On The Protection Of Geographical Indications

The objective of this essay is to analyze the international protection of geographical indications. Geographical indications are intellectual property rights. Like trademarks or commercial names, geographical indications are signs which permit the identification of products on the market. They do not, however, protect products or production methods as such, but rather, confer to all producers from a given geographical area the exclusive right to use a distinctive sign to identify their products if they possess a given quality, reputation, or other characteristic attributable to their geographical origins.Geographical indications are increasingly being seen as a useful intellectual property right for developing countries because it can promote rural socio-economic development and enable economic returns to holders of traditional knowledge. A geographical indication is a notice of a specific product having been produced in a particular place. The producer can use this indication only for products from the specified region. Unlike a trademark, however, the GI is not an individual property for use by the owner alone, but it suggests the geographical indication of that region, which any producer may use. The consumer has faith in the quality of the product of the region.The paper has been structured as follows:The first chapter introduces the main aspects of the geographical indications protection, including the concepts, function, nature, character, methods of protection, justification and the significance. One of the major difficulties for the international protection of geographical indications has always been the diversity of various national concepts. Geographical indications are addressed in laws concerning unfair competition, trademarks, advertising and labeling, food and health, as well as in special regulations. One of the notorious problems involved in the protection of geographical indications arises from the fact that in most cases they do not identify a single business source (or a definite number of business sources) and therefore it is often difficult to establish the boundaries of the region that can legitimately claim use of the name. When the geographical name is so widely used that the public comes to understand it as the name for a category of all the products of the same type but not necessarily of a certain origin, the name can become generic. Obviously, producers in the true place of orgin have a vital interest in preventing the degeneration of a geographical indication. TRIPS Agreement provides a clear definition of geographical indications. The terminology traditionally applied in treaties in the field of geographical indications distinguishes among "indications of source", geographical indications and "appellations of origin". "Indications of source" is the broadest term among the abovementioned three. It comprises geographical indications and appellations of origin. Geographical indications are more broadly defined than appellations of origin. In other words, all appellations of origin are geographical indications, but some geographical indications are not appellations of origin. Tademarks and geographical indications differ in many respects. Like other forms of intellectual property, geographical indications arise as a solution to certain failures in markets for informationThe second chapter explores the approaches of the geographical indications protection in some typical countries and regions such as the EU and the U. S. A. and in the new generations of bilateral and regional agreements as well as the new standards being set before the conclusion of the TRIPS Agrement. For that purpose, it will analyse the protection at the national, bilateral and regional level. It then introduces in detail the protection of geographical indications in those countries and treaties, as well as briefly discusses the histories of the United States and France. Some countries, especially France, began very early to protect geographic names or indications of origin. There are different advantages and disadvantages in these approaches. This chapter also provides background information on geographical indications protection. Bilateral international agreements are typically concluded between two countries on the basis of reciprocity in order to increase protection of the countries' respective geographical indications. Bilateral international agreements appear to be important with regard to specific economic sectors and, in particular, the wine industry. The EU, in particular, has pursued stronger protection in the context of bilateral trade agreements. For example, additional obligations for the protection of geographical indications pertaining to wines and spirits exist in bilateral agreements between the European Union and Australia, Canada, Chile, Mexico, and South Africa. In September 2005, the EU and the USA concluded an Agreement on trade in wines settling certain longstanding disputes on wine names and wine-making practices. The desire of some member countries for additional protection should be addressed through bilateral agreements which may be unfeasible on a multilateral level, butwhich could supplement TRIPS Agreement's multilateral approach and strengthen itsimplementationTo the EU, in so far as European negotiators are concerned, the two-tiered protection of TRIPS represents a partial victory. COUNCIL REGULATION (EEC) NO 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs lays down rules on the protection of designations of origin and geographical indications of some agricultural products. Names that have become generic may not be registered. To be eligible to use a Protected Designation of Origin or a Protected Geographical Indication, an agricultural product or foodstuff must comply with a specification. Article 13 is about the uses against which registered names shall be protected. COUNCIL REGULATION (EEC) No. 2081/92 has been replaced by COUNCIL REGULATION (EC) No. 510/2006. Besides, briefly introduced are Regulation 1493/1999, Council Regulation (EEC) No. 1576/89 and Regulation (EC) No. 753/2002, which provide for the protection of the wine or spirits geographical indications. The third chapter deals with the protection of geographical indications in the relavent multilateral treaties. It also summarizes the current protection of geographical indications including appellations of origin in the proposed international initiatives before the adoption of the TRIPS Agreement, including the Paris Convention, the Madrid Agreement, the Lisbon Agreement, the WlPO draft treaty on the protection of geographical indications, the WIPO model law on geographic designations. The beginning of international protection of geographical indications dates back to the conclusion of the Paris Convention in 1883. The history of the Lisbon and Madrid Agreements records a two-hundred-year campaign by the French wine and spirit industry for comprehensive international protection against imitation and counterferting that was ultimately realized in Article 23 of the TRIPS.Undoubtedly, the Paris Convention became the most important treaty adopted in the late nineteenth century because it influenced intellectual property laws adopted by many countries throughout the twentieth century. This treaty was the first multilateral agreement to provide protection for geographical indications although it was rather general and weak when compared to the protections afforded by the TRIPS Agreement. Most of the Paris Convention's large number of Member States agreed mainly to border measures for false indications without defining the conditions for protection. Under the Paris Convention, members must seize or prohibit imports with false indications of source, producer, manufacture, or merchant. Article 10bis(3) serves as the basis for protection against misleading geographical indications. However, the Paris Convention fails to provide any remedies in case of infringement of this provision.The Madrid Agreement provides specific rules for the repression of false and deceptive indications of source, thus exceeding the level of protection given to geographical indications by the Paris Convention. Members agree to implement border measures and prevent the dilution of geographical indications into generic terms. Its article 4 prohibits members from treating geographical indications of wines as generic terms. Due to its weak support, the impact of the Madrid Agreement has been minimal. The Lisbon Agreement was enacted in 1958 as an attempt to achieve effective and enforceable protection for appellations of orgin. It provided for strict protection through an international system. The main feature of the Lisbon Agreement is that appellations of orgin are to be recognized and protected as such, both in the country of origin and registered at an agency of the WIPO. Article 1 states that once an appellation of orgin is registered, it is to be protected in other member countries. According to Article 3, members must prohibit imitations under their respective domestic laws, including the use of term as "like, type, or style", which may be used along with the indication.Article 6 provides that no appellation of orgin can be considered generic in any other member country, so long as it is protected in the country of origin. Because of its strict protection and lack of flexibility, the Lisbon Agreement has few signatories.Problems still exist in the concerned treaties. The Paris Convention has more than a hundred members, but does not contain substantial provisions for the protection of geographical indications. The Madrid Agreement offers only a little more than vague border measures to its 31members. The 1951 Stresa International Convention plays an important role in the protection of the use of Appellations of Origin and Designations of Cheeses. The Lisbon Agreement embodies the choice for effective protection at the cost of having less than 20 members. WIPO also contributes a lot to geographical indications protection. Its attempts to revise the multilateral system of protection after 1958 include the preparation in 1974 and 1975 of a New Treaty on the protection of geographical indications. The national law, bilanteral treay and multilanteral treaty models described in this chapter incur some difficulties: either the sope of protection remains undefined and effective protection depends upon the good will of each member Country, or the agreement requires a standard of uniformity that is simply non-existent.In this chapter the author also recalls the history and main obligations in the protection of geographical indications under the geographical indications section. TRIPS provisions on geographical indications reflect a compromise reached in Uruguay Round of trade negotiations. The provisions of TRIPS are explained in this section. TRIPS Agreement mandates a two-tiered model of regulation, giving enhanced protection to wines and spirits but leaving means of protection to national government for other agricultural products and foods. The standards set forth in Articles 22 through 24 of TRIPS Agreement were not adopted without controversial debate. Under the TRIPS agreement, WTO members agree to protect geographical indications that identify the geographical origin of a good where "a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin." Article 22 provides a standard level of protection and covers all products qualified for protection by geographical indications under TRIPS Agreement. Articles 22(2)-(4) focuses on the goals of providing consumer protection from false representations and preventing unfair competition. This part also mentions the general provisions, enforcement, and dispute settlement. The TRIPS provisions on dispute settlement may be the most important change in the protection of geographical indications.Article 22.2(a) imposes two requirements in determining a violation of geographical indications: a representation on a good suggesting its orgin, and this suggestion being false or misleading. Additionally, Article 22.4 prohibits the use of a statement that is "literally true as to the territory region or locality in which the goods originate, but nonetheless "falsey represents to the public that the goods originate in another territory." This is the issue of the so-called homonymous geographical indications. TRIPS Agreement generally prohibits the use of geographical indications which misled the public, but affords protection of indications for wines and spirits even where the public is not misled. Article 22.3 prohibits granting trademark registration which contains or consists of a geographical indication when the goods do not originate in the territory indicated, if the use of the indication in the trademark misleads the public. Article 23 provides an even higher level of protection for wines and spirits than Article 22. Article 23 is undoubtedly a higher standard of protection because geographical indications relating to wines and spirits are protected even when there is no danger that the public may be misled. The EU and some twenty other countries now demand this higher level of protection for all products, not just wines and spirits. Although Article 23 seeks to implement an effective standard of protection against using names of wines and spirits as generic terms, TRIPS Agreement does not attempt to reverse or disturb the status quo, thus some important exceptions exist in Article 24 that severely limit Articles 22 and 23. Article 24.6 exempts a member from the obligation to provide protection if a geographical designation has become a generic term in the member country. It further provides an exception specifically for wines. Insofar as wines are usually named after grape varieties, use of the grape name is allowed if the grape existed in the member's territory at the time of entry into force of the WTO Agreement. In addition, Article 24.4 permits parallel use of geographical indications for wines and spirits if a name has been in continuous use for at least ten years before the TRIPS Agreement or has been in use "in good faith" before TRIPS Agreement. Articles 23 is also subject to the general exceptions of Articles 24. Article 24.5 provides two exceptions in the context of trademark registration. A trademark registered in good faith that is identical to a geographical indication will remain valid under Article 24.5 if it was registered (a) before the TRIPS Agreement, or (b) before the geographical indication is protected in its country of origin. However, questions remain as to the meaning of "in good faith". Finally, Article 24.9 provides another noteworthy exception, essentially one from the national treatment concept. A member is not obligated to protect geographical indications that are not protected in their country of origin.The TRIPS Agreement provides a platform for the international protection of geographical indications at an unprecedented level. For the first time, promises to protect geographical indications are backed with enforcement provisions. Compared with previous international treaties on the protection of geographical indications, TRIPS Agreement also had at the time the greatest number of signatories, with all WTO members' signatories to the agreement. The TRIPS Agreement represents an important step toward the universal recognition of geographical indications protection. Some comments have been made on it. However, some terms and obligations under Section3 (PartⅡ) are not specific. The fourth chapter points out that during the last twenty years the international protection of geographical indications has experienced a world-wide resurgence spurred by both the greater need and the additional opportunity offered by the global markerplace for the diversification of agricultural products and foodstuffs. New rules and mechanisms for the geographical indications have been a subject of lively discussion in the current multilateral trading round—the Doha Development Agenda. Paragraph 18 of the Doha Ministerial Declaration reiterates the two key follow-up provisions of the Uruguay Round: one is on implementing Article 23.4 of the TRIPS agreement by mandating completing the work started under the Council for TRIPS on the establishment of a multilateral systym for the notification and registration of geographical indications for wines eligible fot protection "in those Members participating in the system". The deadline set was for the Fifth Session of the Ministerial Conference in December 2005. The second follow-up provision in the Doha Ministerial Declaration notes that the extension of geographical indications to products other than wines and spirits will be taken in accordance with paragraph 12 of the Doha Ministerial Declaration on implementation issues. Many proposals have been tabled about the extention and the work on a multilateral register. June 2005 saw the European Communities submit a radical propel, designed to amend TRIPS Agreement in favour of a mandatory multilateral systym of registration, for all products. As to extending the "additional protection" granted to wines and spirits under Article 23 to other products, the EU and the U. S. A. have different views. Advocates of enhanced geographical indications protection base their arguments on the premise that geographical indications generate price differentials that consumers are prepared to pay - in the domestic market or export markets. Overall, the supporters of geographical indications want the maximum level of enforceable protection that will allow their producers to secure higher returns from investment, product quality and reputation. To the U. S. A., which argues that existing Article 22 protection is already adequate, the mayor worry is the impact on their own producers who are currently using marks that may have to adjust marketing practices, as well as the potential loss of consumer recognition, that could be commercially disastrous. The United States has led a campaign to oppose the EU efforts as protectionist and creating trade barriers. For the establishment of a multilateral systym for the notification and registration of geographical indications, some propose a voluntary system for notifying geographical lndlcations to a multilateral database. Governments participating in the system would merely be required to consult the database when deciding on the protection of geographical indications in their own countries. These countries frame the debate as one between the "new world" and the "old world" countries. The current fight between the United States and the EU may be viewed as an extention of the old battle leading up to the TRIPS Agreement. To date, no ready solution to the further global harmonization of geographical indications had been found. In the light of Doha Development Agenda, the author insists that developing countries shoud be given the flexibility to adjust additional protection in accordance with their level of economic development. Undoubtedly, given the experience of the TRIPS negotiations, the EU and the U. S. A. have the influence to shape the future direction of international protection for geographical indication.From the exporatory work the fifth chapter draws the main lessons learned for the bilateral regional multilateral processes in the fields of geographical indications and presents some conclusions. Geographical indications are a kind of intellectual property required to be protected under the TRIPS Agreement of the WTO. In order to fulfil its WTO obligations, China started to protect geographical indications even before it was formally admitted to the WTO. At present, geographical indications can be protected in Chinese law through one or both of the following ways: trademark registration pursuant to the Trademark Law, and the registration of special labels bearing geographical indications. However, internal problems exist within both of these systems, and the co-existence of the systems also creates conflicts. This section analyses these problems and proposes ways of resolving them.