IP protection is the right itself to exclusivity. It’s distinct from enforcement of that protection, which includes civil/administrative procedures and criminal penalties.

Different national intellectual property legislation coexists within a common market, conferring privileges that restrict competition within the single market. The protection of intellectual property rights in a free trade market is essential to allow the free circulation of goods among member nations. In order to create a free trade market, member states must harmonize different intellectual property regimes and base the integrated system upon common rules of protection and enforcement. This is a difficult process due to divergences between national intellectual property regimes within a free trade agreement's member countries.

The focus of this article is on the convergence of national intellectual property norms into an international framework for the protection of intellectual property rights. Part I of this article examines the old system of international protection of intellectual property and its paradigms: the Paris Convention, the Berne Convention, and the World Intellectual Property Organization(WIPO). Part II studies the modern system of international protection of intellectual property rights consolidated in the World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS), the North American Free Trade Agreement regional trading block (NAFTA), and the emerging regional trading block of MERCOSUR, as well as the ongoing process of harmonization of intellectual property norms within its member countries: Argentina, Brazil, Paraguay, and Uruguay.

PART I:

ORIGINAL SYSTEM OF INTERNATIONAL PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

A.

Key Features of Major Forms of Intellectual Property

The major fields of intellectual property generally are classified as patents, copyrights, layout designs of integrated circuits, trademarks, service marks, geographical indications, trade secrets, and industrial designs. They share common themes and general principles found throughout intellectual property law.

Each form of intellectual property has a set of norms to determine what subject matter is protected, the procedures for achieving protection, the duration of protection, and legal remedies for infringement of the intellectual property right. The fundamental feature of these various forms of intellectual property is the exclusive right to exclude others from certain activities. This results from the property rights conferred to the intellectual property owners in symbols, abstract concepts, information, or creative expressions created by them. They are thus granted property rights to the products of their minds - intellectual capital.

Although the definitions of intellectual property rights in various countries differ regarding several important aspects, generally accepted definitions of the various forms of intellectual property rights based on common characteristics exist. Modern international intellectual property treaties such as the North American Free Trade Agreement 3 and the Trade Related Aspects of Intellectual Property Rights (TRIPS) 4 of GATT/WTO succeeded in defining the different concepts of intellectual property rights. Patents A "Letter Patent" is a grant by the government of a right to exclude others from making, using, offering for sale, selling the invention throughout the United States, or importing the invention into the United States for a period of time. 5 The fundamental criteria for patent protection are novelty, non-obviousness, and utility. 6 Under United States law, a patent provides protection for "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement." 7 One may patent nearly "anything under the sun that is made by man," provided it is useful. 8 There are three basic types of patents: utility patents, protecting utilitarian inventions; 9 design patents, protecting a new, original, and ornamental design for an article of manufacture; 10 and plant patents, protecting new plant varieties asexually reproduced. 11 Processes consisting merely of mental steps, however, such as a mathematical calculation, or processes amounting to only a method of doing business are not protected by patents. Patents provide the strongest protection of any form of intellectual property. The patent term is a short fixed term, 12 excluding all others from practicing his or her invention, 13 except when the patent holder grants a license to make, use, or sell the object of a patent for a limited period of time or in a limited territory. Under United States law, patent owners have the right to pursue a civil action against infringers. 14 Patent infringement consists of making, using, offering to sell, or selling a patent product within the United States, 15 or actively inducing another to do so. 16 In some cases where a patented process is performed abroad, and the product is imported into the United States or the imported product itself is covered by a United States patent, the patent owner can seek an exclusion order from the International Trade Commission. 17 Copyrights Copyright is a form of protection provided by the laws of numerous countries to authors of original works. The object of copyright protection is the form in which such works are expressed, which may be words, symbols, music, pictures, three-dimensional objects, or combinations thereof, such as copyrights, expressions with literary, artistic, or pictorial value. Copyright-related rights protect the work of performers, phonogram producers, and broadcasters. 18 Copyrights, however, do not protect any ideas, principles, themes, procedures, methods, systems, processes, or concepts. Only the form of the expression is protected. 19 The subject matter of copyright protection under United States law is "original works of authorship fixed in any tangible medium of expression." 20 Categories of protected works are broad, including books, magazine articles, speeches, music, motion pictures, other audiovisual works, computer programs, computer databases, architectural and technical drawings, sculptures, paintings, and poetry. Under United States law, the copyright automatically is secured at the work's creation, defined as the first time the work is fixed in a tangible medium of expression. 21 The only requirements for copyright protection in the United States are originality and fixation in a tangible medium of expression. 22 The copyright owner, under United States law, has the exclusive right to do and to authorize others to do the following: . to reproduce the copyrighted work in copies or phono records; . to prepare derivative works based upon the copyrighted work; . to distribute copies or phono records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; and . to perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or audiovisual work. 23 A major limitation to the copyright owner under United States law is the "doctrine of fair use," 24 under which a copyrighted work is not considered an infringement if it is done for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Copyrights, generally, have longer terms of protection. Copyrights of corporate or anonymous works last 100 years after their creation or seventy-five years after their first publication, whichever expires first. 25 Works by named authors are protected until fifty years after the death of the last surviving author. 26 United States copyright law provides civil and criminal remedies for copyright infringement. In order to obtain the legal remedies afforded under United States copyright law, however, the copyright owner must register his or her work with the United States Copyright Office. 27 Copyrighted works may be protected without litigation by license agreements or used by the copyright owner not only as a method to turn copyright to profit, but also to exercise control over uses made by licensees. 28 The copyright owner may license any rights to different licensees, on an exclusive or nonexclusive basis, or transfer exclusive copyright rights by assignment, mortgage, exclusive license, other type of conveyance, or operation of law. 29 Layout Designs of Integrated Circuits Semiconductor chips are integrated circuits containing transistors, resistors, capacitors, and their interconnections, fabricated in a tiny, single piece of semiconductor material. 30 The protection for layout designs (or topography) of integrated circuits is a sui generis form of protection, limited to the design as such, that allows the owner of the design to prevent the unauthorized reproduction and distribution of such designs. 31 Under United States law, the Chip Act provides protection to semiconductor chip designs. 32 "Mask works" are the subject matters of such intellectual property protection. Such terminology refers to the masks bearing the design of the circuitry used in the production of the chip. The information is protected regardless of how it is recorded, whether in the chip, on paper, or in a database. The Chip Act, however, does not protect ideas, principles, or processes embodied in the chip design. These can be protected, however, by patents or trade secrets. Under United States law, the owner of a mask work has the exclusive right to reproduce it in chips or other forms and to import and distribute semiconductor chips embodying the mask work, in products or otherwise. 33 The Chip Act does not protect commonplace designs, which are familiar in the semiconductor industry, or unoriginal variations of such designs. 34 The originality requirement for semiconductor chip protection is more stringent than for copyrights. The Chip Act provides a ten-year term of protection commencing when the mark is registered with the United States Copyright Office or is first commercially exploited anywhere in the world. 35 A prerequisite to litigation for infringement of a semiconductor chip design, as well as for enjoyment of the full ten-year protection, is registration with the United States Copyright Office. 36 Trademarks A trademark is a sign which serves to indicate the source of goods or services, as well as their producers. The sign may consist of one or more distinctive words, letters, numbers, drawings or pictures, emblems, monograms or signatures, colors or combination of colors, or a combination of any of these. 37 The main functions of trademarks under United States law are to protect consumers from confusion as to the source of goods or services purchased and to protect the trademark owner's goodwill and reputation attached to the mark. The subject matter of trademarks includes commercial symbols used to identify products, services, or their producers in the market place, but protection is not limited to verbal symbols. The trademark laws may protect other designs and distinctive features of clothing, sounds, and even fragrances, as well as the design and packaging of products and services. 38 A trademark is defined under United States law as: Any word, name, symbol or device, or any combination thereof used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the Principal Register established by the Act, to identify and distinguish his or her goods including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown. 39 The United States trademark law protects trademarks, service marks, certification marks, collective marks, and trade names. In order to qualify for legal protection, trademarks must be distinctive and nonfunctional. There is a broad spectrum of distinctiveness, which may be characterized as generic, descriptive, suggestive, arbitrary, or fanciful. The non-inherently distinctive marks may be incapable of acquiring distinctiveness and functioning as a trademark. 40 Other non-inherently distinctive marks may acquire distinctiveness through use and advertisement whereby the public recognizes the mark as an indication of its source. 41 It is generally necessary to register a trademark in a government office for effective protection. In some countries and in some situations, however, one may protect trademarks without registration. Under United States trademark law, rights arise from use, not registration, and the Trademark Act protects unregistered, as well as registered marks. Although federal registration grants substantive and procedural rights to the trademark owner, the absence of such federal registration does not place the mark in the public domain. Under the common law of unfair competition, the first person to use a mark in commerce in a particular geographic area has the right to exclude others from using a confusingly similar mark. 42 Trademarks are renewable indefinitely under United States law, as long as the mark remains in use. Federal trademark registration must be renewed every ten years. 43 The trademark owner is afforded civil 44 and criminal remedies 45 against trademark infringers. Geographical Indications "Geographical indication" designates a good as originating in a region or locality of a country, where a given quality, reputation or other characteristic of the good essentially is attributable to its geographical origin. 46 United States law only protects geographically descriptive terms that are not inherently distinctive upon a showing of acquired distinctiveness. 47 The law protects geographical indications against uses which mislead the public and acts of unfair competition. 48 Trade Secrets A "trade secret" is undisclosed information with commercial value because it is secret and is reasonably guarded. 49 The subject matter of trade secret protection is broad and includes things such as recipes, formulae for materials, compilations of information, computer programs, and production processes. Trade secrets are not limited, however, to scientific or technological information, but may include business and financial information such as customer lists, costs, and prices. 50 Countries protect trade secrets in different ways, such as by according to them the status of legal property under contract law, or by providing for prohibitions on espionage in the context of ethical business practices. Most developing countries do not have specific laws protecting trade secrets. The newest international trade agreements, such as the NAFTA 51 and TRIPS, 52 contain specific provisions for the protection of trade secrets. These protections apply to information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret. The rights of a trade secret owner are limited. Although the owner has the right to prohibit acquisition of the protected secret by wrongful means, such as breach of confidence, breach of contract, and industrial espionage, he does not have absolute power to exclude others from any particular activity. If misappropriation of the trade secret occurs in the United States, the trade secret owner has a cause of action under the Uniform Trade Secrets Act. 53 Although a number of states have adopted this piece of legislation, each state has its own body of law covering trade secrets. Both the Uniform Trade Secrets Act and the common law, however, require that a trade secret owner take reasonable efforts to protect the secret. Trade secrets may last for an indefinite period of time. As long as the information remains secret, has competitive value due to its limited availability, and is guarded with reasonable efforts, the trade secret protection subsists. Industrial Designs An industrial design is the ornamental feature of a useful article. The protection of industrial design covers the original ornamental features of a useful product, such as the design of the article, its shape, lines, and colors. 54 To be eligible for protection in a country, industrial designs must be original or novel, and the creator must register the design with the appropriate government office. Owners of a protected industrial design may prevent others from copying or imitating the protected design without the owner's authorization. The protection further provides that copies or imitations made without such authorization may neither be sold nor imported. Protection is granted for a limited period of time, usually between five and ten years. 55 B. Overview of Main Intellectual Property Treaties and Conventions 1. The Paris Convention for the Protection of Industrial Property The Paris Convention for the Protection of Industrial Property is one of the first international agreements for the protection of intellectual property rights. The original version, signed on March 20, 1883, has been successively revised. 56 The international order thus enjoys a modernized mechanism for the protection of intellectual property rights. The Paris Convention protects industrial property, namely patents, utility models, industrial designs or models, trademarks, service marks, trade names, indications of source or appellations of origin, and provides for the repression of unfair competition. 57 The Paris Convention uniformly established the principles and minimum guarantees for the international protection of intellectual property rights without prejudice to the domestic legislation of member nations. The main objective of the Paris Convention was to eliminate discrimination on the national level, thereby assuring foreigners that they could acquire and enforce their intellectual property rights in the same way as nationals of any member country of the Convention. Among its main provisions, the Paris Convention directs each member nation to accord national treatment to other member nations. 58 National treatment requires that member nations extend equal treatment to foreign intellectual property owners, affording them the same rights and protections as the nation extends to its own nationals. The Convention also requires all nations to honor prior applications of patents, trademarks, and industrial designs from a foreign nation. 59 The priority accorded to a national of a member nation filing an application to register a patent, utility model, trademark, service mark, or industrial design, within the proper term is granted the same force and effect as the same application if filed in the applicant's nation, provided the home country is a member nation of the Paris Convention. The national treatment provision of the Paris Convention, however, is often criticized because if a country chooses not to provide intellectual property protection for its citizens, the Paris Convention does not require it to provide intellectual property protection for foreigners. 60 Other important provisions concern the international protection of well-known marks 61 and the establishment of minimum norms regarding unfair competition. 62 Despite the fact that the Convention confers a substantial amount of control to the intellectual property right owners, there are limitations to the exercise of their exclusive rights. Each member nation, for example, has the right to grant compulsory licenses of works protected by patents without the express permission of the patent holders. 63 The Paris Convention requires member nations to provide effective legal remedies against trademark and trade name infringement and false designation of origin, including the seizure of infringing articles, 64 yet the Convention does not provide specific measures for the enforcement of intellectual property rights. Further, there are no provisions for settling disputes between the member nations. Although the Convention establishes an Assembly 65 and an International Bureau, 66 the scope of their powers is not outlined. Both the Paris and Berne Conventions provide for the establishment of an International Bureau or Secretariat, united in 1893 into what is now known as the "World Intellectual Property Organization" (WIPO). The United International Bureaux for the Protection of Intellectual Property also is known by its French acronym, "BIRPI." 67 2. The Berne Convention for the Protection of Literary and Artistic Works The Berne Convention was signed on September 9, 1886, and entered into force on December 5, 1887. 68 It is the first multilateral copyright treaty and enjoys the highest recognized standard of copyright protection among copyright treaties. The Berne Convention covers literary and artistic works and confers broad exclusive rights. Its minimum standards set forth an ambitious definition of works of authorship, by including "every production in the literary, scientific and artistic domain, whatever may be the mode or form of expression." 69 The original Berne Convention document established two main principles: the concept of a union, composed of the nations adhering to the Convention; and the national treatment rule. The Berne Union consists of a permanent entity constituting a separate cooperative unit that continues in existence regardless of future adherence or withdrawal from the Convention by individual nations. 70 Members of the Union agree to maintain a certain minimum level of copyright protection and to treat nationals of other member countries like their own nationals for purposes of copyrights. The rule of national treatment required by the Berne Convention provides that authors enjoy the same protection for their works in other nations as the protection those nations confer to their own authors. 71 In addition to national treatment, the Berne Convention requires minimum standards of protection of works that must be protected, which include "every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression." 72 Subject to some limitations, the exclusive rights of copyright owners include the right to translate; the right to perform in public dramatic, dramatic-musical and musical works; the right to recite in public literary works, the right to communicate to the public theperformance of such works; the right to broadcast; the right to make reproductions; and the right to make adaptations and arrangements of the work. The general rule as to the duration of protection is that it must be granted until the expiration of the fiftieth year after the author's death. 73 The Berne Convention lacks provisions for the enforcement of copyrights and for the settlement of copyright disputes. Article 22 provides for an Assembly with the obligation to "take any … appropriate action designed to further the objectives of the Union," yet the Convention does not explicitly provide enforcement measures. The Berne Convention has undergone major revisions to meet the requirements of technological developments affecting authors' rights and neighboring rights. Revisions of the original text generally improved and extended the rights of copyright owners. C. The World Intellectual Property Organization The World Intellectual Property Organization is an intergovernmental organization established by a Convention signed at Stockholm on July 14, 1967 and entered into force in 1970. 74 Since 1974, WIPO has been one of the sixteen specialized agencies of the United Nations and maintains its headquarters in Geneva. 75 WIPO administers several unions or treaties, each established by a multilateral agreement, dealing with the legal and administrative aspects of intellectual property. The main unions and treaties administered by WIPO include, inter alia, the Paris Union (for the protection of industrial property), 76 the Madrid Agreement (for the repression of false or deceptive indications of source on goods), the Madrid Union (for the international registration of marks), 77 the Patent Cooperation Treaty (PCT) Union (for cooperation in the filing, searching and examining of international applications for the protection of inventions where such protection is sought in several countries), 78 the Berne Union (for the protection of literary and artistic works), 79 the Rome Convention (for the protection of performers, producers of phonograms and broadcasting organizations), 80 the Washington Treaty (on intellectual property in respect of integrated circuits), 81 the Madrid Protocol (for the further development of the international registration of marks), 82 and the International Union for the Protection of New Varieties of Plants (UPOV). 83 WIPO's main objectives are to promote the protection of intellectual property throughout the world through cooperation among nations, where appropriate, in collaboration with any other international organizations and to ensure administrative cooperation among the intellectual property unions. 84 As a specialized United Nations agency, WIPO is responsible for promoting creative intellectual activity and for facilitating the transfer of technology related to intellectual property to developing countries. WIPO's goal is to accelerate their economic, social, and cultural development, subject to the competence of the United Nations and its organs. 85 WIPO also prepared model provisions for national intellectual property laws to provide for more efficient international intellectual property protection. Despite WIPO's efforts to promote international comity with respect to intellectual property rights protection, by the mid 1980s the level of harmonization among the different nations remained limited. WIPO's conventions received criticism as too ambiguous and too general to require adequate intellectual property protection. 86 Many also perceived the WIPO as lacking effective powers to discipline non-complying signatory nations. This encouraged developed countries to push for the inclusion of protection of intellectual property rights in several multilateral trade negotiations throughout the 1980s. 87 PART II: PRESENT SYSTEM OF INTERNATIONAL PROTECTION OF INTELLECTUAL PROPERTY RIGHTS A. The World Trade Organization (WTO) The conclusion of the Uruguay Round Agreements inaugurated a new stage in worldwide protection of intellectual property rights. 88 The Agreements established the World Trade Organization (WTO), 89 replacing the General Agreement on Tariffs and Trade (GATT). 90 The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 91 is one of several Uruguay Round Agreements. TRIPS, the General Agreement on Trade in Services (GATS), and GATT-1994 form the three main pillars of the WTO. The TRIPS Agreement constitutes a landmark in the evolution of an internationalconsensus on intellectual property protection and is the most significant advance in the international protection of intellectual property since the adoption of the Berne and Paris Conventions in the late 19th century. One of the main functions of the WTO is to oversee the implementation of the Uruguay Round Agreements. The TRIPS Council, 92 operating under the General Council of the WTO, serves as the administrative body monitoring the implementation and compliance of the TRIPS Agreement by WTO member nations. The TRIPS Council 93 also constitutes a forum for consultations on any TRIPS-related dispute arising between countries. The General Council, acting in its capacity as the Dispute Settlement Body, has the responsibility of settling disputes arising within the sphere of TRIPS. An effective system of protection and enforcement, as well as a greater degree of harmonization, is more likely to happen in the context of the broader country membership of WTO than in the previous mechanisms governing intellectual property rights. WTO and WIPO During the negotiation of the Uruguay Round Agreements, representatives of the developing countries argued that the WIPO was the proper forum for international intellectual property issues due to the GATT's lack of jurisdiction over international intellectual property matters. 94 WIPO, indeed, was the main forum for multilateral intellectual property issues until the conclusion of the TRIPS accords. Developed countries criticized WIPO administered Conventions 95 as offering inadequate intellectual propertyprotection in provisions considered too broad and ambiguous. The Paris and Berne Conventions, further, require nations to settle disputes at the International Court of Justice (ICJ), whose process usually is long and cumbersome. 96 Many perceived WIPO as lacking adequate power to discipline its member nations. The TRIPS Agreement provides more effective international protection of intellectual property rights than the WIPO. It accomplishes this through detailed minimum standards of intellectual property protection, which are provided within the framework of the TRIPS Agreement. Especially noteworthy are the mechanisms for the effective enforcement of the agreement and the provisions for dispute settlement among the member nations. Trade Related Aspects of Intellectual Property - TRIPS TRIPS's provisions cover a broad spectrum of intellectual property rights, namely: copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, protection of undisclosed information, and control of anti-competitive practices in contractual licenses. The TRIPS Agreement is grounded in the principles of national and most favored nation (MFN) treatments. The national treatment principle requires countries to provide to nationals of other countries treatment no less favorable than that granted to its own nationals regarding the protection of intellectual property rights, with some exceptions. 97 The MFN obligation requires that, with some exceptions, member nations immediately and unconditionally confer to nationals of other countries any advantage, favor, privilege, or immunity relating to the protection of intellectual property that is granted to the nationals of all other member nations. 98 The principle of transparency may also be characterized as a general obligation. Member nations are required to publish, or to make publicly available, laws and regulations as well as final judicial decisions and administrative rulings related to the subject matter of the Agreement. 99 Transparency is essential in order to enable governments and intellectual property right holders to be informed about measures affecting their interests. Copyrights and Related Rights The TRIPS Agreement improves the copyright protection provided by the basic standards of the Berne and Rome Conventions. 100 Article 9 requires member nations to comply with Articles 1-21 to the Appendix of the Berne Convention, except concerning the moral rights of authors. The TRIPS agreement further requires member nations to protect computer programs as literary works under the Berne Convention and to protect compilations of data and other material constituting intellectual creations because of the arrangement of their contents. 101 The agreement additionally provides copyright holders of computer programs the right to prevent unauthorized commercial rental of originals or copies of their works. 102 The TRIPS Agreement is innovative regarding the treatment of performers, providing them with the benefit of protection. Under TRIPS, performers must receive the right to prevent unauthorized recording and reproduction of their performances. In addition, performers must enjoy the right to prevent unauthorized broadcasts and other means of communication of a live performance to the public. 103 TRIPS provides sound recording producers with the right to authorize or prohibit the direct or indirect reproduction of their sound recordings as well as the authority to prevent commercial rentals of the sound recordings. Performers and sound recording producers are protected for fifty years from the date on which a performance or fixation occurred. 104 Broadcasters enjoy the right to prevent fixation of broadcasts, reproduction of such fixations, or rebroadcasts to the public. The term of protection for broadcasters is at least twenty years from the date on which the broadcast took place. The TRIPS Agreement further provides exclusive rental rights to the authors of cinematographic works and producers of phonograms and other sound recordings. If the rental has not caused widespread copying and material impairment of the reproduction rights of the copyright owners, however, the member nation may receive exemption from this obligation. 105 The Agreement provides that if a "system of equitable remuneration" were in place by April 14, 1994 the member nation could maintain its present system, instead of adopting exclusive rental rights. 106 Trademarks and Service Marks The TRIPS Agreement significantly enhanced the protection of trademarks provided by the Paris Convention for the Protection of Industrial Property. 107 TRIPS provides a definition of trademarks and expressly requires the protection of service marks. 108 It also requires a system of publication whereby each trademark is published for opposition, either before it is registered, or promptly thereafter. This affords opponents a reasonable opportunity to lodge petitions to support or cancel the registration of trademarks and service marks. 109 Article 16 extends to service marks the protection of well-known marks required by Article 6 of the Paris Convention. 110 Article 16 also extends protection to goods and services that have no connection with a registered mark, but whose use would suggest such a relationship. This protection applies where the use is likely to harm the interests of the registered mark holder. 111 The term of protection for a trademark must exist for no less than seven years, and the holder must renew the trademark's registration indefinitely. 112 Cancellation of a mark on grounds of non-use takes place only after three non-interrupted years, unless valid reasons for non-use exist, such as import or other government restrictions. 113 Article 21 of the TRIPS Agreement bars compulsory licensing for trademarks. This refers to the use of the trademark without the authorization of the trademark owner and allows assignment of trademarks with or without the owner's goodwill. The agreement also requires that "use of trademarks in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form, or use in a manner detrimental to its capability to distinguish the goods or services." 114 Geographical Indications Geographical indications identifying a good originating in a member's territory, region, or locality must receive protection against use misleading the public or constituting an act of unfair competition under the TRIPS Agreement. 115 Article 23 provides additional protection for geographical indications identifying wines and spirits. They must be protected, whenever used on other wines or spirits not originating in the place indicated, and the use of indications in combination with "kind," "type," or "style" is prohibited. There are exceptions, however, particularly where a geographical indication evolved into a generic term in the local language, and for marks used on the same goods or services in good faith for ten years prior to the conclusion of the Uruguay Round. 116 Industrial Designs TRIPS Article 25(1) of the Agreement requires that member nations provide for the "protection of independently created industrial designs that are new or original." Designs that are dictated essentially by technical or functional considerations may not receive protection. The TRIPS Agreement specifies the minimum standards of protection for industrial designs. Article 25(2) provides protection for textile designs, particularly in regard to any cost, examination, or publication, which must not unreasonably impair the opportunity to seek and obtain such protection. Copyright or industrial design law may provide the requisite protection. Article 26(3) of the TRIPS Agreement provides that the term of protection should last at least ten years. Owners of protected designs can prevent the "making, selling, or importing" of articles constituting an infringement of their rights. 117 Patents The TRIPS Agreement requires the availability of product and process patents for all new and useful products in all fields of technology, without discrimination of subject matter. 118 This necessitates that many developing countries reform their patent laws to cover, for example, pharmaceutical and chemical products or processes. Article 27(1) requires non-discrimination by member nations as to the place of invention, thus permitting proof of a date of invention in any WTO member nation for the purpose of establishing priority of invention. Member nations may provide exclusions from patentability to protect public order or morality, serious prejudice to the environment, and human, animal, or plant life. The following exceptions to the broad coverage of Article 27(1) are permissible: plants and animals other than micro-organisms, biological processes for the production of plants and animals other than micro-biological processes; 119 and diagnostic, therapeutic, and surgical methods for treating humans or animals. 120 The basic patent rights provided in Article 28 of the TRIPS Agreement include the right of patent owners to prevent others, without consent, from making, using, offering for sale, selling, or importing products covered by a product patent; and the right to prevent others, without consent, from using a process claimed in a patent or using, offering for sale, selling, or importing at least the product obtained directly from use of the process. 121 Article 29(2) of TRIPS provides patent owners with the rights to assign, transfer by succession, and license rights under the patent. Member nations are permitted to keep limited exceptions to patent rights provided that those exceptions do not unreasonably conflict with the normal exploitation of the patent by the patent holder. The exceptions also may not prejudice legitimate interests. Although the TRIPS Agreement does not mention the term "compulsory license," it places restrictions on allowing the use of the subject matter of a patent by the government or third parties, without the authorization of the patent holder. Article 31 specifies the conditions constituting grounds for member nations to grant such compulsory licenses, such as public health, nutrition, other reasons of public interest, national emergency, and public non-commercial use. Member nations, however, are not allowed to grant compulsory licenses if a patent holder does not manufacture the patented invention in the country. The sale of imported products is treated as a local "working" requirement. Compulsory licenses for "non-working" are granted only in cases where a patent holder makes no provision for marketing his product in a member nation. 122 The minimum term of protection is twenty years from the filing date. 123 Layout Designs (Topographies) of Integrated Circuits The TRIPS Agreement requires member nations to protect the layout design of integrated circuits, known as semi-conductor chips. Its text incorporates and improves the provisions of the Washington Treaty 124 negotiated in 1989 under the auspices of WIPO. Namely, TRIPS: . expressly covers articles containing protected chips; . provides that innocent infringers are liable to pay a sum equivalent to a reasonable royalty to the right-holder after notice of infringement; 125 . extends the term of protection to ten years from filing (in countries that require registration) or first commercial exploitation; 126 and . prohibits compulsory licensing in connection with semiconductor chip layout designs, except as an antitrust remedy for non-commercial government use. 127 Protection of Undisclosed Information The protection of trade secrets, previously not covered in existing international law, is another innovation of the TRIPS Agreement. The TRIPS Agreement explicitly requires that "undisclosed information" benefit from protection. TRIPS characterizes undisclosed information as a category of intellectual property rights, but links its protection to practices against unfair competition as identified in Article 10 of the Paris Convention (1967). 128 Article 39 requires member nations to provide protection to information that is secret, that is, information that is not generally known or readily ascertainable, has commercial value because it is secret, and has been subject to efforts to keep it secret by the person lawfully in control of the information. The TRIPS Agreement does not treat undisclosed information as a form of property, but requires that a person lawfully in control of such information be able to prevent others from disclosing, acquiring, or using the information without his consent in a manner contrary to honest commercial practices, i.e. in acts of unfair competition. 129 In addition, the TRIPS Agreement contains provisions on undisclosed test data and other data required by governments for marketing approval of pharmaceuticals or agricultural chemical products using new chemical entities. The governments of member nations must protect the data against unfair commercial use.

Enforcement of Intellectual Property Rights

The enforcement of intellectual property rights in the existing international treaties is inadequate. The TRIPS Agreement breaks new ground in providing a detailed system with procedural norms and remedies that must be available under national laws to effectively enforce intellectual property rights. Part III of the TRIPS agreement contains provisions regarding the enforcement of intellectual property rights, such as civil and administrative procedures, provisional and final remedies, criminal penalties, and border enforcement, which is obligatory for counterfeit and pirated goods, but discretionary for other types of intellectual property. The objectives of the provisions regarding enforcement of intellectual property rights require that the effective, fair and equitable means of enforcement are not used to hinder trade.