Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules
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Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules Intellectual Property in the WTO Volume II

Intellectual Property in the WTO Volume II

  • Research Handbooks on the WTO series

Edited by Carlos M. Correa

This concise and detailed Handbook addresses some of the most complex issues raised by the implementation of the TRIPS Agreement globally. Among other themes, the Handbook explores the applicability of GATT jurisprudence for the interpretation of the Agreement’s provisions. It also considers key issues relating to the enforcement of intellectual property rights, such as border measures and injunctive relief. Teamed with the first volume – Research Handbook on the Protection of Intellectual Property under WTO Rules – this analysis is supplemented by a thorough review of the most important cases on TRIPS decided under the WTO dispute settlement mechanism.
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Chapter 1: The Applicability of GATT Jurisprudence to the Interpretation of the TRIPS Agreement

Susy Frankel

Extract

1 The applicability of GATT jurisprudence to the interpretation of the TRIPS Agreement Susy Frankel 1. Introduction To assess the applicability of interpretations of GATT1 to the TRIPS Agreement2 it is necessary to examine the relationship between those agreements. The relationship between the TRIPS Agreement and other WTO agreements is complex. Structurally, the relationship is that the GATT, GATS3 and the TRIPS Agreement are the main annexes of the WTO Agreement.4 The TRIPS Agreement preamble, among other broad statements of intention, says that the members recognised the ‘need for new rules and disciplines concerning . . . the applicability of the basic principles of GATT 1994’ to the TRIPS Agreement. When the TRIPS Agreement was first in force, this preamble made sense as there were established practices and understandings about the operation of GATT 1947. The new WTO Agreement, including TRIPS, was established to develop and change the original GATT 1947, particularly the process of dispute settlement. However, GATT disputes were the known source of discussion of trade principles and WTO panels and the Appellate Body referred to them, particularly in the earlier disputes brought to the WTO.5 1 General Agreement on Tariffs and Trade 1994, Marrakesh Agreement Establishing the World Trade Organization (‘WTO Agreement’), Annex 1A, Article XX, 15 April 1994, 1867 UNTS 187, 33 ILM 1153 (1994) (‘GATT’). 2 Agreement on Trade-related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization (‘WTO Agreement’), Annex 1C, 33 ILM 1197, 1198 (1994) (‘TRIPS Agreement’). 3 General Agreement...

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