Mumbai University Solved Question Papers
Intellectual Property and International Organisations and Agreements
Previous Year Question Paper with Solution
LLM · Group 3 Law of Intellectual Property and Information Technology
2016 Examination
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Mumbai
First published on munotes.in on 14 September 2026.
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Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2016 examination.
The law in these answers is stated as at September 2026, and six changes date most textbooks on this subject. The WTO's Appellate Body has been unable to hear appeals since 11 December 2019, so an appeal can be decided only where both parties have agreed to appeal arbitration, as members of the interim arrangement of 2020 have, and India has not joined it. The moratorium on non-violation complaints under TRIPS lapsed at the end of March 2026. Least developed countries need not apply most of TRIPS until 1 July 2034. WIPO administers twenty-eight treaties after two new treaties of 2024, and India joined the Strasbourg Agreement with effect from 7 July 2026. The Intellectual Property Appellate Board was abolished with effect from 4 April 2021. And the Jan Vishwas (Amendment of Provisions) Acts of 2023 and 2026 omitted sections 68 and 67 of the Copyright Act respectively.
The questions below are the paper as the University of Mumbai set it at the 2016 examination, in the order it was set.
MarksPage
The questions in this volume are the questions asked at the 2016 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 5 questions answered
Instructions printed on the paper
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Answer
For full marks, cover: two limbs set together because each explains the other. For the NORMS FOR DEVELOPING COUNTRIES, organise them by the five legal techniques the trading system uses to accommodate development, NON-RECIPROCITY, FLEXIBLE OBLIGATIONS, TIME, ASSISTANCE and PROCEDURAL PRIVILEGE, naming the MULTILATERAL AGREEMENT in which each appears, and show the conditions attached to them with India, Export Related Measures. For the INTERNATIONAL CHARACTER OF INTELLECTUAL PROPERTY, show how a territorial right acquired international character in layers, through the WIPO treaties, trade law, investment law and national courts, with Philip Morris v. Uruguay on trademarks in investment treaties and Milmet Oftho Industries v. Allergan on reputation that crosses borders. Link the limbs: development norms are the reason TRIPS reached developing countries on staggered and flexible terms.
The GATT of 1947 treated every contracting party alike: each gave most favoured nation treatment and each exchanged concessions reciprocally. From the 1950s, and decisively after the first United Nations Conference on Trade and Development in 1964, developing countries argued that formal equality between economies of very unequal strength favoured the stronger. The trading system did not answer with a single rule. It developed five legal techniques, which now run through almost every WTO agreement under the collective name SPECIAL AND DIFFERENTIAL TREATMENT; the Secretariat counted 157 such provisions in 2023.
Part IV of the GATT. Added by a protocol of 1965 in force from 1966, Articles XXXVI to XXXVIII commit developed contracting parties to give priority to reducing barriers on products of export interest to developing countries, and Article XXXVI:8 declares that developed countries do not expect reciprocity for commitments made to reduce barriers to the trade of less-developed contracting parties.
The Enabling Clause. The decision of 28 November 1979 on differential and more favourable treatment gave a permanent legal basis, notwithstanding most favoured nation treatment, to four departures: generalised tariff preferences for developing countries, differential treatment in the non-tariff codes, preferential arrangements among developing countries themselves, and special treatment of the least developed.
Duty-free access for the least developed. At Hong Kong in 2005 ministers agreed that developed members, and developing members able to do so, would give duty-free and quota-free access to products of least developed countries, and at least to 97 per cent of their tariff lines. India launched its own duty-free tariff preference scheme for least developed countries in 2008.
| Multilateral agreement | Flexibility for developing members |
|---|---|
| GATT 1994, Article XVIII | Sections A and C permit measures to promote infant industries; Section B permits import restrictions to safeguard the balance of payments |
| Agreement on Agriculture | Reduction commitments of two-thirds of those of developed members, spread over ten years instead of six; de minimis domestic support of 10 per cent instead of 5; investment subsidies generally available to agriculture and input subsidies for low-income or resource-poor producers exempt under Article 6.2; least developed members exempt from reduction commitments |
| Agreement on Subsidies and Countervailing Measures, Article 27 and Annex VII | Least developed members, and listed developing members until their income per head reaches 1,000 US dollars, may keep export subsidies; higher de minimis levels in countervailing investigations |
| General Agreement on Trade in Services, Articles IV and XIX:2 | Commitments to increase developing countries' participation; freedom to open fewer sectors |
| Multilateral agreement | Flexibility for developing members |
|---|---|
| TRIPS Agreement | Transition periods, the flexibilities of Articles 7, 8, 30 and 31, and the technology transfer duty in Article 66.2 |
| Trade Facilitation Agreement, Section II | Each developing and least developed member sorts every provision into category A, B or C, and category C obligations bind only after it has acquired capacity through assistance |
Transition periods let developing members adopt the same obligations later. Developing members had five years, and least developed members seven, to eliminate trade-related investment measures under Article 5.2 of the TRIMs Agreement; developing members could delay the Customs Valuation Agreement for five years under its Article 20.1; and TRIPS gave developing members until 2000, and until 2005 for product patents in new fields, with least developed members now protected until 2034.
The agreements oblige developed members to help others comply: technical assistance under Article 9 of the SPS Agreement and Article 11 of the TBT Agreement, technical and financial cooperation under Article 67 of TRIPS, and capacity building tied to the category C commitments of the Trade Facilitation Agreement, which is the first WTO agreement to make an obligation depend on assistance actually being received.
The Dispute Settlement Understanding tilts procedure towards weaker parties. A developing country complainant may invoke the accelerated procedures of a 1966 decision (Article 3.12); consultations must give special attention to its problems (Article 4.10); on request a panel must include a panellist from a developing country (Article 8.10); a developing respondent gets sufficient time to prepare its case (Article 12.10); the report must say how special and differential provisions were taken into account (Article 12.11); in implementation particular attention is to be paid to developing countries' interests (Article 21.2); members must exercise due restraint in bringing cases against least developed countries (Article 24); and the Secretariat supplies legal experts (Article 27.2). Outside the DSU, the Advisory Centre on WTO Law in Geneva has since 2001 given developing countries subsidised legal advice and representation.
Special treatment is not unconditional, and India has felt its limits. Annex VII(b) of the Subsidies Agreement let India, among other listed countries, keep export subsidies until its GNP per head reached 1,000 US dollars, which a WTO decision of 2001 fixed as three consecutive years at that level measured in 1990 dollars. By the Secretariat's calculations India crossed the threshold in the mid-2010s, but it maintained its export promotion schemes, including the Merchandise Exports from India Scheme, the export oriented unit and export promotion capital goods schemes, and the special economic zones scheme.
In India, Export Related Measures (DS541) the United States challenged those schemes in March 2018 as prohibited export subsidies. India argued that having graduated, it was entitled to a fresh eight-year period to phase them out. The panel, in its report of 31 October 2019, rejected that argument, held the schemes to be prohibited export subsidies no longer sheltered by Annex VII, and recommended their withdrawal. India appealed on 19 November 2019, three weeks before the terms of two of the Appellate Body's three remaining members expired on 10 December 2019, so the appeal was never heard. India replaced the Merchandise Exports scheme with a scheme remitting duties and taxes on exported products from 1 January 2021, and on 13 July 2023 the two members notified a mutually agreed solution and India withdrew its appeal. The case shows that the norms for developing countries are legal entitlements with defined limits, which end when their conditions are no longer met.
The norms are spread across the WTO's legal texts, though not every agreement carries them: ANNEX 1A contains GATT 1994 and the agreements on agriculture, sanitary and phytosanitary measures, technical barriers, investment measures, anti-dumping, customs valuation, preshipment inspection, rules of origin, import licensing, subsidies, safeguards and trade facilitation, together with the Agreement on Fisheries Subsidies in force from 15 September 2025, the textiles agreement having expired in 2005; ANNEX 1B is the GATS; ANNEX 1C is TRIPS; ANNEX 2 is the Dispute Settlement Understanding; ANNEX 3 is the Trade Policy Review Mechanism; and ANNEX 4 holds the plurilateral agreements on civil aircraft and government procurement.
Intellectual property began as a national privilege granted by a sovereign for its own territory, and in law it remains territorial. Its international character was added in four layers, each supplied by a different body of law.
| Layer | Source | What it adds |
|---|---|---|
| Treaty protection | Paris (1883), Berne (1886) and the WIPO treaties | National treatment, priority, independence of rights, minimum standards, international filing |
| Trade law | TRIPS (1994) and the WTO | Minimum standards for all members, most favoured nation treatment, enforcement obligations, dispute settlement between States |
| Investment law | Bilateral investment treaties and investment chapters of trade agreements | Intellectual property treated as a protected foreign investment, with investor-State arbitration |
| National courts | Doctrines of trans-border reputation and exhaustion | Reputation and trade flows abroad given legal effect at home |
The Paris and Berne Conventions made foreign right holders equal to nationals, let an applicant's first filing secure its place abroad for a period of priority, kept national rights independent of one another, and fixed minimum standards. WIPO's filing systems, from the PCT to the Madrid Protocol, then made international protection a practical proposition for ordinary businesses.
TRIPS turned intellectual property into a trade obligation. It applied the trading system's two principles of non-discrimination to intellectual property, NATIONAL TREATMENT in Article 3 and, for the first time in a multilateral intellectual property agreement, MOST FAVOURED NATION TREATMENT in Article 4; it imposed minimum standards on every WTO member; and it made those standards enforceable through WTO dispute settlement. Because TRIPS was part of the single undertaking, the development norms described in Part A travelled with it: developing members received transition periods, least developed members still do, and the Agreement's flexibilities are special and differential treatment in intellectual property form.
Most bilateral investment treaties define a protected investment to include intellectual property rights, so a foreign right holder can claim that a State's regulation has expropriated its rights or treated it unfairly, and can take that claim directly to international arbitration.
Philip Morris Brands Sarl v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, tested the reach of that layer. Uruguay required each tobacco brand to be sold in a single presentation, which forced Philip Morris to withdraw most of the variants it sold under its Marlboro and other brands, and enlarged graphic health warnings to 80 per cent of the front and back of cigarette packets. Philip Morris claimed under the Switzerland-Uruguay bilateral investment treaty of 1988, in force from 1991, that the measures expropriated its trademarks and goodwill and denied it fair and equitable treatment.
The tribunal, in its award of 8 July 2016, dismissed every claim. It held that a trademark registration, under Uruguayan law as under the Paris Convention and TRIPS, confers a right to exclude others from using the mark, not an absolute right to use it oneself, and that the measures were a good faith, non-discriminatory exercise of the State's power to protect public health. It ordered Philip Morris to pay 7 million US dollars towards Uruguay's costs; one arbitrator dissented in part, on the single presentation requirement and on a claim of denial of justice. The international character of intellectual property therefore now includes investment protection, but that protection yields to legitimate public health regulation.
National courts decide how far reputation and trade abroad count at home.
Milmet Oftho Industries v. Allergan Inc., (2004) 12 SCC 624, decided by the Supreme Court on 7 May 2004, shows the pull of the international. Allergan, an American company, had used OCUFLOX for an eye preparation since 9 September 1992 and registered the mark in several countries, but had not sold the product in India. Milmet, an Indian company, coined OCUFLOX from "ocular" and "ciprofloxacin" for its own eye and ear drops, obtained drug approval in August 1993, applied to register the mark and was the first to sell in India. A single judge of the High Court refused Allergan an injunction because Milmet was first in the Indian market; a Division Bench granted one.
The Supreme Court continued the injunction. It reasoned that "the field of medicine is of an international character": doctors follow medical literature and conferences worldwide, so allowing an identical mark for a similar drug would create an anomalous and potentially dangerous confusion. But it cautioned that multinational companies with no intention of entering India should not be allowed to stifle an Indian company that genuinely adopted a mark and was first in the market, directed the suit to be decided quickly, and left the trial court to find on evidence who was first in the market, which it called the ultimate test. Indian courts have since insisted, in the Supreme Court's later decision on Toyota's PRIUS mark, reported in 2018, that foreign reputation must be shown to have reached Indian consumers, which keeps the international character of reputation within the territorial principle.
Intellectual property is international in its sources, its markets and its disputes, but national in its grant and enforcement. That dual character is exactly why the development norms matter: standards made internationally apply to economies at very different levels, and the transition periods, flexibilities and procedural protections of the WTO are the system's way of reconciling a common rulebook with unequal capacity.
Conclusion. The NORMS FOR DEVELOPING COUNTRIES in the multilateral agreements of the GATT and the WTO work through five techniques: NON-RECIPROCITY and preferences under Part IV of the GATT, the Enabling Clause of 1979 and duty-free access for least developed countries; FLEXIBLE OBLIGATIONS in Article XVIII of the GATT, the Agreements on Agriculture and Subsidies, the GATS, TRIPS and the Trade Facilitation Agreement; TIME through transition periods; ASSISTANCE; and PROCEDURAL PRIVILEGE in the Dispute Settlement Understanding. They are conditional entitlements, as India learned in India, Export Related Measures, where graduation from Annex VII ended its right to keep export subsidies, a dispute settled in July 2023.
The INTERNATIONAL CHARACTER OF INTELLECTUAL PROPERTY was built in four layers: TREATY PROTECTION under the Paris and Berne Conventions and the WIPO systems; TRADE LAW, in which TRIPS added most favoured nation treatment, minimum standards and dispute settlement and carried the development norms with it; INVESTMENT LAW, whose limits appear in Philip Morris v. Uruguay, where trademarks gave a right to exclude but not a right to override public health measures; and NATIONAL COURTS, which gave effect to international reputation in Milmet Oftho Industries v. Allergan while keeping it within the territorial principle.
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