Pilsen beer, many agricultural products of the European Union, Hungarian Szatmar plums and so on. There is a need to expedite work already initiated in the TRIPS Council in this regard, under Article 24, so that benefits arising out of the TRIPS Agreement in this area are spread out wider" Turkey and the Czech Republic have also joined the demand for an additional protection for specific foodstuffs and handicraft products and, particularly in the case of the latter "for beers which are particularly vulnerable to imitation, counterfeit and usurpation and whose protection of such indications against consumer deception is insufficient and trademark protection is not satisfactory due to its formal requirements such as registration and the use requirement”.
In the area of geographical indications, in sum, developing countries are pursuing a "TRIPS-plus" revision. If adopted and not subject to special and differential treatment, an extended additional protection may favour any country where the requirements for protection of such indications may be met by products other than wines and spirits.
The TRIPS Agreement extends protection beyond previous international levels. The Washington Treaty on integrated circuits, 28 but relatively few countries are parties to these Conventions. The TRIPS Agreement integrated circuits. In addition, in some cases it The TRIPS Agreement fails to protect informal knowledge systems. While the TRIPS Agreement includes existing measures to protect integrated circuits, it does not include existing measures for the protection of expressions of folklore such as the WIPO/UNESCO Special Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions.
The TRIPS Agreement changes the focus of IP protection from individuals to corporations. The TRIPS Agreement does not refer at any time to inventors throughout the text.
One of the primary avenues through which the TRIPS Agreement can affect the international protection of IPR is member countries use of the Agreement as a threat. Negotiated settlements between countries often precede, and sometimes prevent, formal WTO cases. These negotiations between complainant and defendant countries may be flavoured by the existence of the TRIPS Agreement. Both parties know that the TRIPS Agreement allows for punitive retaliatory measures against an offending member country, and defendant countries have to weigh the potential costs of trade retaliation in their decisions on IPR protection reform
Finally, though a concrete agreement is slightly partial to the developed countries and corporation, though implementation have several lacunas yet can be improved by considering various suggestions and shall require review time to time in lieu of the technological advancement and ever changing global market

BILOGRAPHY & WEBOLOGY http://en.wikipedia.org/wiki/Agreement_on_TradeRelated_Aspects_of_Intellectual_Property_Rights http://www.training-jpo.go.jp/en/uploads/text_vtr/pdf/TRIPs_Agreement.pdf http://home.cc.umanitoba.ca/~cardwell/research/TRIPS.pdf http://www.google.co.in/search?hl=en&site=imghp&tbm=isch&source=hp&biw=1241&bih=567&q=globe+images&oq=globe&gs_l=img.1.9.0l10.3351.5131.0.9826.5.5.0.0.0.0.242.999.0j4j1.5.0...0.0...1ac.1.7.img.lmGjZ2frla0#hl=en&site=imghp&tbm=isch&q=globe+wallpaper&revid=1022013910&sa=X&ei=vxhTUY6vOMH0kQXw7oCgAg&ved=0CHUQgxY&fp=1&biw=1241&bih=567&bav=on.2,or.r_qf.&cad=b&sei=G6tTUe6sFM7NrQfLzICwAw&imgrc=famjwdYpnAyVTM%3A%3BrTot-cUu7x-r8M%3Bhttp%253A%252F%252F1.bp.blogspot.com%252F_PUoIm_a8734%252FSZ7Z9jziS5I%252FAAAAAAAABdA%252FMdvjs_w-xes%252Fs400%252FAntique-Globe-wallp.png%3Bhttp%253A%252F%252Fthelonggoodbye.wordpress.com%252F2009%252F02%252F20%252Fantique-globe-wallpaper-jesus-and-the-recovery-act%252F%3B400%3B267 http://www.twnside.org.sg/title/foster.htm http://www.peteryu.com/correa.pdf http://www.iprcommission.org/papers/pdfs/study_papers/sp7_thorpe_study.pdf BOOKS REFERED

* GUIDE TO THE WTO &GATT- AUTAR KRISHEN KOUL * A COMMENTARY ON THE TRIPS AGREEMENT- CARLOS.M.CORREA * Globalizing Intellectual Property: The TRIPS Agreement - Duncan Matthews * Interpreting TRIPS - Hiroko Yamane * The TRIPS Agreement, Drafting History and Analysis – DANIEL GERVAIS

Thank you

Trips* Industrial designs* geographical indications* INTEGRATED circuits* Undisclosed information

ADV.MANISHA PANDYA- LLM SEM II-ROLL NO.17 BUSINESS LAW GROUP SUBMITTED TO PROF.TIWARI