Chicago Journal of International Law


The World Trade OrganiZation's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half First, the TRIPS Agreements requirement that developing states make the domestic enforcement of intellectual property rules available is weak. The TRIPS Agreement relies on the existence of domestic remedies to enforce intellectual property rules. This reliance is unwarranted, however, because states are explicitly exempted from any obligation to allocate significant resources (i.e. police or prosecutors) to enforce these laws. Nor are courts or judicial authorities required to order the remedies that the TRIPS Agreement gives them the authority to provide. The result is that states can set their effective level of intellectual property enforcement at a level well below that of developed states with similar laws and enforcement institutions. Second, this article highlights the beneficial effects that trade retaliation in intellectual property can have for developing countries. The possibility of retaliating by suspending the TRIPS Agreement's obligations gives developing states much greater leverage to enforce other trade obligations against developed states.