Article 4 Most-Favoured Nation Treatment with Regard to The

Article 4 Most-Favoured Nation Treatment

With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member: (a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confi ned to the protection of intellectual property; (b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country; (c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement; (d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notifi ed to the Council for TRIPS and do not constitute an arbitrary or unjustifi able discrimination against nationals of other Members.

Bibliography P. C. Mavroidis, The General Agreement on Tariffs and Trade, 1995; K.-N. Pfeifer, Brainpower and Trade: The Impact of TRIPS on Intellectual Property, GYIL 39 (1996), 100–133; T. Einhorn, The Impact of the WTO Agreement on TRIPS (Trade-Related Aspects of Intellectual Property Rights) on EC Law: A Challenge to Regionalism, Common Mkt. L. Rev 35 (1998) 5, 1069–1099; C. Arup, The New World Trade Organization Agreements, 2000; Van den Bosche, The Law and Policy of the World Trade Organization, 2005.

Case Law Panel Report, US—Section 211 Appropriations Act, WT/DS176/R; Appellate Body Report, US—Section 211 Appropriations Act, WT/DS176/AB/R; Panel Report, EC—Trademarks and Geographical Indications, WT/DS174/R, WT/DS290/R.

Cross References Art. I GATT (1994); Art. II GATS; Art. 5 ECT; Art. 308 NAFTA.

Table of Contents A. Introduction 1 I. Relevance of Most-Favoured Nation Treatment 1 II. Concept and Effects 5 B. The Most-Favoured Nation Treatment in the TRIPS Agreement 8 I. Content and Scope of Application 8 II. US-Section 221 Appropriations Act and EC—Trademarks and Geographical Indications 10 III. Exceptions 12 1. International Agreements on Judicial Assistance or Law Enforcement (Art. 4 lit. a) 13 2. Provisions of the Berne Convention (1971) or the Rome Convention (Art. 4 lit. b) 15 3. Related Rights (Art. 4 lit. c) 16 4. International Agreements Prior to the Entry into Force of the WTO Agreement (Art. 4 lit. d) 17

ELFRING & AREND 160 part i: general provisions and basic principles

A. Introduction

I. Relevance of Most-Favoured Nation Treatment 1 The principle of most-favoured nation (MFN) treatment belongs to the cornerstones of the development and liberalization efforts of the GATT.1 Together with the principle of national treatment, most-favoured nation treatment serves to prevent discriminatory action and the reduction of trade barriers as well as to open the Members’ internal markets.2 2 Hitherto, most-favoured nation treatment has been of no major signifi- cance in multilateral treaties for the protection of intellectual property rights.3 While MFN treatment is the driving force in reducing barriers to market access in respect of trade in goods, the protection of intellectual property rights is predominantly shaped by the principle of national treatment and minimum standards. In order to prevent fraudulent action and the misuse of rights, the standard of protection existent in a Member is decisive for the protection of intellectual property.4 3 Given its intangible nature, intellectual property is globally accessible from the time of its fi rst publication. Market access conditions are usually irrel- evant to its protection. Not until the gradual reduction of trade tariffs did the so-called non-tariff barriers, including insuffi cient or excessive protection of intellectual property gain importance. The incorporation of the MFN principle traces the new political developments in the protection of intellectual property in the TRIPS Agreement. 4 It is, in particular, the small- and medium-size industries which benefi t from the most-favoured nation principle. By means of MFN treatment, they enjoy the same advantages as are granted in other Members.5 Thus, those small- and medium-size industries favoured the inclusion of a MFN provision in the TRIPS Agreement during the Uruguay Round.6 In fact,

1 US—Section 211 Appropriations Act, WT/DS176/AB/R, para. 297. See for the basic principle and effects of MFN Treatment: Cottier, Aussenwirtschaft 47 (1992), 79, 94; Yusuf, in: Correa & Yusuf (eds), 3, 16; See also Correa, 66; Flory, 33 et seq.; Matsushita & Schoenbaum & Mavroidis, 201 et seq.; Mavroidis, 110 et seq.; Stoll & Schorkopf, Max Planck CWTL, Vol. 1, 119 et seq.; Van den Bosche, 309 et seq. 2 Flory, 177. 3 In contrast thereto many bilateral agreements on intelllectual property protection concluded in the 19th century contain the principle of most-favoured nation treatment. Gervais, paras 2.50 et seq. 4 Ibid. 5 For details and theoretical foundations of the MFN principle, see Stoll & Schorkopf, Max Planck CWTL, Vol. 1, paras 119 et seq. 6 See, for instance, Negotiating Group on TRIPS, includiding Trade in Counterfeit Goods, Guidelines proposed by the European Community, MTN.GNG/NG11/W/16, 20 November 1987. See also Ross & Wasserman, in: Stewart (ed.), 2271.

ELFRING & AREND