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Using the TRIPS Agreement's unfair competition clause to curb the misappropriation of biological resources, traditional knowledge and expressions of folklore in user countries

Edson Beas Rodrigues

Keywords: traditional knowledge; genetic resources; expressions of folklore; TRIPS Agreement; art 10 bis of the Paris Convention; unfair competition; unjust enrichment

Intangible biocultural heritage (IBH) is made up of three groups of intangible biocultural resources (IBRs), namely, biological resources, traditional knowledge and traditional cultural expressions. Historically, institutions based in industrialized countries have systematically misappropriated the IBH belonging to communities in developing countries by means of claiming Intellectual Property Rights over products derived. Since the 1960s, developing countries have unsuccessfully endeavoured to reach international agreements suitable for protecting IBRs. After the Agreement on Trade-Related Aspects of Intellectual Property Rights came into effect in 1995, those countries have committed to grant legal protection to intellectual products in general, even if derived from IBRs. Despite criticism of the TRIPS Agreement, it embodies a provision, albeit neglected, which can be used by countries of origin of IBRs as a tool to require from user countries of IBRs the adoption of effective measures designed to curb the misappropriation of these intangible goods.

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