5.2. IP enforcement
The TRIPS Agreement includes detailed rules on the minimum enforcement requirements at the national level
in WTO members. 6 In general, there is a broad agreement among WTO Members that the IP enforcement
measures put in place should be effective. However, this understanding is circumscribed by three important
principles. It is in the context of these principles that enforcement provisions under Part III of the TRIPS
Agreement should be understood.
The first principle is the recognition that “intellectual property rights are private rights.” 7 This means that since
IP enforcement relates to private property, except in criminal cases, it is not the responsibility of the state to
defend each right but rather to provide the means for individuals and firms to enforce their rights. The second
principle is the recognition that while the TRIPS Agreement is intended to provide effective and appropriate
means of enforcing IP, the structures to be put in place must take “into account differences in national legal
systems” 8 and recognise the right of each WTO member “to determine the appropriate method of implementing
the provisions of this Agreement within their own legal system and practice.” 9
Finally, is a principle based on the basic rule of treaty interpretation which requires that treaty interpretation
must be done in light of the object and purpose of such a treaty. The purpose and objective of the TRIPS
Agreement, as set out in Article 7, is the protection of IP in order to contribute to technological innovation, the
transfer and dissemination of technology. This means that enforcement provisions should help ensure the
achievement of these objectives. When dealing with IP enforcement, it is particularly important to remember
that an innovator today may be an alleged infringer tomorrow and vice-versa. Consequently, except for clear
criminal cases, IP disputes are disputes between legitimate businesses which all contribute to Rwanda’s
economy.
A number of priority technical and financial cooperation and capacity building needs have been identified by
key stakeholders. These related to training, equipment for detection and testing, public awareness and resources
for the commercial courts.
(a) Public awareness campaigns
There are both short-term and medium-term needs related to public education and awareness. In the short-term
technical and financial support should be directed to developing and delivering programmes about the
importance of innovation and creativity for the achievement of Vision 2020 and the goals of EDPRS, the role of
IP in the wider scheme and the provisions of the new IP Law. Particular emphasis will have to be given to
flexibilities, safeguards and exceptions. In the medium-term, technical and financial support will be needed to
develop targeted programmes for the private sector and professional bodies, such as the law society, as well as
the media.
(b) Training for enforcement agencies
Taking into account that the police, customs officials and judicial officers have many other responsibilities,
there is a clear need for equipping key officials with knowledge about basic IP concepts including the use and
importance of flexibilities, the rights and obligations of rights holders and third parties under the law and, in the
case of customs and police, detection methodologies.
With the increasing complexity of the cases that the enforcement agencies have to deal with there is also a clear
need for technical and financial support for advanced specialised training and courses for the police, customs
authorities and the judiciary. In the medium to the long-term support will be required to enable the relevant
officials undertake refresher courses and courses in new detection and testing methodologies.
(c) Detection and testing equipment and manuals for key agencies
6
The whole of Part III of the TRIPS Agreement, containing 21 articles out of the Agreement’s 72 articles, relates to enforcement.
See the Preamble to the TRIPS Agreement, para 4.
8
See para 2(c) of the Preamble to the TRIPS Agreement.
9
Article 1.1 of the TRIPS Agreement.
7
14