Trips Agreement Trademark

The first registration and any renewal of a trademark registration are applicable for a period of no less than seven years. Registration of a trademark may be extended indefinitely (Article 18). Unlike other IP agreements, TRIPS have an effective enforcement mechanism. States can be disciplined by the WTO dispute settlement mechanism. The registration of a trademark using a geographical indication in a manner that misleads the public about the true place of origin must be refused or cancelled automatically if the legislation authorizes it or at the request of an interested party (Article 22.3). Section 24 provides for a number of exceptions to the protection of geographical indications. These exemptions are particularly important for the complementary protection of the geographical indications of wines and spirits. For example, members are not required to protect a geographic indication when it has become a generic term for the product in question (point 6). Measures taken to implement these provisions must not infringe previous good faith trademark rights (paragraph 5). In certain circumstances, the use of a geographical indication for wines or spirits may be permitted of a size and species as is currently the case (paragraph 4). Members who use these exemptions must be willing to enter into negotiations for their subsequent application to the various geographical indications (paragraph 1). Exemptions cannot be used to reduce the protection of geographic indications that existed prior to the TRIPS AGREEMENT (point 3).

The TRIPS Council is reviewing the application of the provisions on the protection of geographical indications (paragraph 2). This means that, to the extent that they are implemented by use restrictions instead of registration and the rights of tobacco companies to prevent competitors from using their trademarks are not compromised, WHO FCTC`s enforcement actions are unlikely to fall within the scope of TRIPS protection for trademark registration or trademark rights. Another argument was made with respect to Article 20 of the TRIPS agreement, which states that the use of a trademark in commercial transactions “is not unjustified by specific requirements such as … in a particular form or use, in a manner detrimental to their ability to distinguish the goods or services of a company from those of other enterprises.” The importance of this provision was an important element of the WTO dispute between Australia – Plain Packaging (panel report; Report of the appellate body).

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