Intellectual Property Rights in International Trade Dispute Resolution: Enforcement

Author: Siddharth Bhagwan Pariani, Symbiosis Law School, Pune

Enforcement of IP rights in the international trade dispute is very important in the new global economy. Because day-to-day trade among the countries across the border is going higher and higher, so concern towards intellectual property matters by the businesses, government and innovators. Yet several hurdles arise while enforcing the rights, such as different legal systems, jurisdiction, and counterfeiting and political obstacles. The treaties, such as the TRIPS Agreement, the Berne Convention, and regional arrangements like European Union's IP laws shape the global framework for the enforcement of IP. Other than international treaties, mechanisms include customs enforcement, alternative dispute resolution, and technological advancement in tracking IP violations in safeguarding IP rights in the international marketplace. In spite of the existing challenges, more international cooperation along with building capacity would be necessary to globally ensure the enforcement of IPR and fair trade in this interconnected world of the digitalized era.

Despite the challenges, more international cooperation and capacity building would be needed to ensure global enforcement of IP rights and fair trade in this very much digitized and interconnected world.

Intellectual Property, International Trade Disputes, TRIPS Agreement, Enforcement Mechanisms, Counterfeit Goods

Intellectual property rights are crucial assets for any business, government, or innovator worldwide. Issues related to the enforcement of IP rights in international trade disputes arising from globalization have become increasingly complex and confrontational. This article aims to discuss the challenges and mechanisms involved in enforcing IP rights across borders. The writing has focused on international trade laws, agreements, and institutions related to the resolution of disputes.

Role of Intellectual Property in International Trade

Intellectual Property refers to the rights afforded by law to creators, inventors, and companies connected to their intellectual products and inventions. IP rights refer to all intellectual undertakings in patents, trademarks, copyrights, and trade secrets. This new trend in the economy towards knowledge-based industries resulted in protection of IP for innovative ventures to ensure fair competition and secured growth. 

IP rights are the most valuable tool that businesses use in international trade to maintain their edge. Patents, trademarks, and copyrights protect inventions, brands, and creative works in all these industries, such as pharmaceuticals, technology, entertainment, and fashion. Without effective enforcement of IP rights, companies cannot safeguard their investments and cannot be guaranteed that they will reap the economic returns of their innovations.

Problems across borders exert all their might in the defense of IP rights. Globalization has aided businesses and creators in sophisticating the protection of their intellectual property on a global scale. Legal, political, economic, and technological problems differ from country to country which is the source of these difficulties. Some of the most prominent barriers that are encountered while enforcing intellectual property rights in international trade are as follows:

1. Different Legal Frameworks and Standards

The biggest challenge in the effective enforcement of IP rights currently is the lack of uniformity in IP laws across the whole globe. Legal systems, rules, standards, etc relating to IP differ according to the jurisdictions. Some countries’ IP laws are robust and well-developed while other countries’ IP laws are weak and under-developed. This variance and fragmentation make it difficult for the international legal framework to be friendly for IP enforcement as rights holders then find it hard to protect their creations uniformly across various markets.

For example, the protection offered by patent laws in the United States may be quite different from the protection offered in the European Union, and/or developing countries. Likewise, trademark or copyright laws may not be very developed in some countries or may be applied discretionarily. The above disparity makes it very challenging to get redress for IP infringement and most often leads to different degrees of protection across jurisdictions.

2. Counterfeiting and Piracy

This is a big concern for the rights holder as global trade in counterfeit goods and pirating of copyrighted works raises an issue. This refers to producing goods that carry a brand or logo without permission. Piracy, however, refers to using, reproducing, or distributing work under copyright, and it could involve movies, music, software, or books. These cause an immense loss of economic income to both the firms and authors since they lower the value of true products and intangible properties.

On the other hand, though the U.S. and most members of the EU have very complex systems that are effective enough in combating such malpractices, most developing nations cannot achieve controls on these issues. They are unable to enforce prohibition on importing pirated products due to weak enforcement, corruption, or lack of resources in some countries. The enforcement of IP rights also becomes more complicated by the new creation of internet platforms. Nowadays, the use of e-commerce and social media to market pirated products worldwide has complicated things further.

3. Complexity of Jurisdiction and Cross-Border Enforcement

Jurisdictional problems also exist with IP enforcement. Where the parties in intellectual property are typically from different countries, it is well nigh impossible to be clear which court or jurisdiction might have jurisdiction. National courts can't have the power to hear a case when foreign actors are involved. It also happens to be a challenge enforcing a judgment outside one's country of residence.

To top it all, some IP laws also extend territorially that makes things more complex. For instance, a corporation can manufacture counterfeit goods in another country and then export to other markets. Its execution of the rights on IP, therefore would be required to be coordinated through different borders, each having its own highly legal processes, which consumes both time and money. This coordination and harmonization lack makes it complicated, thereby making it hard to ensure consistent effective enforcement of IP rights.

4. Trade Policy and National Sovereignty

IP enforcement is one of the contentious areas in international trade, especially when national policies or sovereignty conflict with the interest of foreign IP holders. Developing countries will resist international pressures to adopt tight IP protection as they might argue that high IP standards could deny their access to affordable medicines, technology, or educational materials.

For example, perhaps some countries would permit the manufacture of generic drugs without regard to protection of patents to make life-saving drugs accessible to their populations at significantly lower prices. In other industry sectors in developing countries, the imposition of strong IP rights may be seen as inhibitive to innovation or as unreasonably restricting access to new technologies. Such conflicting national interests can pose obstacles to international efforts at cooperation on IP enforcement.

5. Technological Challenges

The advent of the internet and digital media has thrown new challenges to IP enforcement. For instance, the reproduction and distribution of copyrighted material-the music, movies, software, and books-are very simple and fast, facilitating infringement on IP rights. Again, global nature makes it very difficult as content can be uploaded and downloaded across borders without much follow-up.

E-commerce sites, social media, and peer-to-peer networks have become huge avenues of distribution for pirated goods and content. The Internet also has the characteristic of anonymity that makes it quite difficult to track the infringer, and legal regimes are very seldom prepared for the special problems arising from the infringement of IP over the Internet.

Despite these challenges, there are several international legal frameworks and institutions that can help enforce rights over IP and lead to settlement between nations. Some of these include the WTO, WIPO, and RTAs.

• World Trade Organization (WTO): The TRIPS is the most important international agreement that provides minimum standards for the protection and provision of intellectual property among member states. To this end, member states are required to provide fair protection for all kinds of intellectual property and ensure IP rights holders enjoy the effective means of enforcing their rights.

The WTO offers a mechanism for resolving a dispute regarding a trade-based IP issue in cases of non-compliance. The dispute settlement body offers a method for the adjudication of such conflicts concerning an IP as a way of resolving issues arising between member countries over the enforcement of rights.

• World Intellectual Property Organization (WIPO): WIPO is the global leader on the issues of intellectual property protection. WIPO is the institution that supports international treaties, such as the PCT, Madrid Protocol on trademarks, and the Berne Convention on copyrights. Alternative dispute resolution methods, like arbitration and mediation, are also offered to resolve disputes out of court.

• Regional Trade Agreements (RTAs): Most regional trade agreements have some provisions for IP protection. This helps to address the issues of enforcement within specific regions. For example, in the European Union, they have harmonized the laws concerning IP among its member states. This makes it easier to enforce IP rights within the EU. Similarly, the United States-Mexico-Canada Agreement has included provisions for stronger IP protection among its member countries.

• Bilateral Agreements: Apart from these multilateral frameworks, bilateral agreements are also undertaken between nations in furthering protection under IP. These usually include harmonizing domestic legislation with international requirements as well as international cooperation for checking infractions of IP.

All these, notwithstanding, there are several mechanisms enforcing IP rights in international trade. Most of these mechanisms were developed through international cooperation and agreements. All these mechanisms have managed to break the complexities involved with border IP protection and have facilitated proper lawful channels for rights holders seeking redress for violation. Among such, the following are a few mechanisms essential for enforcing IP rights in international trade:

1. World Trade Organization (WTO) and the TRIPS Agreement

Most importantly, international treaties protecting IP rights and enforcing the same are covered by the Agreement on Trade-Related Aspects of Intellectual Property Rights signed through the World Trade Organization-WTO. The TRIPS sets a minimum standard in terms of providing protections to all kinds of intellectual properties like patents, copyright, trademark, and more to an extent of requiring every WTO member country to possess adequate legal remedies to infringement on these rights.

Another feature that can be found in the TRIPS Agreement is a mechanism for the settlement of disputes, the DSB of the WTO. This offers the right to one country to claim a violation by another country for failure to meet its obligations for protection of IP under TRIPS. In this regard, the WTO's system of dispute settlement is a much-needed vehicle for enforcing IP rights at the global level within the context of international trade disputes involving IP.

2. Customs Enforcement

Customs authorities are also very vital in enforcing IP rights, especially to stop imports and exports of counterfeit products. In the TRIPS Agreement as well as other international agreements, most customs authorities are authorized to seize infringing goods violating IP rights at the border, including counterfeit goods and products infringing patents, trademarks, and copyrights.

Countries have put in place procedures under which rights holders can lodge complaints with customs authorities and demand the seizure or suspension of counterfeit goods. For instance, the EU's Customs Regulation on IP Enforcement empowers customs authorities to take preventive measures against goods that may infringe on IP rights. Most effective in preventing the entry of counterfeit goods into significant consumer markets is customs enforcement.

3. Alternative Dispute Resolution

Litigation is very time-consuming and costly with most IP holders opting to look for Alternative Dispute Resolution in settling the disputes over IP rights in international trade. ADR presents an alternative that is not only cheaper but faster compared to the traditional litigation as it has a more flexible manner of operation.

International arbitration is highly employed in the determination of IP disputes because the parties may be able to clear up the issue without necessarily going litigative through national courts. Organizations such as ICC and WIPO offer arbitration services tailored to meet the requirement of resolving IP issues and also mediation services. The above option is useful for companies in its bid to shun a lengthy procedure that would have taken some extra time and been lengthy or complex in foreign jurisdictions in the course of litigation.

4. Regional Agreements and Bilateral Treaties

In addition to such multilateral agreements, in the form of TRIPS, states enter into what are known as regional trade agreements or RTAs with which they have bilateral treaties with an object of focusing on IP enforcements. Regional trade agreements establish common standards on such protection of IP and, therefore, enforcement of the rights in a specific area or between two countries.

For example, the EU has harmonized IP laws among all its member countries. This simplifies the process of better enforcing IP rights in the EU. Likewise, USMCA provisions also enhance IP right protection in the North America region. International agreements such as the USMCA might even be easier to enforce IP rights than the enforcement through national laws might afford.

5. Online Platforms and Digital Enforcement Tools

Governments and corporations are now resorting to increasing the use of more digital instruments to monitor and enforce their rights since the internet increasingly presents itself as the best location to find infringement of IP rights. Examples include reporting and removal systems established by Google, Amazon, and eBay for counterfeit products or pirated content on their sites.

These organizations have other roles that help in the execution of this aim. Some of the roles include: the use of the tools to give takedown notices and deter sales or distribution of infringing products. The other organizations are WIPO and the International Anti-Counterfeiting Coalition (IACC). These organizations have created international databases which trace IP infringements. Organizations like these help the rights holders track infringement and take immediate action about it.

International trade needs dynamic and advanced mechanisms for the enforcement of intellectual property rights. It has certainly made some progress with respect to international agreements, customs-based enforcement, and ADR mechanisms; however, it encompasses a wide range of challenges which include national law variations right up to global trade in counterfeit goods and jurisdictional complications, among others unique to digital technology.

Strengthen international cooperation, build mechanisms of enforcement, and counter the technological and economic causes of inefficiency in protection. With a comprehensive use of legal, commercial, and technological measures, states and businesses can come together to better safeguard their owners' IP rights when exporting goods into another nation's market.

IP rights enforcement is a quite complex and dynamic feature in international trade law. The fact that global trade continues to rise only means the problems pertaining to protection and enforcement of IP will also increase. There is a need for improvement of domestic IP laws, international cooperation, and easy and effective mechanisms for resolving disputes. The international community could, through international treaties, regional agreements, and cooperation in enforcement, move toward a more harmonized and fair system for protecting intellectual property rights in international trade.