The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Decision and the Awakening of the TRIPS Flexibility Clauses

The limited role the objectives and principles of the TRIPS Agreement (Articles 7 and 8) have played so far in the interpretation and implementation of its substantive provisions has often been criticised. The WTO Panel Report “Australia - Plain Packaging” is likely to change this situation for the future, as for the first time the Panel fully engages with Articles 7 and 8 of TRIPS to interpret Article 20 relative to the use of trademarks. It is indeed the reliance on these two provisions that allows the Panel to conclude that there are legitimate reasons for which Members may encumber trademark use. The awakening of these two provisions that have long remained dormant in the Agreement could have a fundamental impact in offering the possibility of a more flexible reading of TRIPS. It could indeed secure the adaptability of intellectual property rights to the evolution of economic, technological and social circumstances by guaranteeing a more balanced interpretation of the limitations and exceptions included in the Agreement, as advocated for example several years ago by a group of international IP scholars in the “Declaration on a balanced interpretation of the three-step test”. Furthermore, the use of these two provisions could serve as a gateway for the taking into account ethical imperatives supported by international human rights in the interpretation of the TRIPS norms. If such a reading has been advocated in the past, the Panel Report might lead in the future to a more frequent and welcomed raising of human rights arguments in the context of international trade law.