Brazil Takes Next Step Toward WTO Cross-Retaliation Against US

Brazilian President Lula has adopted a measure to enable the suspension of Brazil’s obligations to protect intellectual property rights from the United States, which follows a World Trade Organization ruling of US non-compliance with WTO rules, according to an unofficial translation of the provisional Brazilian measure.

The dispute arose between the United States and Brazil over US cotton subsidies. An August 2009 WTO arbitration report gave Brazil the right to use trade countermeasures against the US, and in specific circumstances to suspend intellectual property rights obligations (IPW, WTO/TRIPS, 7 September 2009).

The provisional measure, available here, was signed on 10 February by Lula. It has the force of law and was done to ensure that from a domestic legal standpoint, no problems could be encountered when IP rights are suspended according to the WTO ruling, according to a Brazilian source.

Article 2, item 4 of the measure gives a list of IP rights, such as patents, copyrights and trademarks, that potentially could be suspended. The provisional measure is a general piece of legislation, the source said, “umbrella” legislation that is not specifically related to the US cotton dispute.

The items or sectors of IP rights that could be subjected to suspension are still being discussed and the executive branch of the government will define a list in conformity with the WTO ruling and the provisional measure that was just signed, the source said, but no definite deadline has been decided on, he said.

In November, Brazil issued a separate list of 222 American products that could be submitted to tariff rates of more than 100 percent of the value when imported to Brazil. (IPW, WTO/TRIPS, 17 November 2009). The final list of those products should be available at the end of February, the Brazilian source said.