The Notion of 'Trade-Related' Aspects of Intellectual Property Rights : From World Trade to EU Law - And Back Again

Few fields of international law have developed as dramatically as international intellectual property law. Proliferating international agreements on IP law (and aspects thereof) and in particular the inclusion of IP law in trade agreements have brought about ever-higher standards of IP protection. The concept that opened the door to the inclusion of IP protection in the trade arena was that of "trade-related" intellectual property rights. The comment traces the history of the concept in international trade law, describes the "migration" of the concept to EU law, where the conclusion of agreements relating to "commercial aspects" of intellectual property rights became part of the EU's competences under Art. 207 and the interpretation of the concept by Advocate General Cruz Villalón and the CJEU in Daiichi Sankyo. The peculiar consequences of the Court's holdings with respect to the future development of international IP law are discussed, blame for which is ultimately not placed on the Court, but rather on importing a notion into EU law that is devoid of any helpful substantive definition and hence should never have served as a competence conferred to the EU