TRIPS, Trademarks & TRIPS-Plus — Lecture Notes

The discussion resumes at the point where the previous lecture stopped, focusing on specific provisions of the TRIPS Agreement that govern trademarks.
Core trademark-relevant provisions are contained in TRIPS Articles 15 – 20.
Emphasis in today’s lecture is mainly on Article 16 (rights of trademark owners), while briefly revisiting Articles 15 and 15.4.
Trademark rules under TRIPS are intended to supply minimum international standards for member states; nations may adopt higher standards ("TRIPS-plus").

Article 15 sets out what signs may constitute a trademark; Article 15.4 addresses absolute grounds for refusal/invalidation (e.g., lack of distinctiveness, descriptiveness, public morality).
Recommended reading: Lionel Bentley & Brad Sherman, Intellectual Property Law, p.0 $777$ .
Similar classifications of absolute grounds are found in domestic statutes of many countries (UK, India, Sri Lanka, etc.).

The WTO’s overarching aim is to reduce barriers to international trade in line with neoliberal economic policy.
IP protection can itself act as a trade barrier; therefore TRIPS seeks a balance by harmonising minimum levels of IP protection.
Members must implement these minima but may exceed them.

"TRIPS-plus" = any domestic or treaty provision that gives more protection than TRIPS requires.
• In class, the lecturer quizzed students: meaning of TRIPS-plus?
• Answer: provisions that afford stronger, broader, or longer rights than the TRIPS baseline.
Such provisions may appear in:
• Domestic legislation (unilateral over-compliance).
• Bilateral, regional, or multilateral trade & investment agreements that include specialised IP chapters (similar in importance to dispute-settlement chapters).
Presence of TRIPS-plus obligations is optional; not every treaty includes them.

TRIPS minimum for copyright protection: $50$ years from the death of the author.
Sri Lankan IP Act: "life + $70$ years" ➔ TRIPS-plus because 70 > 50.
Legislators perceived copyright (and related rights) as especially significant during drafting, hence the broader protection.

Core content of Article 16: a registered trademark owner has the exclusive right to prevent third parties (without consent) from using identical or similar signs on identical or similar goods/services where such use would create a likelihood of confusion.
Key elements:
• Requirement of use in the course of trade.
• Focus on identical/similar sign + identical/similar goods/services.
• Test = likelihood of confusion; not every similar use inevitably confuses, but it usually will.

Exclusive rights cover:
• Preventing unauthorised use.
• Blocking infringing licensing agreements.
• Other defensive actions linked to the mark.
Trademark rights are in rem (enforceable against the whole world, not just specific persons).

IP rights grant a time-limited monopoly but operate mainly as negative rights (rights to exclude):
• The owner may stop others;
• The owner is not automatically obliged/entitled to exploit the sign personally.
This negative posture resembles many fundamental rights in Sri Lanka’s 1978 Constitution (Chapter III), framed as prohibitions on state action rather than affirmative entitlements.

A postgraduate IP course should not merely catalogue statutory provisions but explore:
• Philosophical and theoretical foundations of IP.
• Practical application and policy debates (e.g., balancing trade liberalisation with IP protection).
• Contemporary trends in trademark scope and enforcement.
Hence the lecture sequence: start with TRIPS-level fundamentals, then proceed to domestic legislation.