The Global Impact of TRIPS on Trademarks and Intellectual Property Rights

Before 1995, the global intellectual property landscape was a patchwork of inconsistent national laws. A brand registered in one country had little to no guaranteed protection in another. Countries set their own rules, enforced them on their own terms, and there was no binding international mechanism to resolve disputes when rights were violated. That changed fundamentally with the Agreement on Trade-Related Aspects of Intellectual Property Rights – universally known as TRIPS. Adopted in 1994 as part of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade (GATT), and entering into force on 1 January 1995, TRIPS is to this day the most comprehensive multilateral agreement on intellectual property ever concluded.

What is the TRIPS Agreement? 🔗

TRIPS is Annex 1C of the Marrakesh Agreement that established the World Trade Organization (WTO), signed on 15 April 1994. In simple terms, it brought intellectual property rights (IPRs) – previously governed by fragmented conventions like the Paris Convention and the Berne Convention – squarely into the global trading system. For the first time, a powerful enforcement mechanism backed by trade sanctions was attached to IP obligations. Countries that failed to meet TRIPS standards could now face formal dispute settlement proceedings and retaliatory trade measures from affected WTO members.

The agreement covers a wide spectrum of IP: copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, and protection of undisclosed information including trade secrets. For each category, TRIPS sets minimum standards of protection – the floor below which no WTO member may fall. Members are free to go beyond these minimums in their domestic laws, but they cannot fall short of them.

The foundational principles: national treatment and most-favoured-nation 🔗

Two principles sit at the very core of TRIPS, borrowed from the broader WTO trading architecture and applied specifically to intellectual property.

National treatment 🔗

National treatment under TRIPS (Article 3) requires every WTO member to extend the same level of IP protection to nationals of other member countries as it gives to its own citizens. This principle existed in pre-TRIPS conventions like the Paris Convention, but TRIPS expanded its scope significantly. It now covers not just the availability of IP rights but also their acquisition, scope, maintenance, enforcement, and use. In practical terms, an Indian company seeking trademark registration in France cannot be treated less favourably than a French domestic applicant, and vice versa.

Most-favoured-nation treatment 🔗

The most-favoured-nation (MFN) principle under Article 4 goes a step further. If a WTO member grants any advantage, favour, privilege, or immunity to the nationals of any one country, it must immediately and unconditionally extend the same benefit to the nationals of all other WTO members. This prevents countries from cutting bilateral deals that discriminate between trading partners. Together, national treatment and MFN work to eliminate two distinct forms of discrimination in the IP space – between foreign and domestic right-holders, and between nationals of different foreign countries.

TRIPS and trademark protection 🔗

For trademarks specifically, TRIPS brought a degree of harmonization that previous international frameworks had not achieved. Article 15 of TRIPS defines what can constitute a trademark broadly: any sign, or combination of signs, capable of distinguishing the goods or services of one undertaking from those of others. This includes words, personal names, letters, numerals, figurative elements, and combinations of colours. Members may also allow registration of signs not inherently distinctive if they have acquired distinctiveness through use.

Key trademark provisions under TRIPS 🔗

Beyond the definition, TRIPS sets out several concrete obligations for member states on trademarks. The owner of a registered trademark must have the exclusive right to prevent third parties from using identical or similar signs for identical or similar goods or services where such use would create a likelihood of confusion. The minimum term of protection is seven years per registration, renewable indefinitely. On well-known trademarks, TRIPS supplements the Paris Convention by extending protection even to marks not registered in a particular country, if that mark is well-known there. Compulsory licensing of trademarks is expressly prohibited – a particularly important protection for brand owners operating in markets where such licensing was previously possible under domestic law. Equally significant, trademark owners have the right to assign their mark with or without transferring the underlying business, giving brands commercial flexibility in mergers, acquisitions, and licensing arrangements.

Enforcement: the real innovation of TRIPS 🔗

What made TRIPS genuinely transformative was not just the substantive standards it set but the mandatory enforcement framework it introduced. Earlier international IP conventions dealt mainly with defining and granting rights; they said little about how those rights should actually be enforced. TRIPS changed this entirely. Part III of the agreement requires member countries to make available civil, administrative, and criminal procedures for enforcing IP rights. For willful trademark counterfeiting on a commercial scale, members must provide criminal penalties including imprisonment and monetary fines, along with the seizure, forfeiture, and destruction of counterfeit goods and the equipment used to produce them. Border measures are also required – customs authorities must have the power to suspend the release of goods suspected of trademark infringement. This significantly raised the costs of counterfeiting by moving enforcement from a passive to an active, state-backed system.

Integrating IP into global trade: why TRIPS was a watershed 🔗

The WTO’s TRIPS Agreement introduced IP rules into the multilateral trading system for the first time. Before TRIPS, IP disputes between countries had no binding multilateral resolution mechanism. After TRIPS, non-compliance opened a country to the WTO’s Dispute Settlement Body – a system with automatic panel establishment and the power to authorize retaliatory commercial measures across any sector of trade, not just IP. This linkage between IP obligations and trade consequences gave TRIPS teeth that no prior IP agreement had possessed. Countries could no longer simply ignore international IP norms without economic cost.

TRIPS also built on and incorporated the substantive obligations of two major pre-existing WIPO conventions – the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. The Agreement required compliance with the main substantive provisions of these conventions as a baseline, then added significant new obligations in areas where those conventions were silent or insufficient. TRIPS is therefore sometimes described as a “WIPO-plus” agreement, raising the global floor of IP protection substantially above what pre-existing conventions had required.

TRIPS and India: alignment, adaptation, and the ongoing tension 🔗

India was among the most vocal opponents during the TRIPS negotiations, concerned that mandatory IP standards would compromise policy space in public health, agriculture, and technology development. Yet as a founding WTO member, India was bound by TRIPS from 1995. Developing countries were given a transition period – India had until 2005 to fully align its patent law. This time was used strategically. India amended its Trade Marks Act in 1999, strengthening protection for well-known marks, service marks, and collective marks in line with TRIPS obligations. The Patents Act was amended in 2005 to comply with product patent requirements, with the famous Section 3(d) inserted as a safeguard against evergreening of pharmaceutical patents.

India has also leveraged TRIPS flexibilities actively. The Indian government successfully challenged a US patent on the wound-healing properties of turmeric at the USPTO, securing its revocation on the grounds of prior art rooted in traditional knowledge – a clear demonstration that TRIPS compliance does not prevent countries from defending indigenous innovation. Similarly, a European patent on a neem-based fungicide was revoked after India’s challenge. On the pharmaceutical front, India and South Africa jointly proposed a TRIPS waiver during the COVID-19 pandemic to enable broader production of vaccines, reflecting the persistent tension between IP protection and public health access that TRIPS has never fully resolved.

For trademarks specifically, the enhanced protection required by TRIPS – particularly stronger protection for well-known marks and more robust border enforcement – has significantly raised barriers against the manufacture and sale of counterfeit products in India. Indian courts have been proactive in this space, granting interim injunctions and awarding damages in trademark infringement cases at a rate that would have been unusual before TRIPS-era reforms.

Balancing rights and public interest: the TRIPS objectives 🔗

TRIPS is not simply a vehicle for maximising IP rights. Article 7 of TRIPS states that the protection and enforcement of IP rights should contribute to the promotion of technological innovation and the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge, in a manner conducive to social and economic welfare. Article 8 explicitly recognises the right of members to adopt measures for public health and other public interest reasons, provided these measures are consistent with TRIPS. The 2001 Doha Declaration reinforced this by confirming that TRIPS should not prevent states from dealing with public health crises and that members have the right to grant compulsory licences for medicines on grounds they determine themselves.

This built-in tension – strong rights for IP holders on one side, flexibilities and public interest carve-outs on the other – is not a flaw in TRIPS design but a deliberate structural feature. How countries navigate this balance, and whether developed-country pressure through bilateral “TRIPS-plus” agreements erodes the flexibilities TRIPS intended, remains one of the central debates in international IP law today.

Criticism and ongoing debates 🔗

TRIPS has attracted sustained criticism since its inception, particularly from academics and civil society in developing countries. The core critique is that TRIPS essentially exported the dominant IP regime of the United States and Europe onto the rest of the world, with standards that mirror those in industrialised countries at the time of negotiation. Nobel laureate Joseph Stiglitz and others have argued that these standards do not serve the interests of developing nations, particularly in sectors like pharmaceuticals, seeds, and software. World Bank assessments have indicated that TRIPS has not demonstrably accelerated investment flows to low-income countries, though there may be positive effects for middle-income economies. Research on India does show, however, that TRIPS-era reforms had a positive effect on research and development expenditure by Indian pharmaceutical firms – suggesting the picture is more nuanced than either critics or proponents often acknowledge.

What do you think? TRIPS set a global minimum standard for trademark and IP protection, but it also significantly constrained the freedom of developing countries to design their own IP systems – does a one-size-fits-all international framework truly serve both innovation and public interest equally? And given India’s experience in challenging patents on turmeric and neem, how effective do you think the TRIPS flexibility provisions are in practice for protecting traditional knowledge from commercial appropriation?

References

1. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
2. https://www.wipo.int/wipolex/en/treaties/details/231
3. https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm
4. https://www.wto.org/english/tratop_e/trips_e/trips_notif4_art4d_e.htm
5. https://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm
6. https://www.patentek.com/trips-agreement-table-of-contents/
7. https://aroojlaw.com/kb/the-trips-agreement-and-its-impact-on-intellectual-property-laws-in-india/
8. https://unctad.org/system/files/official-document/ditctncd20083_en.pdf