TRIPS synchronization prevents WTO conflicts.
Mendenhall 5/21 [James Mendhenhall; JAMES MENDENHALL is a partner in Sidley’s Global Arbitration, Trade and Advocacy group in in Washington, D.C., concentrating on proceedings before the Committee on Foreign Investment in the United States (CFIUS), international arbitration, international trade policy, and international trade litigation; “The protection of Intellectual Property Rights through WTO dispute settlement”; Research Handbook on Intellectual Property Rights and Arbitration; https://doi.org/10.4337/9781800378360.00023]//KuGa 1. THE TRIPS AGREEMENT: OVERVIEW
As explained in Section 1.1, below, the domestic legal regimes of WTO Members must meet (or exceed) the minimum standards of treatment set forth in the TRIPS Agreement. Further, as explained in Section 1.2, the TRIPS Agreement incorporates by reference key provisions of certain other international treaties on IP and allows Members to enforce those provisions through the WTO dispute settlement mechanism. Section 1.3 details some of the important substantive guarantees created by the TRIPS Agreement.
Interaction between Domestic IP Laws and the TRIPS Agreement
The grant, maintenance, and enforcement of IP rights have traditionally been the province of domestic legislation and regulations.3 As such, IP rights are territorial, and their creation, maintenance, protection, and revocation – before the introduction of treaties with IP-related provisions – had traditionally been a matter on which states would freely legislate within their territory. As a result, IP rights have evolved differently in different states. These differences often created difficulties for international businesses. For example, a producer creating innovative goods in a state with strong IP protection and then placing them on the market in a state with weak IP protection could face the risk that other economic actors in the import market would copy and market the invention in the import market. The TRIPS Agreement leaves the protection and enforcement of IP primarily to domestic legislation but creates certain minimum standards to which the domestic IP legal framework must adhere.4 For example, the TRIPS Agreement requires Members to grant patents without discrimination as to the field of technology or the country of invention, as long as certain minimum criteria are met.5 It further requires that the term of patent protection should be at least 20 years from the filing date.6 Members must implement these requirements through domestic law. If a Member fails to do so, it would violate the TRIPS Agreement, triggering the availability of WTO remedies. The TRIPS Agreement also imposes specific obligations regarding ‘civil judicial remedies’7 and ‘criminal procedures’8 in respect of IP infringement. TRIPS Article 41.1 requires that such enforcement procedures must ‘permit effective action against any acts of infringement of intellectual property rights covered by [the TRIPS Agreement], including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.’ Furthermore, the judicial and executive authorities must implement TRIPS-consistent IP laws.9 Finally, as recognized in Article 1.1 of the TRIPS Agreement, Members ‘may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement ….’ However, as clarified by Article 1.1, if a Member does provide more extensive protection, it must not do so in a manner that contravenes any provisions of the TRIPS Agreement.