TRIPs

Introduction
The TRIPS Agreement covers the issues of protection of intellectual property in trade-related
areas to a significant degree, and is seen as a comprehensive new framework prescribing
standards of intellectual property protection.

While intellectual property (IP) has traditionally not been a subject of trade negotiations, the
Uruguay Round was able to deliver a common minimum standards agreement on IP with a
binding dispute settlement.

The TRIPS agreement is radically different from previous international IP agreements

(primarily, the Paris Convention on industrial property, 1883 and the Berne Convention,
1886), inasmuch as it lay down standards of protection.

These standards of protection as laid down in different sections of the TRIPS agreement are
in the area of copyrights, trademarks, geographical indications, patents, plant variety
protection, industrial designs, layout designs, trade secret protection, etc
 Situation pre-TRIPs
The Paris Convention, 1883 offers protection for different kinds of industrial property in a widest
sense to include patents, trademarks and trade names, industrial designs, indications of source,
protection against unfair competition.
However, Paris Convention does not lay any minimum standards of IP protection. In other words,
countries are required to give effect to the terms of the treaty only when they have a domestic
system for industrial property protection.
the important pillar of Paris Convention was national treatment principle, which basically requires
and member to provide same treatment offered to nationals to be extended to foreign nationals.
Ex : Patent Protection for 10 years in the US. If an Indian applies for patent in US. India does
not provide patent protection. What should US do?
The Berne Convention, 1886 is distinct from Paris convention not only in terms of its application
to copyright law, but also in terms of its legal effect.
Berne does establish some minimum standards of protection. Hence, members are required to give
effect to the terms of the treaty.
Minimum obligation to provide protection for life+ 50 years in mandatory under the convention. The
convention also talks about rights of copyright holder, including moral rights (right to paternity and
right to integrity of the work).

Berne convention establishes the national treatment principle, however, with a major exception. It
exempts countries to allow deviations from national treatment provision in relation to the term of
protection based on the country of the origin requirement.
Prior to the TRIPS Agreement, very few provisions in GATT Agreement dealt with IPRs. IP was viewed
more as an obstacle to free trade.
Article III:4 (National Treatment) – same treatment to like goods in case of IP laws.
Article IX.6 (Marks of Origin) – No use of overlapping / identical marks so as to cause confusion.
(avoidance of counterfeit products)
Article XX:d (General Exceptions) – if enforcement of IP laws causes barriers to trade, it is allowed.
 Uruguay Round and TRIPs
The TRIPS was an outcome of intense lobbying by private corporations with the United
Negotiation
States Trade Representative.

With the Berne convention and Paris convention under the WIPO forum, the standards with
regards to IPR were already in place at the international forum. However, the developed
countries wanted to increasingly harmonize the IP regime at the international level. Multiple
efforts were undertaken by the developed countries to do so, however, it was blocked by the
developing and least developed countries. Thus, a solution could not be arrived at under the
WIPO forum.

This led to private organizations who were losing out on a globally recognized IP protection
lobbied with their respective governments to engage in dialogues with other countries to
bring in a harmonized system of IP protection regime under the GATT forum.

This led to a tripartite alliance between the EU, USA and Japan led by their respective
industry groups belonging to different sectors like pharmaceutical, music, software,
semiconductors, GIs which initiated the TRIPs negotiation in the Uruguay Round.
Whether intellectual property rights should be protected at the international trade level?

Jagdish Bhagwati is of the view that if at all IPR is to be regulated at the international trade level, it
should only include standards that shall apply at the border level. What a country does in its domestic
front with respect to grant of IPR is not a concern of International Trade regulating body. Against
common minimum standards.

Many other academicians and practitioners are of the view that unless there are certain basic
protection requirements imposed at a domestic level, the entire issue of IPR will not be solved and
the benefits that IPR has with regards to international trade shall not be achieved truly.
It is important to note that countries like India did offer some initial resistance. When it was realised t
hat there was no much scope for articulating developing countries positions India led developing cou
ntries into negotiating key flexibilities in the TRIPS Agreement.
 TRIPS Highlights
Pre-TRIPs Relation
Article 2 links relevant substantive provisions of existing WIPO administered treaties like the Paris
Convention, Berne Convention and the Rome Convention with the TRIPS Agreement mutatis muta
ndis. All the main substantive provisions of these conventions have been incorporated by reference
into the TRIPS Agreement, with the exception
Common Minimum Standards
Article 1:1 of the TRIPS Agreement requires that WTO members must give effect to the terms of
the agreement.
the minimum term of copyright protection is the life of the author and 50 years after his death. - Every
member must have the same term of protection
What if a country provides the term of protection as life+75 years?
Members are also allowed to conclude TRIPS+ agreements (standards of IP protection moving beyond TRIP
S) provided they are not inconsistent with the provisions of the TRIPS Agreement.
NON-DISCRIMINATION
National Treatment (Article 3) : the national treatment clause forbids discrimination between a Member’s
own nationals and the nationals of other Members.
Question :
The Indian patents act states that the invention of an Indian national shall be protected for 20 years whereas in
case of a national of any other country, the patent protection is for 10 years. Is this in violation of the national
treatment obligation under TRIPS?
MFN
the MFN treatment clause forbids discrimination among the nationals of WTO Members. The MFN principle
requires to accord to nations of WTO Members any advantage given to nationals of any other country - Member
or not of the WTO.
Question :
A, a German National has applied for a patent in India and is granted protection for 10 years and an additional 5
years for processing delays. B, a US national applies for a patent in India and in spite of processing delays does
not receive 5 years of extended patent protection as in A's case. Decide whether MFN obligation is fulfilled.
Language of balance

Preamble: Desiring to reduce distortions and impediments to international trade, and

taking into account the need to promote effective and adequate protection of intellectual
property rights, and to ensure that measures and procedures to enforce intellectual property
rights do not themselves become barriers to legitimate trade. (PRO IPR)

Article 7 lays down the objectives of the TRIPS Agreement. It states: The protection and
enforcement of intellectual property rights should contribute to the promotion of
technological innovation and to the transfer and dissemination of technology, to the mutual
advantage of producers and users of technological knowledge and in a manner conducive
to social and economic welfare, and to a balance of rights and obligations.

Article 8 discusses principles of the TRIPS Agreement. Article 8.1 states Members may, in
formulating or amending their laws and regulations, adopt measures necessary to protect
public health and nutrition, and to promote the public interest in sectors of vital importance
to their socio-economic and technological development, provided that such measures are
consistent with the provisions of this Agreement.
Article 8:2 of the TRIPS Agreement states:
“Appropriate measures, provided that they are consistent with the provisions of this
Agreement, may be needed to prevent the abuse of intellectual property rights by right
holders or the resort to practices which unreasonably restrain trade or adversely affect
the international transfer of technology.”

Availability of DSU to Solve Conflicts

Under the conventions concluded within the WIPO forum, there was no scope to go against a cou
ntry who did not comply with the standards set by the countries. That is, only if the countries chos
e to have an IP regime within their domestic borders could the conventions be applicable.

However, under TRIPs, firstly, the standards were compulsorily to be implemented in the
country’s domestic economy. Additionally, if they were not met with, a violation complaint coul
d be filed under the DSU against that country.