TRIPS plus or EU minus? IP under the EU-UK Trade and Cooperation Agreement

The IP provisions of the EU-UK Trade and Cooperation Agreement are intended to “complement and further specify the rights and obligations of each Party under the TRIPS Agreement” and other IP agreements (Art.IP.2(1)). The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is Annex 1C to the WTO Agreement, which entered into force on 1 January 1995. IP provisions in subsequent trade agreements are often described as “TRIPS plus”, so 26 years after TRIPS, what does the EU-UK TCA add (and is this really the right way to look at it)? To help, we’ve lined up the relevant provisions in the PDF below. 

Some key overarching aspects are similar. For instance, the obligations are minimum rather than harmonising - each side is permitted to implement more extensive protection (Art.IP.2(2)). Each side must treat nationals of the other no less favourably than their own nationals (Art.IP.6). There is no requirement of most-favoured-nation treatment, although that is still required by TRIPS (Art.4). The question of exhaustion is largely left open (Art.IP.5, 20(2)-(3) and 53(12)).

Other aspects have simply been updated to reflect the passage of time. For instance, the objective of innovation is no longer said to be merely “in a manner conducive to social and economic welfare” but is expected to be “contributing to a more sustainable and inclusive economy” (Art.IP.1). The list of IP agreements affirmed is much longer (Art.IP.4(1) and Art.IP.37), and both sides commit to ratifying the Beijing Treaty on Audiovisual Performances 2012 and the Singapore Treaty on the Law of Trademarks 2006 (Art.IP.4(2)). There is recognition of the 2001 Doha Declaration and the 2017 amendments to TRIPS (Art.IP.32). Semiconductor topography protection is no longer discussed, but there is recognition of the value of “voluntary stakeholder initiatives” to reduce infringement online (Art.IP.56).

Much of the rest then largely implements existing EU IP law: for instance, the extensive articles on copyright (Art.IP.7-17), trade marks (Art.IP.18-26), designs (Art.IP.27-31), trade secrets (Art.IP.34 and 52) and aspects of the Enforcement Directive (Art.IP.38-50) and border measures (Art.IP.53).

Most interesting, though, is what is not covered - which may indicate areas of future divergence. For now, we pick out five examples:

1. In the case of trade marks, there is no requirement to maintain rights against dilution (Art.IP.20).

2. Nothing very extensive has been agreed on geographical indications (Art.IP.57). The EU’s approach to GIs has long been a major point of trade tension with the United States.

3. In relation to patents, there is a requirement for some form of supplementary protection for medicinal products and plant protection products to reflect the protection lost during the authorisation process, but the details such as duration are not specified (Art.IP.33).

4. Similarly, there are requirements for some form of data or marketing exclusivity, which in the case of plant protection and biocidal products must be at least 10 years - no duration is specified for medicinal products (Art.IP.35-36).

5. There is no discussion of the interface with competition law (TRIPS Art.8(2) and 40) or state aid (TRIPS Art.8(1)).

In sum, the “TRIPS plus” elements of the EU-UK TCA primarily serve to elevate the status of large parts of the existing EU IP law (acquis communautaire) from retained UK law (which the UK could change) into minimum standards. In itself, this merely identifies areas of the status quo which will continue in the longer term. However, what is more interesting is what has been omitted or limited, such as the points identified above, as this provide a strong indication of the areas where the UK negotiators wanted to retain flexibility to diverge in the future. From this perspective, it may well be more useful to consider the EU-UK TCA as an “EU minus” agreement rather than a “TRIPS plus” one.