The TRIPS Enforcement Dispute
87 Pages Posted: 14 Sep 2010 Last revised: 7 Dec 2014
Date Written: September 13, 2010
2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.
After more than a decade of implementation, these provisions finally became the subject of a dispute before the WTO Dispute Settlement Body (“DSB”). In January 2009, the DSB released an important panel report on the U.S.-China dispute over the protection and enforcement of intellectual property rights under the TRIPS Agreement. In this report, a WTO panel, for the first time, focused primarily on the interpretation and implementation of the TRIPS enforcement provisions. The release of the report is particularly timely in light of the growing demands from both developed and less developed countries for greater reform of the international intellectual property regime.
This Article provides an in-depth and comprehensive analysis of this panel report. It discusses the key arguments made by the China and the United States, the WTO panel’s major findings, and the various remedial actions China has undertaken in response to the panel report. The article also discusses the many lessons the report has provided to policymakers, commentators, and intellectual property rights holders. Advancing a novel argument that the outcome of the present dispute reflects the common mistakes made by foreign businesses in China, it explains why this panel report is unlikely to result in dramatic improvements in intellectual property protection and enforcement in China. The article concludes with some concrete suggestions on how to revamp the United States’ intellectual property enforcement strategy vis-à-vis China.
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