International and Regional Protection

1. The Paris Convention

The Paris Convention is used in connection with two separate treaties: (1) international protection of industrial property, and (2) international copyright protection (the Universal Copyright Convention). The Paris Convention for the protection of industrial property was concluded in 1883 and has gone through various revisions. It applies to industrial property in the widest sense, including patents, trademarks, trade names, and so on. The treaty sets forth three fundamental rules:

1. National treatment: The principle of national treatment provides that nationals of any signatory nation shall enjoy in all other countries of the Union the advantages that each nation’s laws grant to its own nationals.
2. Right of priority: The right of priority enables any resident or national of a member coun­try to apply for protection in any other member state of the convention within a certain period of time (twelve months for patents and six months for trademarks and industrial designs) after filing the first application in one of the member states to the treaty. These later applications will then be regarded as if they had been filed on the same day as the first application. A major advantage of this is that applicants wishing protection in multiple countries need not file all applications at the same time but have six to twelve months from the first application to decide in which countries to apply for protection.
3. Minimum standards: The convention lays down minimum standards common to all member countries.

2. The Universal Copyright Convention

The convention (1952, revised in 1971) establishes the national treatment standard and min­imum rules common to all member countries. It also allows countries to set formalities or conditions for the acquisition or enjoyment of copyright in respect to works first published in its country or works of its nationals wherever published.

The Paris Convention is administered by the World Intellectual Property Organization (WIPO). WIPO’s mission is to promote the protection of intellectual property throughout the world. WIPO membership includes more than 130 countries.

3. The Patent Cooperation Treaty

Under the terms of the Patent Cooperation Treaty (PCT), a single application suffices to launch a worldwide search for novelty in all member countries; filing an application in one of the designated offices eliminates the need to file applications in the patent offices of all other member states. The application with the search report will be forwarded to the countries where the applicant seeks patent protection. Although such a system eliminates duplication of filing and patent examination in each patent office of a member country, each country retains full jurisdiction to grant or refuse a patent in accordance with its own domestic legislation. The PCT has been signed by 133 countries and regional patent systems such as the European Patent Office (EPO) and the African Regional Industrial Property Organization (ARIPO).

4. Trade-Related Aspects of IPRs (TRIPs)

The developed countries criticize the intellectual property conventions administered by WIPO because its minimum standards are considered insufficient and it offers no provisions for dispute settlement. Member states retain broad discretion in granting intellectual prop­erty rights. Existing multilateral treaties fail to protect the most basic rights: Certain fields of patentable technologies such as pharmaceuticals, biotechnology, agricultural chemicals, and copyrightable documents such as education materials have been excluded from protection in many countries. Some countries limit patentability to the process (not the product), and /or limit the duration of patent protection.

They contend that the deficiencies in the protection of intellectual property rights distort international trade and reduce the value of concessions negotiated in various rounds of trade negotiations. The Intellectual Property Committee (IPC), a cross-industry organization of large multinational corporations, notes that:

Inadequate international protection of intellectual property has become a major cause of distortions in the international trading system—and that it is both ap­propriate and necessary for intellectual property issues to be dealt with under international trade rules. (Gad, 2003, p. 676)

Subsequent negotiations led to the adoption of the Uruguay Round Agreement on Trade- Related Aspects of Intellectual Property (TRIPs) in 1994. The agreement established mul­tilateral obligations for the protection and enforcement of the IPRs and provided a dispute settlement mechanism under the World Trade Organization (WTO).

The TRIPs agreement covers almost all forms of intellectual property including patents, trade and service marks, industrial designs, trade secrets, and layout designs of integrated circuits.

The three fundamental features of the agreement are:

1. Standards: The agreement sets out minimum standards of protection to be provided by each member country. It provides broader protections for intellectual property rights by granting the most-favored-nation (MFN) treatment for all signatories. It also re­quires members to comply with existing agreements such as the Paris Convention and the Berne Convention for the protection literary and artistic works. It further supple­ments additional obligations on matters where the preexisting conventions are silent or inadequate.
2. Enforcement: The TRIPs agreement lays down domestic procedures and remedies for the enforcement of IPRs.
3. Dispute settlement: The agreement makes disputes between WTO members subject to the WTO’s dispute settlement procedures. It also authorizes trade sanctions against noncom­pliant nations.

5. Regional Conventions

The major regional agreement in the area of IPRs is the European Patent Convention (1973), under which a single application may result in the grant of a European patent valid in all member countries. It is a centralized patent-granting system administered by the European

Patent Office (EPO) in Munich, Germany, on behalf of member countries. A similar regional organization is the African Regional Intellectual Property Organization (ARIPO), located in Harare, Zimbabwe. ARIPO was established in 1976 to grant regional patents valid in all designated member countries.

Source: Seyoum Belay (2014), Export-import theory, practices, and procedures, Routledge; 3rd edition.