Intellectual Property Rights Though the Lens of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Concluded in Marrakesh

By Anechitoae, Constantin | Contemporary Readings in Law and Social Justice, July 1, 2012 | Go to article overview

Intellectual Property Rights Though the Lens of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Concluded in Marrakesh


Anechitoae, Constantin, Contemporary Readings in Law and Social Justice


ABSTRACT. Creations protected by intellectual property rights within the "industrial property." as the other creations, are protected under the comprehensive name of "intellectual property," as products of human creative activity, the result of thought, knowledge, and rational activity, the result of the human capacity to devise and grasp concepts, to work with abstract concepts.

Keywords: property rights, intellectual property, industrial property

1. Introduction

During its existence, the individual, with an innovative nature, sought new solutions to make life easier, to obtain and prepare food easier, to manufacture and protect the assets acquired. Thus, the spirit of private property has appeared.1 From protecting assets to protecting human mind creations, there was a single step favored by the creation of a suitable legislation in this field.

2. Intellectual property rights

Intellectual property rights, provided for in international legal regulations, are also mentioned in the Agreement on Trade-Related Aspects of Intellectual Property Rights, signed in Marrakesh, on April 15th, 1994, known as TRIPS, where, in article 1, section 2, it provides that, for the purposes of this Agreement, the term "intellectual property" refers to all the categories of intellectual property covered by sections 1-7 of Part ? (Rules relating to the existence, scope and exercise of intellectual property rights) of the Agreement, namely:

1. Section 1. Copyright and neighboring rights;

2. Section 2. Brand or trademarks;

3. Section 3. Geographical indications;

4. Section 4. Designs and industrial models;

5. Section 5. Patents;

6. Section 6. Configuration schemes, (topographies) of integrated circuits;

7. Section 7. Protection of undisclosed information.

Unlike the "intellectual property," where both formal and substance creations are protected, in "industrial property" there are protected those intellectual formal creations that are applicable in the industry and that are designated under the name of "utilitarian creations". To these creations, the customary law (the Paris Convention of 20th March 1883 for protection of industrial property and the Stockholm Convention establishing the World Intellectual Property Organization) added the trademarks, the geographical indications and the trade designations and the protection against unfair competition, when specifying the object of protection, and, by the TRIPS Agreement, the object of protection was completed by adding the protection of undisclosed information.2

The regime of "distinctive signs" is different from actual intellectual creations, as noted above, and the "action for unfair competition", as "infringement proceedings," does not represent intellectual property rights, but means for defending these rights.3 As an institution of law, the unfair competition has multidisciplinary virtues, with strong links with civil and criminal law (through their sanctions), with administrative law (because the application of rules is related to administrative bodies), with the commercial law, in general, and with that of companies, in particular (the competition rules constitute constraints in pursuit of economic activities), with consumer law (which is required to protect it), but also with industrial property.

3. Main issues concerning intellectual property rights related to trade (TRIPS)

The Agreement is built on the scaffolding of international conventions on intellectual property and incorporates most of their provisions4. It also provides the possibility for member States to ensure a greater protection than the one required by TRIPS (under other international conventions, as long as they are not contrary to the provisions of TRIPS).

The most important provisions of the Agreement can be grouped into the following five groups:

- Basic principles and general obligations;

- Minimum standards of protection, including protection and control during anti-competitive practices in contractual dismissals;

- Practices that restrict trade;

- Enforcement of intellectual property (decisions of courts, actions of customs authorities etc. …

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