Dr. Abdumumin Yuldashov
Senior lecture, PhD in Law at the Tashkent State University of Law,
Director CMO, Young member WIPO ADR center
Image source: Business Standard
April 19, 2021
Introduction
Today, intellectual property (IP), along with representing each country to the world, also has a special material value and plays an important role in trade and economic relations. In particular, according to the consulting company Brand Finance, in 2020, the Apple brand was valued at $ 263.3 billion. WTO regulates not only trade relations, but also the legal protection of IP under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), one of the fundamental agreements of this organization. And if Uzbekistan joins the WTO, it has to bring its legislation into conformity with all WTO’s agreements, including the TRIPS. The purpose of this blogpost is to analyze Uzbek legislation in order to pinpoint existing norms that coincide with the TRIPS, and to suggest new ones.
Relationship between TRIPS and WIPO
The main purpose of the TRIPS is to ensure that the legal norms of IP of states do not interfere with their participation in international trade relations, and to ensure the stability of interests between the copyright holders ( the authors) and the users. It is known that the World Intellectual Property Organization is an international organization in the field of IP, and international documents governed by it reflect the general rules of IP (status, protection, classification of rights, etc.). The TRIPS is dedicated to the protection of IP rights. On December 22, 1995, an agreement was signed between WIPO and WTO to regulate cooperation. In accordance with this agreement, the WTO was authorized to regulate relations related to the sale of IP.
Uzbekistan, WTO and TRIPS Agreement
The WTO is an international economic organization, and more than 90 percent of world trade is carried out within the WTO member countries. Therefore, becoming a member of this international organization remains as one of the main directions of the foreign economic policy of Uzbekistan.
Now, after a long break, Uzbekistan has resumed work on joining the WTO. In particular, the Cabinet of Ministers approved the composition of the Interdepartmental Commission on the WTO on December 24, 2018 and the Charter of the Interdepartmental Commission No. 339 on the WTO dated May 28, 2020. According to the Charter, one of the most important tasks of the commission is to propose amendments and additions to the legislation of Uzbekistan in order to make them consistent with WTO rules and regulations.
Although Uzbekistan’s accession process to the WTO was very slow, it is noteworthy that by the 2000s, new laws on IP had been adopted (in the field of legal protection of integrated circuit topologies). The existing provisions regarding the TRIPS norms were adopted in a new edition (on breeding achievements, on trademarks, on inventions, utility models and industrial designs). The main reason for this was the signing of the Memorandum of Uzbekistan’s accession to the WTO in 1998 and the fact that the process of harmonization of national legislation with the norms of international organizations was carried out, at least in part. As a result, the IP norms listed in parts 1-2, 4-7 of part 2 of the TRIPS are regulated by the Civil Code of Uzbekistan and some special laws.
Of the four international treaties and agreements that form the basis of the TRIPS, today Uzbekistan is a member of the Berne Convention for the Protection of Literary and Artistic Works (accession in 2005) and the Paris Convention for the Protection of Industrial Property (accession in 1991). It should also be noted that the “Washington Treaty on Intellectual Property in Respect of Integrated Circuits” (1989) has not yet entered into force. Nowadays in Uzbekistan work is underway to accede to the last of the major international agreements – Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. By joining this Convention Uzbekistan can strengthen the position of related rights in market relations, in particular, the protection of the exclusive rights of broadcasters and producers of phonograms.
The main aspects of the TRIPS agreement are reflected in the legislation of Uzbekistan
| No. | Main aspects of TRIPS | Status of reflection of main aspects TRIPS in Uzbek legislation |
| 1 | Paris Convention (1967) and Berne Convention (1971). | Uzbekistan joined these international Conventions in 1991 and 2005, respectively. The norms of these international documents are reflected in the national legislation. |
| 2 | Computer programs and data compilation | The issues of creating computer programs and databases, their legal protection and use are regulated by the 1994 law. |
| 3 | Copyright | After joining the Berne Convention in 2006, the Law “On Copyright and Related Rights” was adopted in a new edition. |
| 4 | Norms with trademarks, industrial designs and inventions | Legal relations with trademarks, industrial designs, inventions are regulated by separate legislation. This legislation is based on the requirements of international treaties and conventions, such as the Paris Convention, Treaty on the Law of Trademarks, etc. |
| 5 | Integrated Circuit Topologies | The topologies of integrated circuits are regulated by the Law “On the Legal Protection of Topologies of Integrated Circuits” (2001). |
| 6 | Term of protection | The terms of legal protection of objects of copyright and industrial property comply with the TRIPS norms. |
| 7 | Compensation for damage | The procedure for compensation for damage is enshrined in Art. 65 of the Law Uzbekistan “On Copyright and Related Rights” and in Art. 14 of the Law “On the Legal Protection of Programs for Electronic Computers and Databases”. |
Main aspects of the TRIPS agreement that have not been adopted today in legislation and practice
| No. | TRIPS | Comments |
| 1 | Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) | Currently, work is underway to join Uzbekistan to this Convention. It should be noted that the Law of “On Copyright and Related Rights” also reflects the norms related to related rights. |
| 2 | Geographical indications (GI) | Currently, a draft law is being prepared on the legal regulation of relations with GI in connection with Uzbekistan’s accession to the WTO, as well as within the framework of the The EPCA governs trade and economic relations between the EU and Uzbekistan project. |
| 3 | Criminal liability for illegal use of trademarks | The Criminal Code of Uzbekistan provides for liability only for copyright infringement. |
| 4 | Burden of proof | Under national law, the burden of proof of patent infringement lies with the plaintiff. In accordance with Art. 34 TRIPS, the burden of proof falls on the defendant. |
| 5 | Ex officio action (action by administrative organs ) | there is no ex officio principle in Uzbekistan customs legislation. In order to implement international norms for the protection of IP rights, the customs authorities are currently developing a project to amend the Customs Code, which will contain actions to suspend the release in the free circulation of goods on the own initiative of the customs authorities. |
| 6 | Objection procedure | In accordance with the Decree of the President of the Republic of Uzbekistan dated 08.02.2019 No. 4168, manufacturers, suppliers, sellers or their representatives, after the publication of applications, can submit written comments to the Agency about the bad faith of the submitted application for registration. But TRIPS implies the existence of an opposition procedure in separate laws. |
After accession to the WTO: a transition period
It is important to note the importance of the transition period that will come upon joining the WTO. A transitional period is a period aimed at harmonizing the country’s legislation on the basis of TRIPS in order to ensure the gradual compliance by a WTO member country with its obligations within the organization. At the end of the transitional period, the member country that has used this period must fully meet its obligations. The period given for developed countries – 1 year, for developing countries and countries with economies in transition – 5 years, for relatively less developed countries – 11 years. As an example, Kazakhstan became a member of the WTO in 2015 and received a 5-year transition period.
In my opinion, Uzbekistan should also go through a transition period for joining the WTO. The transition period is important for the regulation of other similar cases (patent fees), as shown in the table above. Considering the pace of reforms in Uzbekistan today, it is appropriate to take a transitional period of 5 years. During this period, Uzbekistan will have to harmonize the norms set out in TRIPS in the field of IP, based on the requirements of the WTO. In general, Uzbekistan’s accession to the WTO is important for the protection of intellectual property rights, which is important not only in the process of external, but also internal relations to change the attitude towards IP.
Cite as: Abdumumin Yuldashov, “Intellectual Property Policy in the Process ofAccession to the World Trade Organization: TRIPS Agreement and National Legislation of Uzbekistan”, Uzbekistan Law Blog, 19.04.2021
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