TRIPs art. 7 and 8, FTAs and Trademarks

Abstract:     
The range and effects of art. 7 and 8 of Trips are not clear to this moment. According to the Appellate Body of WTO, in the Canada Generics case, those Articles still await appropriate interpretation.

This author's contention is that the ensemble of such provisions may be held to function on a quasi-constitutional manner towards the TRIPs text. From art. 7, it can be destiled a objective standard of balancing of interests, somewhat akin to the positive value of balancing by itself, that could be discerned through the reasoning of the US Supreme Court in Bonito Boats,Inc. V. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), whereby the balanced body of Federal IP law would restrain disturbing state action.

From art. 8, it can be read a list of public interest values (health and development, inter alia), which would overweight competing interests in the interpretation and limitations posed to national laws or international agreements within the purview of TRIPs. This is also a balancing rule.

From the aggregate art. 7 and 8 it also can be seen a non discrimination standard, in harmony with the prior GATT case law that interpreted art. XX (b) of GATT 1947 as applicable to IPRs. The elaboration of such understanding as an equal protection-like quasi-constitutional device is a matter for further study.

Those standards should be applied to the sum of post-TRIPs FTA provisions dealing with IPR matters. This reading could weight the legitimacy of negotiation, if divertive from the balanced approach that TRIPs can be a model; the eventual contestability of over-the-balance FTAs provisions as compared to TRIPs model; and the eventual bias that unbalanced FTAs may cause towards future multilateral negotiations. A second set of issues is the effects that unbalanced FTAs may have in the internal law of the major negotiating agents (USA and EU), especially through the MFN clauses of the WTO ambiance; and the intrinsic inequality of the agreements where the major party has in fact lesser Intellectual Property obligations than the other party.

This Paper submitted was to the Workshop on IP, FTAs, and Sustainable Development held at the American University Washington College of Law on 27 - 28 February 2006.

Keywords: Intellectual Property, TRIPs, FTA, International Law

JEL Classifications: F10, K33

Working Paper Series