SYMBIOSIS INTERNATIONAL (DEEMED) UNIVERSITY

TRADE IN INTELLECTUAL PROPERTY- FIRST INTERNAL

ASSESSMENT

RESEARCH REPORT

ISHA SRIVASTAVA

16010126352

DIV D

BBA LLB (H)

2016-21
 TRADE IN INTELLECTUAL PROPERTY

INTERNATIONAL REGIME OF INTELLECTUAL PROPERTY LAWS AND ITS

IMPORTANCE IN TRADE

A. INTRODUCTION

The fundamental objective of intellectual property laws is to maintain a balance between the
creator‟s rights to commercially exploit his inventions or creations and the larger interests of the
society.1 Thus, from a commercial perspective, it can be inferred that the need to develop a
detailed intellectual property framework arose in order to protect the commercial viability and
profitability of original creations and inventions by preventing the production and distribution of
cheap, unauthorized imitations as well as fraudulent marketing of substandard products.

The Intellectual Property (“IP”) regime is woven together through various multilateral and
bilateral Trade Agreements. The most essential agreement governing the framework of
intellectual property law is The Agreement on Trade Related Aspects of Intellectual Property,
1995 (“TRIPS”).2 It is evident that IP law has laid the foundation for various Trade Agreements
and has shaped the future of innovation and technology. This Research Report relies on
secondary data in order to understand the relation between IP law and international trade and the
problems therein.

B. INTERNATIONAL REGIME OF INTELLECTUAL PROPERTY LAWS

It is noteworthy that patents and copyrights were first used in Renaissance, Italy.3 However, it
was only in the 19th century that the evolution of the intellectual property regime truly
commenced.4 According to Professor Gian Carlo Moschini5 , IPRs have evolved into a mainstay
of western legal tradition.

1
JT International SA V. Commonwealth Of Australia [2012] HCA 43.
2
Ryan Cardwell & Pascal Ghazalian, The Effects of the TRIPS Agreement on International Protection of Intellectual
Property Rights, International Trade Journal, 21,19-24.(2012)
3
Laurence Heffler, Regime Shifting in the International Intellectual Property System, Symposium,38, 38-44.(2009)
4
Gian Carlo Moschini, Intellectual Property Rights and the World Trade Organization: Retrospect and Prospects,
Iowa State University Press, 3, 1-31. (2004)
5
Ibid.

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The immense need for international cooperation in the field of intellectual property laws was for
two reasons. Firstly, in order to strengthen the domestic IPR framework in developing and least
developing countries (“LDCs”), and secondly, to harmonize the international intellectual
property law structure which was built on various multilateral treaties and conventions.6
Primarily, three conventions form the foundation pillars of the international IPR regime, namely:
the Paris Convention on the Protection of Industrial Property, 18837 (“Paris Convention”) which
sought to protect patents on industrial innovations; the Berne Convention for the Protection of
Literary and Artistic Works, 18868 (“Berne Convention”) which conferred restricted copyright to
literary and artistic works only; and the Madrid Agreement Concerning the International
Registration of Marks, 18919 (“Madrid Agreement”) which dealt with registration of trademarks.
The said Agreements laid out basic provisions such as applicability of the most favoured nation
principle and national treatment principle to the IPR regime, however, they failed to lay down
effective mechanism to deal with protection of IPRs and enforce them.10

The next major development in the IP regime was the establishment of the World Intellectual
Property Organisation (“WIPO”) in 1967 as an agency of the United Nations. The function of
WIPO is to work as an administrative body supervising the functioning of multilateral treaties
and providing technical support to nations so that the member countries can incorporate
11
minimum standards of IP protection within their domestic law framework. However, since the
Paris Convention and Berne Convention lacked detail enforcement mechanisms, WIPO failed to
put the provisions of these Conventions into effect. 12

The agenda of the Western countries to lay down minimum IP Protection standards intensified.
This was evident in the mid 1990s when the North American Free Trade Agreement (“NAFTA”)
was introduced which highlighted the necessity to protect IPR in order to promote trade and

6
Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property, The International
Lawyer, 21(3), 633, 627-638.(1987)
7
Paris Convention for the Protection of Industrial Property, as last revised at the Stockholm Revision Conference,
Mar. 20, 1883, 21 U.S.T. 1583.
8
Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, revised at Paris July 24,
1971 25 U.S.T. 1341.
9
Madrid Agreement Concerning the International Registration of Marks, WIPO Pub. No. 204, 2004.
10
Dr. Peter Drahos, The Universality Of Intellectual Property Rights: Origins And Development, World Intellectual
Property Organisation. (Accessed on January 10,2020, 12:05 pm) Available at:
https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_1.pdf
11
XAVIER SUEBA, G LOBAL REGIME OF ENFORCEMENT OF I NTELLECTUAL P ROPERTY.(2017)
12
Id.

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facilitate a global trade mechanism.13 However, the focus from NAFTA shifted instantly due to
introduction of the trade related intellectual property chapter in the Uruguay Round of
negotiations within the framework of multilateral Trade Agreement, General Agreement of
Trade and Tariffs (“GATT”). This move of the West was described as revolutionary and game-
changing.14 The Uruguay Round led to the creation of a multilateral agreement named The
Agreement on Trade Related Aspects of Intellectual Property, popularly known as „TRIPS‟. In
addition, the World Trade Organization was also created in the Marrakesh round. Members of
WTO were mandatorily members of TRIPS - there are a total of 164 member nations.

TRIPS is considered to be the holy grail of international IPR regime and incorporates within its
ambit the Paris Convention, Berne Convention as well as the Madrid Agreement. Furthermore,
TRIPS lays down in elaborate detail the legal obligations, governance standards and enforcement
mechanisms which are to be adopted by nations in their domestic laws in order to ensure that the
domestic IP regime of each member nation is in consonance with the international rules and
standards.15 The objective of TRIPS is to lay down effective enforcement measures in order to
prevent formation of trade barriers as well as infringement of IPRs. 16 In addition, the provisions
of TRIPS ensures that appropriate remedies are available in order to deal with infringement of
IPRs in cross border trade transactions and encourages developed countries to provide
developing countries and LDCs financial and technical support to implement the provisions of
TRIPS.17 It consists of seven parts and lays down minimum standards of IP protection which all
member nations must obtain. Member nations are free to impose higher standards of protection
as well.18 Part I of the Agreement lays down the basic principles regarding the scope of
obligations as well as the objectives of the Agreement. Part II of the Agreement states that the
member nations must comply with obligations under TRIPS as well as under the Paris and Berne
Conventions.

13
Joel Reidenberg, Trade, TRIPS & NAFTA, 4(1), Fordham Intellectual Property, Media and Entertainment Law
Journal, 281, 282-286.(1993)
14
Id.
15
Ryan Cardwell & Pascal Ghazalian, The Effects of the TRIPS Agreement on International Protection of
Intellectual Property Rights, International Trade Journal, 22,19-24.(2012)
16
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994)
17
International Treaties and Conventions on Intellectual Property,World Intellectual Property Organization.
(Accessed on January 15, 2020,5:30 pm) Available at: https://www.wipo.int/export/sites/www/about-
ip/en/iprm/pdf/ch5.pdf
18
Id.

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The TRIPS Council is a part of WTO and looks after the functioning of member nations vis-a-
vis the TRIPS Agreement. Additionally, WTO and WIPO work together to provide legal and
technical support to the member nations. TRIPS is important since it widens the scope of
intellectual property to not only include copyright, patent and trademark but also industrial
designs, geographical indications and undisclosed information. TRIPS is widely appreciated for
its detailed provisions dealing with enforcement obligations and dispute resolution
mechanisms.19

Apart from TRIPS, there are also other treaties and conventions which form a part of the
international IP regime such as the Patent Law Treaty20 which lays down formal procedures
regarding filing of national and regional patent applications and patent. Similarly, the Trademark
Law Treaty21 prescribes administrative requirements to be fulfilled for national application and
protection of marks. The Nice Agreement22 classifies goods and services for registration of mark
and the Vienna Agreement23 classifies marks on the basis of their figurative elements. The
Hague Agreement24 deals with the international registration of industrial designs whereas the
Rome Convention25 is considered to be very important while dealing with rights of performers
and producers.

Thus, the international regime of IPR consists of a very complex structure. The TRIPS
Agreement is the heart of the international IPR regime since it lays down the general outline
governing the framework of IPRs and the other conventions and treaties have evolved from
TRIPS and the other foundational agreements in order to lay down specific provisions of
enforcement, protection and governance. The member nations may not necessarily follow the
conditions laid down in such specific Agreements. Therefore, before entering into Trade

19
John M. Curtis, Intellectual Property Rights and International Trade: An Overview, CIGI Papers, 12, 1-24.(2012)
20
Patent Law Treaty (PLT), and Regulations under the Patent Law Treaty, WIPO Pub. No. 258.
21
Trademark Law Treaty and Regulations, WIPO Pub. No. 225, 1994.
22
Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the
Registration of Marks 1957, as amended up to September 1979, WIPO Pub. No. 292.
23
Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks 1973, as
amended up to October 1985, WIPO Pub. No. 266.
24
The Hague Agreement Concerning the International Deposit of Industrial Designs; Regulations; Administrative
Instructions, WIPO Pub. No. 269.
25
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations (Rome Convention), WIPO Pub. No. 328, 1961.

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Agreements, it is important to consider whether the opposite party is TRIPS compliant and has
adequate IPR protection mechanisms in place.

C. INTERNATIONAL TRADE AND INTELLECTUAL PROPERTY

International trade is the exchange of goods and services between countries.27 It stimulates
economic growth of the countries by increasing the rate of production and exports and also
results in better allocation of resources and increase in rate of employment.28 For example,
Russia‟s economy flourished due to its exports of minerals, oil and gas. 29 Additionally, Chile‟s
economy opened up once it aligned its domestic legislations to the WTO Agreements and
provided for border measures for enforcement of IPR regulations in the country. 30 However, it
may not be necessary for every developing country to enforce stringent intellectual property laws
for facilitating economic growth. For example, India prohibited patenting of pharmaceutical
drugs, however, the same resulted in the booming of Indian pharmaceutical industry in a
multimillion dollar sector.31 Therefore, there are various external factors which affect the
decision of the State to enforce IPR standards. According to the researcher, strain from western
countries or developed countries may also be a significant contributing factor which nudges
developing countries to enforce a stringent IP regime.

The primary link between international trade and intellectual property is the accessibility to the
global market. Let us take the example of a corporation which has invented and obtained a patent
for a new technology. When a corporation wishes to sell its invention, it has the exclusive right
to sell the same and is entitled to take action against any person infringing such right. Subject to
certain conditions, the inventor of a product has the exclusive right to commercially exploit his
product due to his patent. Since IP protection is territorial32, a patent obtained in India does not

27
Jenny Lin & William Lincoln, Intellectual property rights affect the pattern of trade, VOX CEPR Policy Portal,
Published on July 06,2018.(Accessed on January 17,2020, 7:00 pm) Available at:
https://voxeu.org/article/intellectual-property-rights-affect-pattern-trade
28
Edmund Pratt, Intellectual Property Rights and International Trade, Institute for Agriculture and Trade Policy.
(Accessed on January 17,2020, 7:15 pm) Available at:
https://www.iatp.org/sites/default/files/Intellectual_Property_Rights_and_International.htm
29
Jerome Reichman, Intellectual Property In The Twenty-First Century: Will The Developing Countries Lead Or
Follow?, 46(4) Houst Law Rev. 2009, 1116,1115–1185.
30
Id.
31
Id.
32
INTELLECTUAL P ROPERTY R IGHTS (IPR) ENFORCEMENT S TRATEGIES, Asia Pacific Economic Cooperation.
(2006)

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confer the corporation an exclusive right to sell in other countries. In order to sell in other
countries, the corporation shall have to obtain a patent in such countries and then commence
operations.

However, what if such countries do not grant patents for new technological inventions? In such a
case, the corporation will lose its competitive edge to local competitors who may make cheap
substandard copies of the technology and lure the customers by offering lucrative prices. This
results exploitation of the creator‟s rights and also gravely hampers consumer welfare. 33 It was
very common to face such problems in developing countries or LDCs where the focus was on
national production rather than international trade.34 For example, American corporations have
faced great hassles in establishing pharmaceutical units in Argentina due to the fact that the
country did not grant patents for pharmaceutical products since the local pharmaceutical
companies produced and sold copies of foreign drugs.35 Therefore, engaging in trade with
countries who lack effective IP standards may severely affect the marketability and profitability
of the product, thereby impacting the corporation‟s capacity to trade.

However, over the years, there has been a considerable shift in the attitudes of the developing
nations with respect to enforcement of IP law. One of the key reasons attributed to this is the
increase in rate of investments in inventions in such countries.36 For example, an Argentinean
pharmaceutical company invented a drug, but did not obtain a patent for it which resulted into
cheap imitations of the drug being produced. In such case, the domestic investments will be
jeopardized and shall fall rapidly. In order to protect national interests and promote new
investments by local investors, the country shall take immediate steps to prevent infringement of
the exclusive right to produce, sell and distribute such drug.37 Through the above examples, it is
evident that international trade and intellectual property are interconnected. A stringent
intellectual property law framework not only facilitates international trade but also encourages
developing countries and LDCs to increase their rate of development and foreign investment.

33
Y. K Kim et. al. , Appropriate Intellectual Property Protection And Economic Growth In Countries At Different
Levels Of Development, Research policy, 41 (2), 100, 97-110.
34
Id.
35
INTELLECTUAL P ROPERTY R IGHTS (IPR) ENFORCEMENT S TRATEGIES, Asia Pacific Economic Cooperation.
(2006)
36
Gerald J. Mossinghoff,The Importance of Intellectual Property Protection In International Trade, Boston College
International and Comparative Law Review, 7(2), 237, 235-251. (1984)
37
Supra Note No. 35.

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Another aspect which links IPRs with international trade are Trade Agreements entered into
which may contain provisions regarding minimum standard of IPR enforcement. However,
according to a study carried out by Mercedes Campi38, it was observed that a Trade Agreement
containing no IPR clauses has a stronger positive effect in increasing trade as compared to a
Trade Agreement containing IPR clauses. The author noted that the probable reason behind this
is the time and effort spent by countries on implementation of such reforms.39 It was also
observed that bilateral Trade Agreements with IPR chapters have a clear positive effect on the
trade growth of the developed countries, however, similar gains are not observed in the case of
developing countries and LDCs. 40 It is further noted that most of the Trade Agreements with IP
chapters consist of either America or an EU Member as a party to the agreement. 41

In light of the above statistics, it may be noted that the current IP regime fails to benefit the
developing countries and LDCs in a significant manner, thereby failing to achieve one of the
most important aspects of international trade, i.e. assistance and support to developing countries
to increase their economic growth42. Such cycle may result into concentration of power in the
hands of the few. In addition, in various Trade Agreements wherein a party may not have equal
bargaining power since the opposite party is too powerful or has a very strong hold in
international trade. In this case, the party may be strained to accept the IP clauses even though
they do not wish to. Therefore, the Trade Agreements with IP chapters may result in loss of
flexibility to developing countries and LDCs to implement IPR standards best suited to their
needs and domestic challenges. Thus, Trade Agreements with IP Chapters may be criticized for
pushing international interests without taking into consideration the levels of development of a
country as well as its capacity to incorporate such systems43.

On the other hand, the researcher believes that it is very important for a Trade Agreement to have
IP Chapters due to the fact that various disputes may arise between the party with regards to IP
enforcement and in such a case the Trade Agreement must provide the enforcement and dispute
38
Mercedes Campi & Marco Duenas, Intellectual Property Rights, Trade Agreements, and International Trade,
American Economic Review, 69, 110, 106 – 122. (2017)
39
Id.
40
Id.
41
Id.
42
L. Baccini & M. Elsig , The Design Of International Trade Agreements: Introducing A New Dataset, The Review
of International Organizations, 9 (3), 355, 353-375. (2014)
43
Mercedes Campi & Marco Duenas, Intellectual Property Rights, Trade Agreements, and International Trade,
American Economic Review, 73, 110, 106 – 122. (2017)

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resolution procedure to the parties. Incorporation of IP clauses IP Trade Agreements is important

to protect national commercial interests, prevent infringement of IPR and strengthen
international trade practices. Critics have also opined that the IPR regime must be eliminated
from international trade scenario since it acts as a trade barrier rather than trade facilitator. 44 A
contrary argument put forth is that a weak IP regime may act as a non-tariff barrier and cause
distortions to trade.45 It cannot be denied that promotion of technology, innovation and
knowledge sharing has become the base of modern trade agreements, therefore incorporation of
an elaborate IP framework is a must. However, the IP clauses must be drafted in such a way that
parties do not lose the flexibility to incorporate the IP regime under domestic law as per their
needs. The next section of this Report shall deal with the importance and role of IP in trade in
order to resolve the key issue, i.e. whether IP regime needs to be modified in order to deal with
the modern aspects of international trade.

D. IMPORTANCE OF INTELLECTUAL PROPERTY IN TRADE

The researcher shall deal with this section in a twofold manner, firstly highlighting the
importance of IPR in global trade and secondly, dealing with the role of IPR in shaping
international trade and the way forward.

According to a paper published by the Centre for International Governance Innovation46, the
trade related aspect of IPR must be measured in terms of multilateral initiatives such as the Doha
Declaration on the TRIPS Agreement and Public Health, 2003 which allowed generic
pharmaceutical companies to amend the patent provisions under TRIPS by obtaining compulsory
licenses to sell such medicines Although, the Declaration dealt with the public health crisis, it
opened up the pharmaceutical market greatly.47 Another example to IPRs facilitating trade is the
incorporation of TRIPS plus provisions to extend the GI coverage and strengthen policies
pertaining to patent applications.48

44
Dilyara Makhmutova, Impact of International Trade on Economic Growth, International Journal of Scientific
Study, 5(6),1,1-10.(2017)
45
Id.
46
John M. Curtis, Intellectual Property Rights and International Trade: An Overview, CIGI Papers, 21, 1-24.(2012)
47
Micheal Waterhaus, How Do Intellectual Property Law and International Trade Agreements Affect Access to
Antiretroviral Therapy?, PLoS Med 3(8), 23, 15-24.(2009)
48
Ian Fergusson, Intellectual Property and International Trade, Congressional Law Review, 15, 6-43. (2011)

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It has been observed that IPRs such as trademarks and patents have a commercial character,
however, in the international scenario, the IPR initiatives are less directly trade related and focus
more on movement of IPR.49 According to the researcher, this hypothesis may prove right in the
context of early 90s or 2000s wherein primarily focus was on selling goods and services,
however, in the modern day and age, the worth of IPRs has increased greatly and rights such as
patents and designs are being transferred in cross border transactions on a larger scale resulting
in rapid economic growth and facilitation of international trade.

IPRs deal with advancement in innovation and technology, knowledge sharing as well as
marketability and aesthetics of a product. Thus, IPR has a positive impact on trade by driving
innovation and economic growth.50 On the other hand, weak IPR regime derails the economic
growth of multinational corporations, thereby hindering the process of international trade and
hampering consumer interests. Nowadays, IPRs have become the main value component of
many trade transactions.51 Countries are entering into billion dollar deals for transfer of
technology or licensing of software.52 Research shows that countries have become increasingly
knowledge intensive resulting in knowledge intensive components representing one half of the
global trade flow. 53 According to Nigel Cory54, even though developed countries dominate
the knowledge sharing sector, the developing countries are growing rapidly as well.

It is also noteworthy that a robust IPR regime acts as a facilitator for innovation and technology.
Western countries with stringent IPR framework have advanced research and development
facilities and high rate of innovation and technology. This not only boosts a country‟s foreign
direct investments but also aids in strengthening the process of exports of goods and services.
Knowledge creation and commercial assets in the form of trademark, GI and design contribute
towards development and economic gains. There is a strong correlation between global trade

49
Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property, The International
Lawyer, 21(3), 635, 627-638.(1987)
50
Gian Carlo Moschini, Intellectual Property Rights and the World Trade Organization: Retrospect and Prospects,
Iowa State University Press, 22, 1-31. (2004)
51
Id.
52
Dr. Peter Drahos, The Universality Of Intellectual Property Rights: Origins And Development, World Intellectual
Property Organisation. (Accessed on January 10,2020, 12:05 pm) Available at:
https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_1.pdf
53
Nigel Cory, The Way Forward for Intellectual Property Internationally,Information Technology and Innovation
Foundation, Published on April 25, 2019. (Accessed on January 17, 2020, 10:30 pm) Available at:
https://itif.org/publications/2019/04/25/way-forward-intellectual-property-internationally
54
Id.

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regime and IPRs.55 American and Japanese companies have a tendency to not enter into business
transactions such as joint ventures with countries having a weak IPR framework. 56 On one hand,
weak IPR regime reduces flow of commercial activities despite country‟s internal economy
working smoothly whereas on the other hand, a strong IPR framework leads to rapid economic
growth through transfer of technology and investment as well as welfare gains to consumers.57

The IPR regime also aids in development of new product right from the inception stage to the
stage of launching new or improved products to the market.58 The IP regime helps create a
competitive environment thereby facilitating innovation in technology and product development,
stimulating the market and maximizing productivity of the trade and industry sector. The
research paper published by WIPO Consultant Christopher Kalanje59, elaborately deals with each
stage of product development and the manner of IPR protection that is sought in each stage. For
example, at the stage of conception of ideas, enterprises prefer to file for a trade secret rather
than a patent and also prefer to patent documentation in the research and development stage in
order to protect all material information. The use of other IP tools such as trademarks and
industrial designs aid in reaching out to the consumers and strengthening the brand of the
inventor.60 From a financial and business perspective, IPR boosts the FDI framework and also
aids in formation of strategic alliances and partnerships which in turn facilitates trade between
leading multinational corporations or countries, thereby increasing international trade.
61
Additionally, Mossinghoff‟s62 paper also enlists importance of trademarks and patents in
determining technical and market information, protecting domestic markets and expanding the
scope of trade. Thus, it is evident that IPRs have greatly contributed in facilitating international
trade and have become a key component of the global trade scenario.

E. ANALYSIS AND SUGGESTIONS

55
Supra Note No. 40.
56
Supra Note No. 53.
57
Id.
58
Christopher M. Kalanje, Role of Intellectual Property in Innovation and New Product Development, World
Intellectual Property Organization, 3, 1-10.(2005)
59
Christopher M. Kalanje, Role of Intellectual Property in Innovation and New Product Development, World
Intellectual Property Organization, 5, 1-10.(2005)
60
Id.
61
Gerald J. Mossinghoff,The Importance of Intellectual Property Protection In International Trade, Boston College
International and Comparative Law Review, 7(2), 243, 235-251. (1984)
62
Id.

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There is abundant data which highlights the importance of IPRs such as trademarks and patents
in strengthening the roots of international trade, however, fails to elaborately deal with the role
of copyright in the international trade scenario. For example, Mossinghoff‟s paper63 dealing with
the importance of IPRs only examines the trade related aspect of patents and trademarks and fails
to even mention the scope of copyright in the international sense.

Additionally, the researcher strongly agrees with the fact that the IP regime has failed to adapt
itself with the needs of the developing countries and the LDCs. Since the beginning of the
Uruguay Round, it is evident that the Western countries have pushed the IPR framework to suit
their needs and exploiting resources to advance their economic goals. Although, there have
always been talks of providing developing countries and LDCs technical and commercial support
to flourish in the international trade market, there are very few countries such as India and South
Africa which have independently integrated stringent IP systems and made a place in the
international trade scenario64. There are various countries which have failed to set up IPR
standards in accordance with their needs due to international strains and pressure to form and
maintain good international commercial relations with global trade superpowers. Another
example of setting up IPR policies in accordance with domestic trade needs is that of China 65
which primarily focused on protection of local inventors and investments by amending its IPR
regime and introducing enforcement and governance standards.

Scholars have also opined that discussion on the international IP regime has become outdated
and that there are various new issues such as regulatory alignment and trade-related climate
issues.66 However, in light of the issues between China and United States wherein the American
President has accused China of intellectual property theft and forced technology transfers, a
strong need to further evaluate and assess current IPR infringement governance provisions is
felt.67 Further, the selling of pirated copies and counterfeit products is still an ongoing trend in
developing countries and LDCs particularly in the Asian region, thereby highlighting lapses in
63
Gerald J. Mossinghoff,The Importance of Intellectual Property Protection In International Trade, Boston College
International and Comparative Law Review, 7(2), 245, 235-251. (1984)
64
Id.
65
Supra Note No. 27.
66
John M. Curtis, Intellectual Property Rights and International Trade: An Overview, CIGI Papers, 12, 1-24.(2012)
67
Shawn Donnan & Jenny Leonard, U.S Accuses China Of Continuing IP Theft, Bloomberg. Published on
November 11, 2018, 4:20 am. (Accessed on January 14, 2020, 6:30 pm) Available at:
https://www.bloomberg.com/news/articles/2018-11-20/u-s-accuses-china-of-continuing-ip-theft-as-trump-xi-talks-
near

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enforcing the Anti Counterfeiting Trade Agreement amongst many other international
agreements. According to the researcher, the trade hindrances are not caused by IPR regimes but
the lack of strong enforcement thereof due to the barriers faced by the countries in the
implementation stage. Additionally, it may also be noted that the IPR regime shall continue to
evolve with the development of new kinds of rights and obligations, in such a scenario, it shall
be incorrect to say that discussions on IPR are outdated. The researcher puts forth three key
suggestions to strengthen the role of IPR in international trade:

1. The developing countries and LDCs must attempt to balance their national interests
with the international trading scenario while entering into Trade Agreements and
must enforce flexible IPR standards which can adapt in accordance with the nation‟s
changing needs and promote local inventions and investments rather than solely rely
on western countries for technical support.
2. International Organizations such as WTO and WIPO must work together to reduce
the hassles faced by countries in the implementation phase and assist countries in
reviewing the legislations and make recommendations accordingly.
3. An agreement introducing strong investigative mechanisms and harsh sanctions
against piracy, counterfeiting and intellectual property theft must be introduced to
protect the international trade and IP regime.

F. CONCLUSION

Intellectual Property Rights play a complex role in governing the framework of international
trade. Although, some studies show that Trade Agreements with no IP clauses have the same
effect on bilateral trade as Agreements with IP clauses, this Report submits otherwise due to
the fact that IP plays a very important role in facilitation of trade and investment. In fact,
IPRs have formed an essential part of the product development and marketing process.
However, there is a need to revamp TRIPS and other Agreements in order to make the
implementation process easier and make the provisions flexible with the needs of the
developing countries in order to facilitate their growth. It shall be very interesting to observe
evolution of the IPR regime with the changing global trade scenario.

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BIBLIOGRAPHY

Web Articles

Dr. Peter Drahos, The Universality Of Intellectual Property Rights: Origins And Development,
World Intellectual Property Organisation. (Accessed on January 10,2020, 12:05 pm)
Available at:
https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_1.
pdf................................................................................................................................................ 9
Nigel Cory, The Way Forward for Intellectual Property Internationally,Information Technology
and Innovation Foundation, Published on April 25, 2019. (Accessed on January 17, 2020,
10:30 pm) Available at: https://itif.org/publications/2019/04/25/way-forward-intellectual-
property-internationally............................................................................................................... 9
Shawn Donnan & Jenny Leonard, U.S Accuses China Of Continuing IP Theft, Bloomberg.
Published on November 11, 2018, 4:20 am. (Accessed on January 14, 2020, 6:30 pm)
Available at: https://www.bloomberg.com/news/articles/2018-11-20/u-s-accuses-china-of-
continuing-ip-theft-as-trump-xi-talks-near................................................................................ 11

Books

Xavier Sueba, Global Regime of Enforcement of Intellectual Property.(2017) ............................. 2

Other Authorities

Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33
I.L.M. 1197 (1994) ...................................................................................................................... 3
Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, revised
at Paris July 24, 1971 25 U.S.T. 1341 ......................................................................................... 2
Madrid Agreement Concerning the International Registration of Marks, WIPO Pub. No. 204,
2004. ............................................................................................................................................ 2

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Nice Agreement Concerning the International Classification of Goods and Services for the
Purposes of the Registration of Marks 1957, as amended up to September 1979, WIPO Pub.
No. 292 ........................................................................................................................................ 4
Paris Convention for the Protection of Industrial Property, as last revised at the Stockholm
Revision Conference, Mar. 20, 1883, 21 U.S.T. 1583 ................................................................ 2
Patent Law Treaty (PLT), and Regulations under the Patent Law Treaty, WIPO Pub. No. 258 ... 4
Trademark Law Treaty and Regulations, WIPO Pub. No. 225, 1994. ........................................... 4

International Cases

JT International SA V. Commonwealth Of Australia [2012] HCA 43........................................... 1

Research Papers

Christopher M. Kalanje, Role of Intellectual Property in Innovation and New Product

Development, World Intellectual Property Organization, 5, 1-10.(2005) ................................. 10
Gerald J. Mossinghoff,The Importance of Intellectual Property Protection In International
Trade, Boston College International and Comparative Law Review, 7(2), 245, 235-251. (1984)
................................................................................................................................................... 11
Gian Carlo Moschini, Intellectual Property Rights and the World Trade Organization:
Retrospect and Prospects, Iowa State University Press, 22, 1-31. (2004) .................................. 9
Ian Fergusson, Intellectual Property and International Trade, Congressional Law Review, 15, 6-
43. (2011) .................................................................................................................................... 8
Joel Reidenberg, Trade, TRIPS & NAFTA, 4(1), Fordham Intellectual Property, Media and
Entertainment Law Journal, 281, 282-286.(1993) ...................................................................... 3
John M. Curtis, Intellectual Property Rights and International Trade: An Overview, CIGI
Papers, 12, 1-24.(2012) ............................................................................................................. 11
Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property,
The International Lawyer, 21(3), 635, 627-638.(1987) .............................................................. 9
Laurence Heffler, Regime Shifting in the International Intellectual Property System,
Symposium,38, 38-44.(2009) ...................................................................................................... 1
Mercedes Campi & Marco Duenas, Intellectual Property Rights, Trade Agreements, and
International Trade, American Economic Review, 69, 110, 106 – 122. (2017) ........................ 7

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Micheal Waterhaus, How Do Intellectual Property Law and International Trade Agreements
Affect Access to Antiretroviral Therapy?, PLoS Med 3(8), 23, 15-24.(2009............................. 8
Ryan Cardwell & Pascal Ghazalian, The Effects of the TRIPS Agreement on International
Protection of Intellectual Property Rights, International Trade Journal, 21,19-24.(2012) ......... 1
Y. K Kim et. al. , Appropriate Intellectual Property Protection And Economic Growth In
Countries At Different Levels Of Development, Research policy, 41 (2), 100, 97-110. ............. 6

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