USA / INTELLECTUAL PROPERTY / TRIPS

IIC, the International Review of Industrial Property and Copyright Law, Vol 31 No 7-8, 2000

United States Imports, TRIPS and Section 337 of the Tariff Act

Maximilian Haedicke

In this article, the author describes the operation of the section 337 procedure and assesses its compatibility with the TRIPS agreement. He points out that the protection of intellectual property right holders in the United States is achieved "not only by means of the domestic system of intellectual property right and traditional international agreements, but also by means of various trade policy instruments not included within classical intellectual property law". The Tariff Act governs imports into the United States; section 337 governs the quasi-judicial procedure adopted when the US International Trade Commissioner, on a complaint or ex officio, examines whether certain goods imported into the USA infringe the rights of US intellectual property write holders. A GATT tribunal decision reached in 1989 held that the procedure discriminated against foreigners; and, although the section was modified in the light of the decision, the author does not consider that the changes made went far enough to implement it. However, since then, the old GATT system has been replaced by the WTO treaties and by TRIPS; and, given what the author describes as the clear shift in emphasis in favour of the effective protection of intellectual property, a different criterion has to be applied to the international acceptability of section 337. The author disagrees with the claim, sometimes made, that section 337 is incompatible with article 41 of TRIPS: "the decisive factor is that article 41 et seq contain the requirement of effective protection of rights". Whatever faults the section 337 procedure may have, it is generally swift and far less costly than other proceedings. The Section 337 procedure and the corresponding TRIPS enforcement-of-rights provisions demonstrate the increasing trade focus of international intellectual property law. The proceedings further demonstrate that the commercial focus of intellectual property protection, together with the effectiveness with which rights are enforced, "can be a very special benefit for this type of protection". [20045]