Intellectual Property (IP) protection is crucial in stimulating and encouraging international trade. International trade refers to the economic transactions, i.e., the exchange of capital, goods, and services, across international borders or geographical territories because of a dire want or need of such capital, goods, or services. With the increase in the exchange of capital, goods, and services across the globe, there has been an emergence of a virtual global market comprising almost all nations and surviving on a robust trade system and friendly trade relations between the nations. For reasons obvious and known to all, brands and businesses stay pretty eager to tap into this market, as a result of which, it has become exceedingly competitive. Access to new markets has become more convenient and easier than it used to be in the past. For brands and businesses to survive in this cutthroat environment, it becomes essential to have an extensively strong international and domestic regime for the utmost protection of all types of IP.
Giving due attention to IP protection while trading comes with many benefits. It ensures that you maintain exclusivity for your offerings, i.e., products or services, and prevents others from imitating them. It also helps you avoid violating or infringing others’ Intellectual Property Rights (IPRs).
Considering an Example to Have a Better Understanding
A European company specializing in selling advanced knitting machinery to manufacturers in China came to know that a local manufacturer in the nation was selling a competing product in the Chinese markets, not under the company’s registered European trademark. The exterior coverings, colors, and dimensions of the product were all the same. Furthermore, even the website pictures and brochures of the original product in question were imitated by the local manufacturer in his competing product. What’s further surprising is that the specifications of the original product were also given with the local product even though it did not fulfill those specifications. Consequently, the customers in the market were terribly misled. However, the European company didn’t own any registered patents in China. It could only depend on Copyright Infringement claims on their brochure’s artwork and violation of the Anti‐Unfair Competition Law concerning the false claims on the brochure. The company then hired a local law firm in China to send a warning letter to the competitor, i.e., the local manufacturer, which made the competitor change the pictures and some content of the brochure. The company had no legal basis to force the competitor to change the appearance of their local product. Hence, it would be wise enough to admit that the utmost importance of IP can’t be undermined when it comes to trade.
Suggestions and Final Thoughts
After discussing the different aspects of IP and trade, it is evident that there are still a few gaps between the two concepts. The international regime could be modified using multiple ways to ensure better cohesion between IP and international trade. Some of them are as follows:
- Implementation of a Rigid Enforcement System– The regime that has been set up by the TRIPS Agreement is, unfortunately, insufficient to face the present-day challenges concerning trade and IP. One of the major drawbacks of the Agreement is that it doesn’t establish a strong and robust international enforcement procedure. The member states are left free to determine a suitable method or way of implementing the provisions specified in the Agreement within their local practice and system. Therefore, to some extent, the Agreement becomes a toothless mechanism by not placing any strong obligations upon its member states.
A combination of these factors has made sure that wherever trade is involved, the enforcement of IP-related norms and standards has primarily taken place at the national level through the national laws and regulations put in place by various nations and not at the international level. Hence, we can say that the need of the hour lies in developing an adequate international mechanism for the enforcement of the rights and obligations of the parties.
- Global Consensus on the Importance of IP & International Trade– While the TRIPS Agreement is the starting point, there is a dire need for more consensus and open debate, which would create a better understanding of the issues and further lead to efficient and workable solutions. Hence, with the help of a few improvisations and improvements, the law dealing with IP and international trade could lead to better protection of the exclusive rights of inventors and innovators.