The TRIPS Agreement: What It Is and Why It Changed Everything

In one line

TRIPS is Annex 1C of the Marrakesh Agreement, it binds every WTO Member, and it is the first intellectual property treaty anyone can be made to obey.

In exam wording: the Agreement on Trade-Related Aspects of Intellectual Property Rights is Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, concluded on 15 April 1994 and in force from 1 January 1995. Being a Multilateral Trade Agreement under Article II:2 of that Agreement it is an integral part of it and binding on all Members, and by its own Article 64 it is enforceable through the Dispute Settlement Understanding.

The shape of the Agreement

Seventy three articles in seven Parts, and a candidate should be able to name the Parts.

Part I, general provisions and basic principles, Articles 1 to 8. Scope of obligations, the incorporated conventions, national treatment, most favoured nation, exhaustion, objectives and principles.

Part II, standards concerning the availability, scope and use of intellectual property rights, Articles 9 to 40, in eight Sections: copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, protection of undisclosed information, and control of anti competitive practices in contractual licences.

Part III, enforcement of intellectual property rights, Articles 41 to 61, in five Sections: general obligations, civil and administrative procedures and remedies, provisional measures, special requirements related to border measures, and criminal procedures.

Part IV, acquisition and maintenance of intellectual property rights and related inter partes procedures, Article 62.

Part V, dispute prevention and settlement, Articles 63 and 64.

Part VI, transitional arrangements, Articles 65 to 67.

Part VII, institutional arrangements and final provisions, Articles 68 to 73.

What was new

Five things, and no earlier treaty had any of them.

Minimum standards across every field at once. Paris governed industrial property, Berne governed copyright, Rome governed neighbouring rights, and none of them touched the others. TRIPS covers seven categories in one instrument and, by Article 2.1 and Article 9.1, carries the older conventions inside itself.

Enforcement obligations. Part III requires Members to make procedures available, to give courts particular powers, to provide provisional measures, border measures and criminal penalties for wilful trademark counterfeiting and copyright piracy on a commercial scale. Paris and Berne said almost nothing about how a right was to be vindicated.

Most favoured nation. Article 4 puts a trade principle into intellectual property for the first time, so an advantage given to one country's nationals must be given to all.

Dispute settlement with consequences. Article 64 applies the Dispute Settlement Understanding, so a breach can be found by a panel and, on non compliance, retaliation can be authorised.