Geographical Indications

by Daniel Gervais on Wednesday, February 1st at 9:53 PM

The issue of geographical indications (GIs) will not go away. Some people are willing to pay more (whether or not they should is a different issue) for products that are produced in a  certain region. There is at least a perception of higher quality or value, and this is what GIs and other rights (appellations of origin) aim to protect.   Because GIs take time to emerge, many “Old World” countries have the advantage, as for French wines or cheeses. However, in the United States and many other “New World” countries, indications of this type (protected not as GIs per se but rather as collective or certification marks) are becoming commonplace: Napa or Niagara for wines; Vidalia for onions; Wisconsin for cheese.

Conflicts arise as when an indication is shared by two countries (“Pisco” shared by Chile and Peru) or when an Old World GI clashes with a New World non-geographic trademark (Budweiser for beer which may refer both to the Anheuser-Busch product and  to the “original” one, Budějovický Budvar, from the Czech Republic).

The World Intellectual Property Organization has been operating an international registry of appellations/GIs since 1958, the Lisbon system.  The system has flaws and may contain a number of administrative and substantive “irritants” which reduce its attractiveness to a number of countries. I took a detailed look at the system here.  In December 2011, WIPO held meetings at which changes to the Agreement (a draft  “new instrument” reminiscent of the protocol to the Madrid Agreement on Trademarks). It made progress, according to the Chair.

The issue if also of interest to the developing world, which holds many GIs on products such as coffee, tea, cocoa, textiles etc. and several forms of traditional knowledge.

The issue is also on the WTO radar because articles 22-24 of TRIPS protect GIs (GIs in general if their use is deceptive; GIs on wines and spirits even without deception) and mandates negotiations on a registration/notification system for wines, a mandate extended to spirits in  the Doha Declaration (para 18).  The WTO made available proposals to establish such a system.

The obstacles are more apparent than real.  Companies such as food giant Kraft, which use many GIs (but not as GIs) on their products (Italian cheeses etc.) are afraid of the potential impact on their brands. However, preventing the United States and other New World countries from engaging will not prevent the establishment of GIs in other parts of the world, thus potentially restricting their export markets. It would be ironic to some if the US, a champion of IP protection had to argue against GIs in bilateral treaties, as seems to be happening in the TPP context. More importantly, the matter could be resolved by establishing a “new” register (either from scratch or with a  possibility for new members to challenge existing Lisbon entries) and/or grandfathering certain GIs as was done for wines in the EU-US Wine Pact (discussed here), and by removing the irritants mentioned above. This is one case where taking a hard look at preconceived notions might be useful.  




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