The General Exception Clauses Of The Trips Agreement

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Article 40 of the TRIPS Agreement provides that certain practices or conditions relating to intellectual property rights that restrict competition may have negative effects on trade and impede the transfer and dissemination of technology (paragraph 1). In accordance with the other provisions of the Agreement, Member States may take appropriate measures to prevent or control abusive and anti-competitive IPR licensing practices (paragraph 2). The Agreement provides for a mechanism where by which a country wishing to combat practices in which companies of another Member State participates shall enter into consultations with that other Member State and provide non-confidential information publicly available and relevant to the matter in question and other information at its disposal, subject to national law and the conclusion of satisfactory agreements on compliance with its confidentiality by the requirement. (paragraph 3). Similarly, a country whose companies are subject to such measures in another Member State may enter into consultations with that Member (paragraph 4). Article 24 contains a number of exceptions to the protection of geographical indications. These derogations are of particular importance for the additional protection of geographical indications for wines and spirits. For example, Members are not required to protect a geographical indication if it has become a generic term to describe the product concerned (paragraph 6). Measures implementing these provisions shall not affect earlier trade mark rights acquired in good faith (paragraph 5). In certain circumstances, the continued use of a geographical indication for wines or spirits may be permitted to an extent and a species as is currently the case (paragraph 4). Members making use of these derogations must be prepared to enter into negotiations with a view to their subsequent application to individual geographical indications (paragraph 1). Derogations may not be used to undermine the protection of geographical indications that pre-existed before the entry into force of the TRIPS Agreement (paragraph 3). The TRIPS Council continuously reviews the application of the provisions on the protection of geographical indications (paragraph 2).

The general objectives of the TRIPS Agreement are set out in the preamble to the Agreement, which reflects the fundamental objectives of the Uruguay Round negotiations, set in the ad hoc region by the Punta del Este Declaration of 1986 and the mid-term review of 1988/89. These objectives include reducing distortions and barriers to international trade, promoting effective and adequate protection of intellectual property rights, and ensuring that measures and procedures for the enforcement of intellectual property rights do not themselves become barriers to legitimate trade. These objectives should be read in conjunction with Article 7 (Objectives), which states that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation, the transfer and dissemination of technologies, to the mutual benefit of producers and users of technological knowledge and in a manner that promotes social and economic well-being – and to the balance of rights and obligations. Article 8, entitled `Principles`, recognises the right of Members to take measures on grounds of public health and other grounds of public interest and to prevent the abuse of intellectual property rights, provided that such measures are consistent with the provisions of the TRIPS Agreement. . . .

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