Chapter 10: Towards a Development Approach on IP Enforcement: Conclusions and Strategic Recommendations
Xuan Li and Carlos M. Correa The TRIPS Agreement introduced for the first time a wide set of international minimum standards on IPRs. The proponents of the agreement consciously complemented the standards on the availability of IPRs with detailed rules on preliminary and permanent injunctions, border measures, damages and other enforcement issues that were absent in previous international agreements on IPRs. Given the complexity of the matter and the great variation in enforcement measures in national laws, the TRIPS rules define the objectives that such measures are intended to reach, rather than the specific means to be used to that end. This realistic approach (it would have been impossible to obtain consensus on more detailed enforcement standards) left WTO Member States considerable leeway to maintain or adopt new enforcement measures in accordance with the peculiarities of their legal systems. The implementation of the TRIPS enforcement standards required extensive changes in the legislation of many countries, particularly in developing countries as those standards largely reflected the interests and policies applied in the advanced countries. Any legal mechanism for protection of rights and the realization of their attendant obligations must be backed by an effective enforcement regime. This fundamental rationale behind legal enforcement of substantive rights and obligations is also applicable to enforcement of intellectual property (IP) rights. However, all states have the right to frame their own legal systems of IP protection and enforcement within the minimum international legal framework under the TRIPS 207 208 Intellectual property enforcement Agreement. The TRIPS...
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