China—Intellectual Property Rights: Implications for the TRIPS‐Plus Border Measures

Abstract

One of the ground‐breaking features of the World Trade Organization (WTO) Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS) is its part III on the enforcement of intellectual property (IP) rights. In early 2009, the first WTO Dispute Settlement Panel Report primarily addressed obligations on IP enforcement. Here, the technical success of the US border measures claim comes with a crucial limitation: those Chinese measures that cover basically all of the commercially relevant activity are ab initio excluded from the panel's findings. Because they go beyond the minimum standards of TRIPS, the panel relied on one of the few TRIPS provisions that specify the relevance of TRIPS for additional “TRIPS‐Plus” IP protection and enforcement. Given that such “TRIPS‐Plus” measures are increasingly common in national laws and international treaties, it is time to take a closer look at how TRIPS addresses TRIPS‐Plus IP protection. With a focus on border measures, I conclude that TRIPS contains not only minimum but also maximum standards or “ceilings” that impose limits on additional IP protection and enforcement. Such ceilings in TRIPS can function as limits for further extensions of IP protection and enforcement—as currently negotiated under a proposed Anti‐Counterfeiting Trade Agreement or relating to border measures against generic drugs in transit.