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TRIPS

TRIPS stands for "Agreement on Trade-Related Aspects of Intellectual Property Rights." It is the most comprehensive and legally binding international agreement on intellectual property rights in existence today. TRIPS was negotiated during the Uruguay Round of Multilateral Trade Negotiations (1986-1994) and came into force on 1st January, 1995 as Annex 1C to the Agreement Establishing the World Trade Organization (WTO). Every member of the WTO is automatically bound by TRIPS. India is a founding member of the WTO and therefore bound by TRIPS from its inception.

TRIPS is unique among international IP agreements because it is administered by the WTO (not WIPO) and has an effective dispute settlement mechanism with the power to impose trade sanctions on non-complying members.

Background and Need for TRIPS

Before TRIPS, international IP protection was governed by conventions administered by WIPO — the Paris Convention (for industrial property) and the Berne Convention (for copyright). However, these conventions had significant weaknesses:

  1. They lacked minimum standards in many areas
  2. They had no effective enforcement mechanism
  3. Many developing countries had low levels of IP protection
  4. Developed countries (particularly the USA, EU, and Japan) were losing billions of dollars due to piracy and counterfeiting in developing countries

Developed countries therefore pushed for a comprehensive IP agreement within the WTO framework that would have binding minimum standards and an effective dispute settlement mechanism. The result was TRIPS.

Structure and Coverage of TRIPS

TRIPS is divided into 7 Parts and 73 Articles. It covers the following areas of intellectual property:

Part I — General Provisions and Basic Principles (Articles 1-8)

Part II — Standards Concerning the Availability, Scope and Use of Intellectual Property Rights (Articles 9-40) This is the substantive core of TRIPS covering:

  • Copyright and Related Rights (Articles 9-14)
  • Trade Marks (Articles 15-21)
  • Geographical Indications (Articles 22-24)
  • Industrial Designs (Articles 25-26)
  • Patents (Articles 27-34)
  • Layout Designs (Topographies) of Integrated Circuits (Articles 35-38)
  • Protection of Undisclosed Information (Trade Secrets) (Article 39)
  • Control of Anti-Competitive Practices in Contractual Licences (Article 40)

Part III — Enforcement of Intellectual Property Rights (Articles 41-61)

Part IV — Acquisition and Maintenance of Intellectual Property Rights (Articles 62)

Part V — Dispute Prevention and Settlement (Articles 63-64)

Part VI — Transitional Arrangements (Articles 65-67)

Part VII — Institutional Arrangements (Articles 68-73)

Key Principles of TRIPS

1. National Treatment — Article 3 Each WTO member must accord to nationals of other members treatment no less favourable than it accords to its own nationals with respect to IP protection. India must treat a US inventor the same as an Indian inventor.

2. Most Favoured Nation (MFN) Treatment — Article 4 Any advantage, favour, privilege, or immunity granted by a member to nationals of any other country must be accorded immediately and unconditionally to nationals of all WTO members. If India gives a special IP benefit to Japan, it must give the same benefit to all WTO members.

3. Minimum Standards TRIPS establishes minimum standards of IP protection that all WTO members must provide. Members can provide higher levels of protection but not lower. These minimum standards cover all major areas of IP.

4. Enforcement TRIPS requires all WTO members to provide effective enforcement mechanisms including:

  • Civil judicial procedures (injunctions, damages, account of profits)
  • Criminal procedures for willful trade mark counterfeiting and copyright piracy on a commercial scale
  • Border measures to prevent importation of infringing goods

TRIPS and Patents

The patent provisions of TRIPS (Articles 27-34) are among the most important and controversial:

Article 27 — Patents must be available for any inventions in all fields of technology (including pharmaceuticals and agricultural chemicals) that are new, involve an inventive step, and are capable of industrial application. Product patents must be available (not just process patents).

Article 28 — A patent gives the owner exclusive rights to make, use, offer for sale, sell, and import the patented product.

Article 33 — The term of patent protection must be at least 20 years from the filing date.

Article 31 — Compulsory licensing is permitted under specified conditions including national emergencies, public health crises, and non-commercial use by the government.

TRIPS Flexibilities — Doha Declaration

The Doha Declaration on TRIPS and Public Health (2001) clarified that TRIPS should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and promote access to medicines. Key flexibilities include:

  1. Right to grant compulsory licenses to produce generic medicines
  2. Right to determine grounds for compulsory licensing
  3. Right to determine what constitutes a national emergency
  4. Parallel importation — importing genuine products from another country where they are sold at lower prices

India has actively used these flexibilities — most notably through Section 3(d) of the Patents Act (preventing evergreening) and the grant of India's first compulsory license in Natco Pharma v. Bayer Corporation (2012).

TRIPS and India

India amended its major IP laws to comply with TRIPS:

  • Patents Act, 1970 — Amended in 1999, 2002, and 2005
  • Trade Marks Act, 1999 — Replaced the old 1958 Act
  • Copyright Act, 1957 — Amended in 1994 and 2012
  • Designs Act, 2000 — Replaced the old 1911 Act
  • Geographical Indications of Goods (Registration and Protection) Act, 1999 — New Act
  • Protection of Plant Varieties and Farmers' Rights Act, 2001 — New Act

Dispute Settlement Under TRIPS

TRIPS disputes are resolved through the WTO Dispute Settlement Body (DSB). If a member fails to comply with TRIPS, another member can bring a complaint before the DSB. The DSB can authorize trade retaliation against non-complying members. India has been involved in several TRIPS disputes — most notably the India-Patents dispute (DS50) where the USA challenged India's patent system before the WTO.

Conclusion

TRIPS represents a landmark achievement in international IP law — the first truly comprehensive, binding, and enforceable multilateral agreement on intellectual property. By establishing minimum standards across all areas of IP and providing an effective dispute settlement mechanism, TRIPS has fundamentally shaped the global IP landscape. For developing countries like India, TRIPS presents both challenges (the need to provide stronger IP protection) and opportunities (the use of flexibilities to protect public health and access to knowledge). India has navigated this complex landscape skillfully, implementing TRIPS while using available flexibilities to protect its public interest objectives. 

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