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In-Depth Information
consumers did, nor could it be assumed that the recipients were potential
consumers of the genuine goods.
(xii)
De minimis
exports
Article 60 permits Members to exclude 'small quantities of goods of a non-
commercial nature contained in travellers' personal luggage or sent in small
consignments' from the border control provisions of the TRIPS Agreement.
2.181
(xiii) Parallel importation
Article 6 of the TRIPS Agreement explicitly states that '[f ]or the purposes of
dispute settlement under this Agreement, subject to the provisions of Articles 3
and 4 nothing in this Agreement shall be used to address the issue of the
exhaustion of intellectual property rights'. The reference to 'dispute settlement
under this Agreement' raises the possibility that exhaustion of IPRs might be
raised in other areas of WTO regulation. For example, the use of trademarks or
GIs on agricultural products might be regulated by the Agreement on Agricul-
ture (AoA). The plain language of Art 6 suggests that rules of TRIPS might be
used to address an exhaustion of IPRs issues in dispute settlement under the
AoA. An IPR may have the same effects as a quota, thus there is a possibility for
a Member to assert that a rule of national exhaustion that permitted IPRs
holders to block importation of goods is inconsistent with Art XI.1 of GATT
1994. Thus the language of Art 6 might permit a GATT panel to evaluate an
IPR as a measure with the equivalent effect of a quota. On the other hand, the
view has been taken that TRIPS constitutes a
lex specialis
or self-contained set
of rules applicable to IPRs and trade regulation, and that the exhaustion
question could not be examined by a GATT panel in a non-TRIPS dispute
(Bronckers, 1998). In any event, Art 6 of TRIPS is confined in its operation to
WTO disputes and leaves open the subject of exhaustion for national litigation.
2.182
7. TRIPS rights under European law
2.183
Probably because of the recent history of the EU before a WTO dispute panel,
interpreting the GIs and trade marks provisions of the TRIPS Agreement, the
ECJ has taken account of the WTO TRIPS Agreement in its interpretation of
the language of its legislation. In Case C-245/02
Anheuser-Busch Inc
.
v Bud˘jo-
vický Budvar
79
the ECJ said that since the Community is a party to the TRIPS
Agreement, 'it is indeed under an obligation to interpret its trade-mark
legislation, as far as possible, in the light of the wording and purpose of that
agreement'.
80
It observed that:
79
[2005] ETMR 286.
80
Ibid, at para 42.
