WTO ANALYTICAL INDEX

TRIPS Agreement – Preamble (DS reports)

1 PREAMBLE ................................................................................................................... 1
1.1 Text of the Preamble.................................................................................................... 1
1.2 General ...................................................................................................................... 1

1 PREAMBLE

1.1 Text of the Preamble

Members,

Desiring to reduce distortions and impediments to international trade, and taking into
account the need to promote effective and adequate protection of intellectual property
rights, and to ensure that measures and procedures to enforce intellectual property rights
do not themselves become barriers to legitimate trade;

Recognizing, to this end, the need for new rules and disciplines concerning:

(a) the applicability of the basic principles of GATT 1994 and of relevant
international intellectual property agreements or conventions;

(b) the provision of adequate standards and principles concerning the

availability, scope and use of trade-related intellectual property rights;

(c) the provision of effective and appropriate means for the enforcement of
trade-related intellectual property rights, taking into account differences in
national legal systems;

(d) the provision of effective and expeditious procedures for the multilateral
prevention and settlement of disputes between governments; and

(e) transitional arrangements aiming at the fullest participation in the results of

the negotiations;

Recognizing the need for a multilateral framework of principles, rules and disciplines
dealing with international trade in counterfeit goods;

Recognizing that intellectual property rights are private rights;

Recognizing the underlying public policy objectives of national systems for the
protection of intellectual property, including developmental and technological objectives;

Recognizing also the special needs of the least-developed country Members in respect
of maximum flexibility in the domestic implementation of laws and regulations in order to
enable them to create a sound and viable technological base;

Emphasizing the importance of reducing tensions by reaching strengthened

commitments to resolve disputes on trade-related intellectual property issues through
multilateral procedures;

Desiring to establish a mutually supportive relationship between the WTO and the
World Intellectual Property Organization (referred to in this Agreement as "WIPO") as well
as other relevant international organizations;

Hereby agree as follows:

1.2 General

1. The Panel in Australia – Tobacco Plain Packaging, in considering the types of reasons that
might sufficiently support the application of special requirements that may be considered not to

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 WTO ANALYTICAL INDEX
TRIPS Agreement – Preamble (DS reports)

"unjustifiably" encumber the use of a trademark in the course of trade within the meaning of
Article 20, noted that:

"[T]he first recital of the preamble to the TRIPS Agreement expresses a key objective
of the TRIPS Agreement, namely to 'reduce distortions and impediments to
international trade' and takes into account the need, on one hand, 'to promote
effective and adequate protection of intellectual property rights' and, on the other, 'to
ensure that measures and procedures to enforce intellectual property rights do not
themselves become barriers to legitimate trade'.

Articles 7 and 8, together with the preamble of the TRIPS Agreement, set out general
goals and principles underlying the TRIPS Agreement, which are to be borne in mind
when specific provisions of the Agreement are being interpreted in their context and in
light of the object and purpose of the Agreement."1

2. In India – Patents (US), the Appellate Body referred to a part of the preamble in its
interpretation of Article 70.8(a):

"The Panel's interpretation here [of Article 70.8(a)] is consistent also with the object
and purpose of the TRIPS Agreement. The Agreement takes into account, inter alia,
'the need to promote effective and adequate protection of intellectual property
rights'."2

3. In EC – Trademarks and Geographical Indications, the Panel referred to the preamble to

confirm its observation that the text of the national treatment obligation in Article 3.1 of the TRIPS
Agreement combines elements both from pre-existing intellectual property conventions and
GATT 1994:

"It is useful to recall that Article 3.1 of the TRIPS Agreement combines elements of
national treatment both from pre-existing intellectual property agreements and
GATT 1994. … This combination of elements is reflected in the preamble to the
TRIPS Agreement which explains the purpose of the "basic principles" in Articles 3 and
4 (a term highlighted in the title of Part I)

'Recognizing, to this end, the need for new rules and disciplines
concerning:

(a) the applicability of the basic principles of GATT 1994 and of

relevant international intellectual property agreements or conventions;'"3

4. In EC – Trademarks and Geographical Indications, the Panel referred inter alia to the
preamble to ascertain the object and purpose of the TRIPS Agreement:

"The ordinary meaning of the terms in their context must also be interpreted in light
of the object and purpose of the agreement. The object and purpose of the
TRIPS Agreement, as indicated by Articles 9 through 62 and 70 and reflected in the
preamble, includes the provision of adequate standards and principles concerning the
availability, scope, use and enforcement of trade-related intellectual property rights.
This confirms that a limitation on the standards for trademark or GI protection should
not be implied unless it is supported by the text."4

5. In EC – Trademarks and Geographical Indications, the Panel referred to the preamble to

confirm its view that "interested parties" for the purposes of Article 22.2 can be "private parties":

1
Panel Reports, Australia – Tobacco Plain Packaging, paras. 7.2398 and 7.2402.
2
Appellate Body Report, India – Patents (US), para. 57.
3
Panel Reports, EC – Trademarks and Geographical Indications (US), para. 7.131; EC – Trademarks
and Geographical Indications (Australia), para. 7181.
4
Panel Reports, EC – Trademarks and Geographical Indications (US), para. 7.620; EC – Trademarks
and Geographical Indications (Australia), para. 7.620.

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TRIPS Agreement – Preamble (DS reports)

"Article 1.3 provides that 'Members shall accord the treatment provided for in this
Agreement to the nationals of other Members'. That includes the protection provided
for in Article 22.2, which obliges Members to provide legal means for 'interested
parties'. The interested parties must qualify as 'nationals of other Members' in
accordance with the criteria referred to in Article 1.3. These persons can be private
parties, which is reflected in the fourth recital of the preamble to the agreement,
which reads '[r]ecognizing that intellectual property rights are private rights'."5

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Current as of: June 2024

5
Panel Report, EC – Trademarks and Geographical Indications (US), para. 7.742. See also Panel
Reports, EC – Trademarks and Geographical Indications (US) para. 7.682; EC – Trademarks and Geographical
Indications (Australia), para. 7.680.