The Revitalisation of the Object and Purpose of the TRIPS Agreement

Abstract

Abstract The limited role the objectives and principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (Arts 7 and 8) have played so far in the interpretation and implementation of its substantive provisions has often been criticised. The WTO Panel and Appellate Body Reports in the ‘Australia—Plain Packaging’ dispute are likely to change this situation for the future as, for the first time, the World Trade Organization (WTO) dispute settlement bodies fully engaged with Arts 7 and 8 to interpret Art 20 relative to the use of trade marks. Reliance on these provisions led the Panel and the Appellate Body to conclude that there are legitimate reasons for which Members may encumber trade mark use. The awakening of these two long dormant provisions could have a fundamental impact in offering the possibility of a more flexible reading of TRIPS. It could indeed secure the adaptability of intellectual property rights to the evolution of economic, technological and social circumstances by guaranteeing a more balanced interpretation of the limitations and exceptions included in the Agreement, for example, as advocated several years ago by a group of international IP scholars in the ‘Declaration on a balanced interpretation of the three-step test’. Furthermore, the use of these two provisions could serve as a gateway for the taking into account of ethical imperatives, supported by international human rights in the interpretation of the TRIPS norms, such as, for example, public health imperatives, crucial in the context of pandemics. Such a reading has been advocated in the past and the ‘Plain Packaging’ reports might lead to a more frequent and welcome reliance on human rights arguments in the context of international trade law.