Trans-Pacific Partnership Intellectual Property Provisions

The Trans-Pacific Partnership (TPP) is a multilateral Free Trade Agreement. The "Advanced Intellectual Property Chapter for All 12 Nations with Negotiating Positions (August 30, 2013 consolidated bracketed negotiating text)" was published by on 13 November 2013. Previously, the US proposal for the chapter had been leaked by U.S. Congressman Darrell Issa (R-CA) in May 2012. Other drafts available are from February 2011 and September 2011 – the latter focuses on patent.

The intellectual property provisions are a source of controversy, especially in terms of their effects on pharmaceutical patents and digital innovation. TPP members agree that they will follow and expand upon the legal rights and obligations delineated in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the agreement's discussions thus far have included trademark, geographical indication, copyright and related rights, patents, trade secrets, genetic resources, and traditional knowledge. Furthermore, statements from former US officials indicate that the agreement is intended to “set the bar” for future agreements.

The language of the TPP borrows heavily from the Anti-Counterfeiting Trade Agreement (ACTA) (the most recent multilateral agreement involving copyright). The most recent intellectual property agreement that applies to all TPP members is TRIPS.

The Trademark provisions of the TPP contain similarities to current United States trademark law and in several instances call for a higher level of protection than in the TRIPS agreement.

Scope of Trademark: Article 2.1 of the TPP states that “No Party may require, as a condition of registration, that a sign be visually perceptible, nor may a Party deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound or a scent.”

This mirrors the scope of trademark in the Lanham Act. This places an obligation on TPP members to grant trademarks that they could reject under TRIPS, which allows a member to “require, as a condition of registration, that signs be visually perceptible.” The language of this article also duplicates the wording of the trademark provision in the Korea-US Free Trade Agreement.

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