Article Title

The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights?


Lina M. Monten


This comment examines the inconsistency between continued international efforts to ensure uniform protection of intellectual property rights, most recently via the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), on the one hand; and the use of unilateral measures by the United States, specifically Section 301 of the Trade Act, to ensure greater protection for United States' intellectual property rights, on the other. This comment first discusses the historical development of international protection of intellectual property rights, specifically focusing on the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Property, the World Intellectual Property Organization, and TRIPS. It then outlines the development of Section 301, argues that the effects of its current use are inconsistent with WTO obligations, and shows that despite the inconsistency and fierce opposition from trading partners the United States continues both to use and to threaten to use Section 301 measures against countries that are deemed to provide inadequate protection for U.S. intellectual property rights. Via the specific example of gray market goods this comment demonstrates that countries would rather abandon their policies and agree to unilaterally negotiate with the United States - even when their current policies might very well be in perfect compliance with TRIPS - than risk being black-listed by the United States via Section 301 measures. This comment concludes that the measures employed by the United States are detrimental to the long term goals of international protection of intellectual property and, unless altered, will continue to create animosity from those trading partners who do not engage in such practices, as well as from those that are forced into such negotiations. Hence, as the most powerful member of the WTO, in the best interest of the world trading community as whole, the United States would be wise to reconsider its use of Section 301.