Paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan stipulates that international agreements ratified by Kazakhstan have priority over national legislation and this provision also applies to the TRIPS Agreement and the terms of the Protocol of Accession of the Republic of Kazakhstan to the WTO. Ratified international agreements are applied directly, except in cases when a law has to be adopted before an international agreement became applicable. A law has to be adopted in cases, where (i) the current legislation does not comply with the WTO Agreement and has to be amended to comply with the WTO Agreement; or, (ii) issues contained in the WTO Agreement are not addressed in existing legislation. However, it must be mentioned that in the process of its accession to the WTO Kazakhstan ensured full compliance of its legislation with commitments undertaken in accordance with the TRIPS Agreement and the Protocol of Accession of the Republic of Kazakhstan to the WTO.
Specifically, the Law of the Republic of Kazakhstan No. 365-V "On Amendments and Addenda to Certain Legislative Acts of the Republic of Kazakhstan in Connection with Accession to the World Trade Organization" was adopted on 27 October 2015.
With the purpose of implementation of intellectual property obligations, the following amendments were made into national legislation of the Republic of Kazakhstan:
• In order to bring national legislation in compliance with Article 46 of the TRIPS Agreement amendments were made to the Civil Code, Code on Administrative Violations and Trademarks Law. These amendments provide that simple removal of unlawful trademark is not sufficient and guarantee that counterfeit goods will be destroyed.
• In order to bring national legislation in compliance with Article 39.2 of the TRIPS Agreement and ensure 6 years of data exclusivity to producers of original pharmaceutical products, amendments were made to the Health Code of the Republic of Kazakhstan.
• In order to bring national legislation in compliance with Article 31 of the TRIPS Agreement amendments were made to the Patent Law, providing that:
- compulsory license for semi-conductor technology shall only be granted for public non-commercial use; and
- any compulsory license shall be issued in the first instance for providing for demands of the domestic market of the Republic of Kazakhstan, except when the purpose of the license is to export the patented product to a territory with no or insufficient manufacturing capacity, in accordance with international agreements, ratified by the Republic of Kazakhstan.
