IP Protection in International Trade Law

Intellectual property is protected in international trade through one global baseline and a set of border tools that enforce it — and for a U.S. business, the two enforcement tools that matter most are ITC Section 337 cases and Customs recordation of trademarks and copyrights. Patents, trademarks, copyrights, and trade secrets are intangible, so once a product crosses a border, the practical question is not who owns the right but how it gets enforced against infringing imports.

This article explains the international baseline (TRIPS), the two main U.S. border mechanisms, and how a rights holder chooses between them.

The Global Baseline: TRIPS

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by the WTO and in force since 1995, is the foundation. TRIPS does not create a single worldwide patent or trademark. Instead, it sets minimum standards that all 166 WTO members must meet for patents, trademarks, copyrights, geographical indications, industrial designs, and trade secrets.

Two features make TRIPS matter for trade. First, it requires members to provide real enforcement — civil procedures, provisional measures, border measures against counterfeit and pirated goods, and criminal penalties for willful trademark counterfeiting and copyright piracy on a commercial scale. Second, it makes IP disputes between countries subject to WTO dispute settlement, so a member that fails to protect IP can be challenged. TRIPS sets the floor; each country builds its own enforcement system on top of it.

U.S. Border Tool #1: ITC Section 337 Investigations

The most powerful U.S. tool against infringing imports is Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337). It lets a rights holder ask the U.S. International Trade Commission (ITC) to investigate “unfair” imports — most often imports that infringe a U.S. patent, registered trademark, or copyright, though it also reaches trade-secret misappropriation and other unfair acts.

The remedy is what makes Section 337 distinctive. Rather than money damages, the ITC can issue an exclusion or