A. General the TRIPS Agreement Is Divided Into Seven Parts. The

Introduction II The Concept of the TRIPS Agreement*

Bibliography See also General Bibliography. J. Busche, Marktmissbrauch durch Ausübung von Immaterial- güterrechten?, in: E. Keller (ed.), Festschrift für Tilmann, 2003, 645–656; J. Phillips, Protecting Values in Industrial Designs, in: C. M. Correa & A. A. Yusuf (eds), Intellectual Property and International Trade: The TRIPs Agreement, 1999, 179–187; D. Kaboth, Das Schlichtungs- und Schiedsgerichtsverfahren der Weltorganisation für geistiges Eigentum (WIPO), 2000; S. Rinnert, Die Erschöpfung von Markenrechten und das TRIPs-Abkommen, 2000; I. A. Frost, Schiedsgerichtsbarkeit im Bereich des geistigen Eigentums, 2001; H. Sendrowski, Mitt. 97 (2006), 69–70; H. Schack, Urheber- und Urhebervertragsrecht, 2007.

Table of Contents A. General 1 B. Principles of Protection 7 C. The Standards in Detail 12 I. Copyright and Related Rights 12 II. Trademarks 19 III. Geographical Indications 27 IV. Industrial Designs and Models 32 V. Patents 36 VI. Layout-Designs (Topographies) of Integrated Circuits 46 VII. Protection of Undisclosed Information 48 VIII. Control of Anti-Competitive Practices in Contractual Licences 49 D. Enforcement of Intellectual Property Rights 50 E. Dispute Settlement 54

A. General

1 The TRIPS Agreement is divided into seven parts. The introductory part (Arts 1–8) contains general provisions and basic principles. It thus forms the general part of the TRIPS Agreement. It is followed by the substantive provisions governing intellectual property (Part II, Arts 9–40). These, in turn, are followed by comprehensive rules regarding the enforcement of rights (Part III, Arts 41–61) which therefore, like the substantive provisions, constitute a central object of the TRIPS Agreement. The fourth part of the Agreement also holds a procedural aspect (Art. 62), which regulates the acquisition and maintenance of intellectual property rights, as does the ﬁ fth part regarding dispute prevention and settlement (Arts 63, 64). The Agreement concludes with transitional rules (Part IV, Arts 65–67) and institutional arrangements (Part VII, Arts 68–73). 2 Among the international agreements regarding the protection of intellectual property the TRIPS Agreement assumes a special role. This is not only due to the fact that it is a WTO agreement, but also to the background of the broadly formulated subject matter. In this respect, only the Paris Convention is at all comparable to the TRIPS Agreement, while other

* Translated by Roslyn Fuller, doctorial candidate at the University of Dublin.

BUSCHE introduction ii 13 international agreements in the area of intellectual property apply only to individual intellectual property rights, for example, the Berne Convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) and the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty) which were concluded under the auspices of the World Intellectual Property Organization (WIPO). To some extent the TRIPS Agreement swallows the treaties concluded 3 under the auspices of WIPO, the so-called convention law, without, admittedly, calling the validity of these treaties into question or invalidating any of their individual regulations.1 Such effect must already fail on the ground that the Members of TRIPS are not identical to those of the WIPO conventions. Furthermore, the TRIPS Agreement is intended to facilitate the participation of precisely those States which, for whatever reason, have not acceded to the WIPO conventions, in the process of harmonizing intellectual property rights. This occurs because of references to the corresponding WIPO conventions. TRIPS utilizes this regulatory technique with regard to the Berne Convention (cf. Art. 9.1) and the Paris Convention (cf. Art. 2.1). The regulatory approach of the TRIPS Agreement can therefore be accurately described as a Paris Plus or Berne Plus approach.2 In this context the provision of Art. 1.3, sentence 2, which creates the fi ction that all WTO Members are also signatories to the conventions referred to, attains special signifi cance. Together with the incorporation of WIPO law, the provision ensures that securities provided by the TRIPS Agreement are simultaneously applicable also to the nationals of WTO Members, i.e. those natural and legal persons who benefi t from the WIPO treaties as right holders. It should, however, be noted that the harmonization of intellectual prop- 4 erty rights is not the actual (exclusive) regulatory purpose of the TRIPS Agreement. Achieving a certain standard of protection may rather be understood as promoting world trade as such. To this extent, the TRIPS Agreement corresponds with the wish for the harmonization of intellectual property rights in the European Union, which is also driven by the idea of free trade between the Member States. It is therefore not surprising that TRIPS and the rules of Community law cross-fertilize each other in many regards. This is the case, for example, in the area of trademark law: The regulations concerning trademarks contained in Part II Section 2 of the TRIPS Agreement (Arts 15 to 21) are largely modelled on the provisions of the Trademark Law Directive.

1 Stoll & Schorkopf, Max Planck CWTL, Vol. 1, para. 620. 2 Rinnert, 150; cf. on the Paris Plus approach Kur, in: Beier & Schricker (eds), 93, 96; Fezer, para. 29; for details of the Berne Plus approach, see Schack, para. 882.

BUSCHE