Plain Packaging and the Interpretation of the TRIPS Agreement
Frankel, Susy, Gervais, Daniel J., Vanderbilt Journal of Transnational Law
2. Exclusive Rights
Another element of Article 20's context is Article 16, which sets out trademark owners' exclusive rights against infringers. (143) As just mentioned, the absence of an explicit right to use a trademark only tells part of the story--namely, that there evidently is no absolute right to use, but that is far from a complete answer. First, the nature of property is such that it often utilizes the framework of rights to exclude in order to give parameters to what the property owner and others may or may not do. (144) Indeed, the ability to exclude others from the property is frequently a touchstone of what makes something property. (145) Second, the absence of an explicit right to use is a feature common to most property rights, whether the property is intellectual, personal, or real property. (146)
The absence of an express statement in the TRIPS Agreement of a right to use has given rise to two simple but incorrect arguments about the TRIPS Agreement's interpretation. Broadly those arguments are:
--All trademark rights and interests must be expressed in the text of the TRIPS Agreement. If they are not so expressed they must be implied. They cannot be implied so they do not exist. (147)
--Because trademarks' exclusive rights can be characterized as negative rights, there can be no positive rights of trademark owners at all, including to use. (148)
While it is correct that an interpreter of the TRIPS Agreement, or any international agreement, should not add to the text of it, (149) the problem with the first argument is that it seems to ignore the treaty interpretation rules of the VCLT in that it applies a literal, or black letter law, interpretation in complete isolation from context and object and purpose. In some instances, those analyzes may end up at the same place, but not always. What matters here is the interpretive process. This is one reason why international treaty interpretation rules are so important: if such rules are ignored, the rules-based system risks its very legitimacy.
The TRIPS Agreement is an international agreement setting out minimum standards that must be enacted in domestic law. (150) Applying the customary rules of treaty interpretation, it should be interpreted as such. Put differently, the TRIPS Agreement is not a domestic law statute, and, therefore, one should expect that it is less detailed than a domestic statute. (151) If express words are missing from a minimum standards treaty, then the absence of express words should not be used to defeat the object and purpose of the treaty. Interpretation of ordinary meaning under the VCLT does not allow reading in words where they do not exist, but it does require interpretation in light of the context and object and purpose of the treaty. (152) That requires more than an exclusively literal interpretation of individual parts of the TRIPS Agreement.
The problem with the second line of argument is that its simplicity ignores property law and theory in two key ways. First, the notion of negative rights (that is, the right to exclude others) is predominantly a definitional methodology of delineating property rather than a substantive means of defining what the owner of property may or may not do with the property. (153) Second, there is an inseparable relationship between rights to exclude (negative) and legitimate interests (positive). (154)
In light of the above analysis, to argue, as some have done, that the legitimate interests of trademark owners are exactly the same as, and limited to, the Article 16 rights granted in the TRIPS Agreement--thereby excluding any legally cognizable interest in using their trademark--strikes the authors as unconvincing. (155) In sum, trademark rights matter in the plain packaging debate. The debate is more nuanced and complex than the simple (and in this Article's view inaccurate) suggestion that because trademark owners' rights against third parties are generally expressed as (negative) rights to exclude, trademark owners do not have legitimate and legally relevant interests (156) to use their trademarks beyond registration. …