The argument relating to America is that from around 1974 America was clear about its Trade Diplomacy and had its Trade Act of 1974 and amended it in 1988 which had Section 301 generally called super 301 which was a clause that said that if any country undermines or comprises American trade interests, they will take any appropriate sanctions and the sanctions could be unilateral. It took the following formats
1. Aggressive Unilateralism
2. Bilateralism – America dealing with countries one on one
3. Multilateralism through GATT
How did IP develop within GATT
“Whether GATT could play a role in IP … only in the Uruguay round has the idea gained ground.
The idea of putting IP within GATT regime is traceable to the Kennedy Round in 1964 where there was a major issue that trade is not only restricted by tariffs but there are other non-tariff barriers to trade with the same consequences to trade. For example Sanitary and Phytosanitary Services and quotas, America suggested that if a country does not protect International Property, counterfeiting was another NTB. In 1986 Ministers met in Punta Del Este in Uruguay and TRIPS was on the Table that it ought to be included in the GATT regime. TRIPS first started its life due to trademark counterfeiting. It relocation in TRIPS was therefore a natural consequence since trademarks are very trade related and later on expanded to include patents and copyright.
The debate in WTO was whether TRIPS should be mandatory, TRIPS is essentially an agreement and one is therefore not bound by TRIPS per se. By 1994 once a state signed as a member of WTO then they became bound by TRIPS, TRIMS and GATS agreements. 15th April 1994 Marrakesh Morocco TRIPS agreement was signed and countries were given Special and Differential Treatment to be compliant.
America has two systems of dealing with States that are not TRIPS compliant
1. Watch list –
2. Priority Watch List – South Africa most Asian countries that were counterfeiting which meant that measures were likely to be taken.