Various international organizations have seen the need to bring legal agreements to life today for unique reasons. One of which is the Agreement on Trade and Other Related Aspects of Intellectual Property Rights (TRIPS) by the World Trade Organisation (WTO). TRIPS’ objective is to reduce barriers in international trade, among others related to intellectual property rights (IPR). Interestingly, its coming into force was laced with various controversies; it seemed like one region wanted it more than the rest. However, in consideration of proposals, arguments, compromises, and perceived benefits, TRIPS came to be. Apparently, considering its commendable objectives, the agreement has attracted a varied yet reasonable degree of acceptance, as is evident in its historical development, implementation, and enforcement.

What is TRIPS?

The agreement on trade-related aspects of intellectual property rights is an international agreement by the members of the WTO. As an organization that facilitates global trade, the WTO saw the need to lay down international standards for the uniform regulation, protection, and enforcement of different intellectual property (IP) rights among its members.

The intellectual property rights covered under the agreement include the following:

  1. Copyrights and other rights related to it;
  2. Geographical indications;
  3. Industrial designs;
  4. Integrated circuit layout designs;
  5. Patents;
  6. Plant varieties;
  7. Trademarks and trade names;
  8.  Undisclosed or confidential information;
  9.  Trade Secrets.

What is the History of the TRIPS Agreement?

On October 30, 1947, 23 countries established the General Agreement on Tariffs and Trade (GATT), a legal agreement for global trade regulation. The members sought to cover various issues that arise in multilateral trade. Consequently, they commenced negotiations relating to different issues in international trade, called “rounds” of agreements. However, none of these rounds seemed to cover intellectual property rights. During the 1978 Tokyo Round, the United States (US) spearheaded a proposal and supported by the European Commission (EC) relating to border measures against counterfeit trademark goods, but it made no headway.

By 1982, it was revisited, and countries like Canada, the EC, Japan, and the United States supported it, but no agreement was reached. However, a lot changed between 1986 and 1994, called the Uruguay round.

Once again, the US spearheaded a clamour for IPR protection at the global level and by countries internally. They believed that the lack of it in several countries was against their interests. The Organisation for Economic Co-operation and Development (OECD) countries supported the US with the condition that the protection of IP revolves around “trade-related aspects“.

In 1986, at the beginning of the Uruguay round, negotiations about TRIPS began in earnest. Different countries, both developed and developing, resisted this for different reasons, such as the feasibility of its internal enforcement. However, as more developed countries saw the benefits that would accrue to them, they accepted TRIPS. However, much was not achieved initially. But the TRIPS negotiation was reviewed in a way that would make it appealing to both developed and developing countries. The years of negotiations paved the way for the emergence of the TRIPS Agreement in 1994. In 1995, the TRIPS Agreement came into effect, and the signatories of GATT formed the WTO.

What is the Level of TRIPS Implementation?

TRIPS provides that signatories to the WTO must implement its provisions. So, countries were/are obligated to implement it. However, they were lenient enough to give developed, developing, and least developed countries (LDCs) varying time frames to apply TRIPS to their national laws.

Developed countries were given until 1996. Developing countries were given until 2000 but extended to 2005 for countries that hadn’t extended patent protection to an area of technology as required by TRIPS. Then, LDCs were given until 2005 but extended to 2013 and 2034, and 2016 for pharmaceutical patents.

In addition, there was a clamour by countries, especially developing countries and LDCs, that the strict implementation of TRIPS would not be in their interest. For instance, countries’ application of the compulsory licensing rule, which TRIPS frowns at, maybe in their interest. As a result, countries were granted the flexibility to apply it as they suited.

However, to what extent have WTO countries implemented the TRIPS Agreement? To begin with, the extensions of the implementation dates for developing countries, and especially LDCs, reflect low compliance or at least an inability to comply fully. Otherwise, there would be no need for extensions. Nonetheless, justifications for these extensions abound. For instance, the TRIPS Agreement provides for the establishment of intellectual property offices in countries. Due to the administrative costs, these countries may have little to no resources to implement them.

On the other hand, the WTO reported that many developing countries had enacted national legislation to implement the provisions of the TRIPS agreement before 2000. In addition, a report states that 27 developing countries implemented major TRIPS provisions before 2000, while 24 of them have major outstanding implementations. Furthermore, 12 LDCs implemented major provisions of TRIPS before 2013.

As is expected, developed countries, which spearheaded TRIPS, seem to have implemented it the most. The European Union and its member states went as far as ratifying it. The US Congress passed the Uruguay Round Agreements Act (URAA) to make its IP laws compliant with TRIPS. However, they have also been found wanting in their implementation. For instance, a scholar has argued that TRIPS provides for the equal treatment of all countries in IP matters, but 35 U.S.C. § 102(e) seems to violate this. Its interpretations in cases like re Hilmer made this apparent. This is a situation where there are two similar or identical US patent applications (one by a foreigner and another by an American, etc.). Even if the foreigner filed first in another country, the application received first by the US Patent and Trademark Office will be considered prior art.

While countries have made efforts to bring their laws in line with the agreement, ensuring they sufficiently implement them and also enforce them is paramount.

Trips Enforcement: Internationally and Internally

The entire essence of the agreement will not come to fruition if members flout its provisions without consequence. Otherwise, it becomes a toothless bulldog. The WTO prepared for this possibility by providing a dispute resolution mechanism. In addition, there is such a forum as the TRIPS council, where countries consult with each other on the problems they may have regarding the agreement.

These mechanisms have been proven to be effective. In 1996, the US sought consultation with India, claiming that it did not provide patent protection for pharmaceutical and agricultural chemical products, contrary to the TRIPS agreement. The WTO panel opined that India indeed did not provide a means for preserving novelty and priority in applications for product patents for pharmaceutical and agricultural chemical inventions. The appellate body upheld this. In 1999, India implemented the recommendations by enacting legislation.

In 2007, the US claimed the Chinese copyright law provision, which does not protect works banned by various laws, is contrary to the Berne convention incorporated into the TRIPS agreement. The WTO panel affirmed that the provision was contrary to the TRIPS agreement.

In 2013, Indonesia sought consultations with Australia, claiming that its various plain packaging laws (i.e., laws against the use of tobacco by limiting them to a particular package) were contrary to the TRIPS agreement. However, the WTO panel opined Indonesia failed to prove its entire case.

Furthermore, there has been some success in its enforcement internally. A case in point is the Irish case of  Allen & Hanburys, Ltd. v. Controller of Patents. The 1992 patent law of Ireland provided for compulsory licensing of food, medical, or surgical products. Clonmel filed for a compulsory licence for a product owned by Glaxo Group, Ltd. and Allen & Hanburys, and the controller of patents granted it. However, considering that the TRIPS agreement had been domesticated, the high court held that section 42 of the law was subject to the TRIPS agreement, which is against compulsory licensing.

However, the flexibility granted to some countries has made it possible to implement the TRIPS as they deem fit. As a result, citizens of these countries may not successfully enforce their rights based on the TRIPS agreement if a TRIPS provision is not part of national legislation. This is because most countries treat treaties as merely treaties until they are domesticated. In the Nigerian Fan Milk International A/S (Fan Milk) case, it was held that although the TRIPS agreement provides for the protection of well-known marks, this is not obtainable in Nigeria since it has not been domesticated.

Conclusion: We have considered what TRIPS is, a brief account of how it came into existence, and the reality of its execution and enforcement by member states and the WTO, as the case may be. Evidently, its historical development, implementation, and enforcement have shown how much various countries have accepted it over the years. Commendably, its popular name, “the most comprehensive multilateral agreement,” has not been in vain.

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.

Author

  • Title

    Mercy Munachimso Nwaogazie is a 500 level law student at Nnamdi Azikiwe University, Nigeria. She aims to become an international intellectual property (IP) law expert and a prolific legal content writer. She understands the need for individuals, businesses, and startups to protect their intellectual properties (IP) and to have various IP strategies. With her knowledge and skills, she seeks to advise them, expose them to IP laws, and influence them to see how these various laws can protect them. Her interest in writing led her to be a member of the NAU Law Review for 2+ years. As an IP law enthusiast, she has completed several related courses on WIPO and Coursera. She is currently pursuing a diploma in US intellectual property law and paralegal studies. To practice her knowledge, she participated in a couple of competitions, like the My Intellectual Property Law Guide (MIPLG) 2020 debate competition.