the Appellate Body reversed this and held that Sections 211 (a) (2) and (b) were discriminatory on their face and inconsistent with the obligations of the US under the TRIPS Agreement. Hence the Appellate Body concluded the following;
• That Section 211 (a) (2) was in violation of National Treatment principle; • That Section 211 (a) (2) and (b) were in violation of national treatment with respect to owners; • That Section 211 (a) (2) and (b) were in violation of MFN with respect to both owners as well as successors-in-interest
Conclusion
The Appellate Body held WTO Members must comply with the TRIPS Agreement, through which all other Members are voluntarily bound. A Member should not discriminate in a way that does not respect the obligations of national treatment and most-favoured-nation treatment, both being fundamental to the TRIPS Agreement.3
Footnotes
1 European Communities vs United States (Appeal), WT/DS176/AB/R, January 2, 2002, WTO.
2 National Treatment is when member countries are to accord the same national treatment which is no less favourable than which it provides its own nationals with respect to intellectual property rights. The MFN principle requires each Member to grant nationals of other member countries any advantage, favour, privilege or immunity given to nationals of any country with regard to the protection of intellectual property rights.
3 Id at 1, ¶ 363.
Author Profile - Divya Srinivasan
Divya is an Associate in the Delhi office of LexOrbis.
Divya completed her graduation in law from University of Petroleum & Energy Studies, Dehradun and her masters in law specialising in Intellectual Property Rights from National Law University, Jodhpur. She has experience in trademark filing and prosecution, and writes for various publications on behalf of the firm. She also works on other research projects looking at various facets of Intellectual Property Rights laws.