top of page

Recent Posts

Quick Links




What is TRIPS?

The Agreement on Trade related Aspects of Intellectual Property Rights of the WTO is commonly known as the TRIPS Agreement or simply TRIPS. TRIPS is one of the main agreements comprising the World Trade Organisation (WTO) Agreement. This Agreement was negotiated as part of the eighth round of multilateral trade negotiations in the period 1986-94 under General Agreement on Tariffs and Trade (GATT) commonly referred to as the Uruguay Round extending from 1986 to 1994. It appears as Annex 1 C of the Marrakesh Agreement which is the name for the main WTO Agreement. The Uruguay Round introduced intellectual property rights into the multilateral trading system for the first time through a set of comprehensive disciplines. The TRIPS Agreement is part of the “single undertaking” resulting from the Uruguay Round negotiations. This implies that the TRIPS Agreement applies to all WTO members, mandatorily. It also means that the provisions of the agreement are subject to WTO dispute settlement mechanism which is contained in the Dispute Settlement Understanding (the “Understanding on Rules and Procedures Governing the Settlement of Disputes”). The TRIPS Agreement is one of the most important agreements of the WTO.

Why was TRIPS included in WTO?

The precursor to the WTO was the General Agreement on Tariffs and Trade (GATT) which sought to address issues related to international trade in goods. The operation of the GATT over the years resulted in lowering of tariffs in general in international trade. As a result, increasingly, other domestic policies of nations came into focus of the trading nations. The developed countries, including the United States started facing increasing competition in manufactured exports from Newly Industrializing Countries (NICs) of Asia. For intellectual property issues in general, the negotiators were required to “clarify GATT provisions and elaborate as appropriate new rules and disciplines” in order to reduce distortions and impediments to international trade. As technology became more important in goods and commodities, having higher proportion of invention and design (intellectual creativity) in their value, IPR became important in international trade. As a result, in the Uruguay Round negotiations, the intellectual property rights dominated the discussions.

Q.3. What are Intellectual property rights (IPRs) and how do they grant protection to the owner of an IPR?

Intellectual property rights or IPRs are rights given to people over the creations of their minds. These rights are given by society through the State as an incentive to produce and disseminate ideas and expressions that will benefit society as a whole. Unlike Fundamental Rights of citizens which are guaranteed by the Constitution of a country, IPRs are statutory rights enacted by the lawmaking authority in a country. Conventionally, many forms of IPRs are recognised. They are traditionally classified into two main categories:

  • Copyright and related rights: i.e., rights granted to authors of literary and artistic works, and the rights of performers, producers of phonograms and broadcasting organizations. The main purpose of protection of copyright and related rights is to encourage and reward creative work. The distinguishing feature of this category of rights is that they protect onlythe tangible expression of an idea and not the idea itself. Further, these rights generally come into existence the moment a work is created and need not be registered with any central authority.

  • Industrial property: This category includes: (1) the protection of distinctive signs such as trademarks and geographical indications, and (2) industrial property protected primarily to stimulate innovation, design and the creation of technology which are protected through laws on protection of inventions (patents), industrial designs and trade secrets.

IPRs grant protection to the owner as they give the creator an exclusive right over the use of his/her intellectual creations generally for a limited period of time. However, in the case of certain categories of IPRs, the rights e.g. trade secrets and geographical indications can exist indefinitely so long as the right holder takes steps to protect his right. In the case of certain other time limited IPRs, it is possible to renew the rights periodically either for an indefinitely long period as in the case of trademarks or for a pre-specified maximum limit as in the case of industrial designs.

Which IPRs are covered under TRIPS?

The IPRs covered by the TRIPS Agreement are:

  • Copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations)

  • Trademarks, including service marks

  • Geographical indications including appellations of origin

  • Industrial designs

  • Patents including the protection of new varieties of plants

  • Layout-designs (topographies) of integrated circuits

  • Undisclosed information, including trade secrets and test data

What is the link between TRIPS, WTO and WIPO?

Intellectual Property Rights (IPRs) at a multilateral level have their genesis in the Paris Convention for the Protection of Industrial Property in 1883 which protected industrial property i.e. Patents and trademarks and the Berne Convention for the Protection of Literary and Artistic Works in 1886 for copyrights and related rights. World Intellectual Property Organization (WIPO) which began its work in 1967 taking over from the Bureau for the Protection of Intellectual Property that had been working since 1893, is the international agency under the United Nations that administers the work of these conventions. The WIPO administers many other international conventions on IPRs also. While the IPR Conventions and treaties create the international standards in protection of IPRs which are to be followed by the member countries, substantive trade related disciplines on IPRs under these international conventions have been adopted by reference into the WTO through the TRIPS Agreement. This means that the Agreement provides rules for trade and investment in ideas and creativity by incorporating standards laid down in certain exact provisions of the major IPR conventions. The WTO provides that “intellectual property” should be protected when trade is involved. Thus, through the TRIPS, the WTO makes it mandatory for all its member countries to follow basic minimum standards of IPR provided for under TRIPS and bring about a degree of harmonization of domestic laws in this field.

What is the importance of the Doha Declaration on Public Health, why was this necessary?

The framework of stringent intellectual property rights established by the TRIPS Agreement enables pharmaceutical manufacturers to charge prices above marginal cost of production. This affects the ability of governments to monitor and protect public health because of their obligations to protect IPRs of the manufacturers. This means that Governments may find their capacity to ensure affordable access to medications restricted.

In 2001, in response to concerns of developing countries regarding limited or no access to medicines at affordable prices, the WTO members agreed to issue the Doha Declaration to clarify the TRIPS Agreement in the context of Public Health. The declaration states that the TRIPS Agreement would not prevent members from taking steps to protect public health and makes clear that each member has the right to create certain exceptions to its IPR laws to enable it to grant compulsory licenses for manufacture of essential goods such as life-saving drugs even if the consent of the holder of the IPR is not forthcoming. Each member would be required to determine the grounds on which such compulsory licenses can be granted and shall have the right to determine what constitutes a national emergency. Based on a decision taken by the WTO in 2003, Member states may also grant a compulsory license for limited export and import of medicines where the receiving country lacks manufacturing capacity.

What are the challenges of the Doha Declaration?

Even though the Doha Declaration on TRIPS Agreement and Public Health [hereinafter Doha Declaration] and the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health [hereinafter 2003 Decision] recognize the “gravity” of public health problems and reflect concerns regarding implications of the TRIPS Agreement, these documents left a number of technical and legal problems unresolved. For example, since the term ‘epidemics’ in the Doha Declaration has been left undefined, and even though the Doha Declaration acknowledges each Members’ right to determine what constitutes a national emergency or a circumstance of extreme emergency, governments may still face challenges from pharmaceutical manufacturers on whether they can issue compulsory licenses over certain medications. This means that medications for chronic diseases such as HIV/AIDS, tuberculosis, malaria and other epidemics may be interpreted as a restriction on this right since the existence of a chronic disease may not qualify as a “national emergency”. There are also concerns that the administrative burden associated with the procedural arrangements required by the Declaration for notifying the WTO of the mechanism to provide drugs and medicines to countries not having local manufacturing capacity under the 2003 Decision will be costly and cumbersome particularly for developing countries.

What are the future issues under consideration relating to TRIPS?

The effectiveness of the 2003 “waiver” in the 2001 Doha Declaration on TRIPS and Public Health. The waiver in Doha Declaration removes a requirement that generics produced under compulsory license should be mainly for the domestic market. This would hinder their export to countries that cannot make the medicines. The TRIPS Agreement has been amended in 2005 to include these provisions in it, but the amendment has not come into force as most Members have not ratified it so far. In addition, the mechanism established in the 2003 waiver for providing affordable medicines to poor countries does not seem to have worked as only one case of its use exists (where Rwanda obtained medicines from Canada), and that too has not been very successful. WTO members are reviewing this provision.

  • The TRIPS Agreement has a built in review of the provisions relating to patenting of life forms. The current provision obliges members not to exclude from their patent regime microorganisms and nonbiological and microbiological processes. It also obliges Members to protect plant varieties either through patents or through a sui generis system (of its own kind) or a combination thereof. This review has not been concluded even though it started in 1999.

  • Protection of the innovations of indigenous and local farming communities and the continuation of the traditional farming practices including the right to save, exchange seeds, and sell their harvest • Protection of the rights of indigenous communities and prevent any private monopolistic intellectual property claims over their traditional knowledge.

  • Grant of the same level of protection of geographical indications in other products as is granted to wines and spirits

Indian obligations under TRIPS

What is the impact of TRIPS on relevant Indian legislation?

To meet international obligations under the TRIPS, various existing domestic IPR laws have been amended from time to time. For example, in the area of patents, the Indian Patent Act 1970 was amended in order to make it conform to TRIPS. The first amendment to the Patent Act 1970 was effected through the Patents (Amendment) Act, 1999 that was brought into force retrospectively from 1st January, 1995. The amended Act provided for filing of applications for product patents in the areas of drugs, pharmaceuticals and agro chemicals even though such patents were not allowed. However, provision was made that such applications were to be examined only after 31-12-2004. This was necessitated in view of the transitional arrangements allowed under the TRIPS Agreement. Under the transitional arrangements, a grace period was allowed to developing country members to make their laws TRIPS-compatible provided they met certain conditions. One such st condition was that to avail of 10 year grace period (till 1 January 2005) under TRIPS, a ‘mail-box’ of applications would have to be created in which all product-patent application would be placed for subsequent examination on merits from January 2005. In the intervening period, the applicants were to be allowed Exclusive Marketing Rights (EMR) to sell or distribute these products in India, subject to fulfilment of certain conditions. The second amendment to the 1970 Act was made through the Patents (Amendment) Act, 2002. This Act came into force on 20 May 2003 with the introduction of new Patent Rules, 2003 by replacing the earlier Patents Rules, 1972. With these amendments, India met all its obligations relating to patent protection that it was required to meet by the year 2000 under the TRIPS Agreement. It also brought the Patents Act in conformity with the requirements of the Patent Cooperation Treaty of WIPO as modified until 2001. The third amendment to the Patents Act 1970 was introduced through the Patents (Amendment) Ordinance, 2004 with effect from 1st January, 2005. This Ordinance was later replaced by the Patents (Amendment) Act 2005 (Act 15 of 2005) on 4th April, 2005 which was brought into force from 1-1-2005. This amendment obliged India to grant product patents to drugs and medicines and food and chemical products. This final amendment brought India in full compliance with its TRIPS obligations.

Similarly, in the case of trademarks, the governing law in India now is Trade Marks Act, 1999 brought into force with effect from September 15, 2003 to bring it in compliance with TRIPS by repealing the Trade and Merchandise Marks Act, 1958.

The Copyright Act, 1957 today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and TRIPS. Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the provisions of this Convention. Two new treaties, collectively termed as Internet Treaties, were negotiated in 1996 under the auspices of the World Intellectual Property Organization (WIPO). These treaties are the ‘WIPO Copyrights Treaty (WCT)’ and the ‘WIPO Performances and Phonograms Treaty (WPPT)’. These treaties were negotiated essentially to provide for protection of the rights of copyright holders, performers and producers of phonograms in the Internet and digital era. India is not a member of these treaties. However, the current set of amendments placed by the Government before the Parliament seeks to bring the law in conformity with these treaties as well.

What are the criteria for grant of a patent?

Patents provide property rights to inventions. An ‘invention’ may be defined as a novel idea which permits in practice the solution of a specific problem in a field of technology. Patents are available for any invention, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Thus, the TRIPS Agreement stipulates that countries shall grant patents for inventions in all fields of technology and for both

  • Products, and

  • Processes, including those used in manufacturing products.

Is there any special or unique provision on Patents in the Indian law?

The Patent Act has a set of exceptions stated in Section 3 by which certain things cannot be protected by the law. One very unique provision is embodied in Section 3, clause (d). This provision prevents patenting of minor improvements in chemical and pharmaceutical entities unless the invention results in the enhancement of known efficacy of that substance. This prevents patenting of mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus. This provision is a safeguard for public health purposes and sets a higher threshold which has been interpreted as therapeutic efficacy for the grant of a patent on pharmaceuticals.

How is a patent granted? Which office deals with patents?

A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the European Patent Office and the African Regional Industrial Property Organization. Under such regional systems, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders.

The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. In India, the Controller General of Patents, Designs and Trademarks is responsible for the administration of the Patents Act, 1970 through the Patent Offices located at Kolkata, Mumbai, Delhi and Chennai.


What is a trademark, how is trademark important and what is the period of protection provided by a trademark?

A trademark is a sign or mark that is used to distinguish the goods or services of one enterprise from those of another enterprise. It can be any distinctive word, letter, numeral, drawing, picture, shape, colour, sound, smell, logotypes, or any combination of these that may be used for distinguishing goods and services, of any given business. A trademark is used extensively by an enterprise to reach customers by enabling customers to identify and locate the product. A trademark is issued by a national office and is granted for a period of 10 years and may be renewed indefinitely.

What is the criteria for grant of a trademark?