WTO Dispute Settlement and the Agreement on Trade-Related Aspects of Intellectual Property Rights


ABSTRACT The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") has ushered in a new generation of legal issues that may ultimately find their way into the WTO dispute settlement arena. In light of the extensive coverage given to the WTO Dispute Settlement Understanding (DSU) elsewhere in this book, and the broad range of dispute-related issues raised by the TRIPS Agreement, this chapter will focus on issues that are more or less specific to the TRIPS Agreement.The TRIPS Agreement is unique in the WTO context; it is the only WTO agreement that requires the members to affirmatively (or positively) incorporate complex substantive legal standards into national laws that govern both domestically-produced and imported goods. It relies for many of its rules on cross-reference to an existing body of multilateral conventions administered outside the WTO. The substantive rules imposed by the TRIPS Agreement are the subject of existing bodies of judicial opinion in the national and regional territories that are now subject to its discipline. Underlying the superficial certainty of the TRIPS Agreement substantive prescriptions are existing gulfs of interpretative difference regarding the meaning of many of its rules.The TRIPS Agreement is unique in that it establishes minimum standards applicable to the enforcement of legislation by WTO members. The establishment of minimum enforcement standards necessarily implies that claims alleging the maintenance of inadequate enforcement procedures can and may be brought before the WTO Dispute Settlement Body, yet the TRIPS Agreement is silent on just how such a claim might be proven, e.g., where the threshold of inadequate enforcement might lie.Identifying methods and sources of interpretation for the TRIPS Agreement's substantive requirements, as well as delimiting the appropriate threshold of adequate enforcement, are but two of the intriguing tasks facing the WTO Dispute Settlement Body.