Geographical indications law

A geographical indication ismark -- usuallyname ofplace such astown orcountry -- that indicatesorigin ofgood. 'Champagne' isgeographical indication forsparkling wine manufactured inFrench provinceChampagne.

In many countries, geographical indications (GI's) may be protected by lawmuchsame waywhichtrade-markprotected by law. This legal protection restrictsuse ofnameidentifyparticular typeproduct unlessproduct meets certain criteria; basically thatproduct was indeed made inplace named, or sometimes from materials sourced inplace named.

Sometimes these laws also stipulate thatproduct must meet certain quality tests thatadministered by an association that ownsexclusive right touse ofname or mark. For example,qualifyusename 'Rocquefort', cheese must be made from milk ofcertain breedsheep,maturedcaves neartownRocquefort inAveyron regionFrance where it'infected' withspores (Penicillium Roqueforti) ofmushroom that growsthose caves.

Some governments have been protecting'brand' nameslocal produce since at leastend ofnineteenth century using laws against unfair competition or 'passing-off'; that is, misleadingconsumer by falsely suggesting thatproduct hascertain origin or quality whendoes not. The consumer protection benefit was consideredreasonacceptlimitation on competitive freedoms; specifically,grant ofmonopoly use ofmark orname.

The system usedFrance fromearly part oftwentieth centuryknown as'appellation d'origine contrôlée' (AOC). Items that meet both geographical originquality standards may receive this government-issued stamp that provides official confirmation toconsumer. Examplesgoods that have 'appellationsorigin' include 'Tequila', 'Jaffa' (oranges)'Bordeaux'wines.

The consumer-benefit purpose ofmonopoly rights granted toowners ofGImuchsamepurpose oftrademark monopoly right. Geographical indications have other similaritiestrademarks, too. They must be registered,example,orderqualifyprotectionthey must meet certain conditionsorderqualifyregistration. One ofmost important conditions that most governments have required before registeringname as GIthatname must not already bewidespread use asgeneric name forsimilar product. Of course, whatconsideredvery specific term forwell-known local specialtyone country (for example, 'parmagiano' cheeseItaly) may be'generic term'that typeproduct (known as 'parmesan' inUnited States or Australia)other countries.

Like other formsintellectual property, geographical indicationsregulated locally by each country because conditionsregistration such as differences ingeneric useterms vary from countrycountry. Thisespecially truefoodbeverage names which frequently use geographical terms. But italso truecarpets ('Shiraz')other handicrafts andflowers perfumes.

International trade madeimportanttryharmonizedifferent approachesstandards that governments usedregister GIs. The first attemptsdo so were found inParis Convention on trademarks (1883), followed bymuch more elaborate provision in1958 Lisbon Agreement onProtectionAppellationsOrigintheir Registration. Few countries joinedLisbon agreement, however: by 1997 there were only 17 members (Algeria, Bulgaria, Burkina Faso, Congo, Cuba, Czech Republic, France, Gabon, Haiti, Hungary, Israel, Italy, Mexico, Portugal, Slovakia, Togo, Tunisia). About 170 geographical indications were registered by Lisbon Agreement members as1997.

TRIPS Provisions

In 1994, when negotiations onWTO Agreement on Trade-Related AspectsIntellectual Property Rights ("TRIPS") were concluded, governmentsall WTO member countries (148 countries asSeptember, 2003) had agreedset certain basic standards forprotectionGIsall member countries. There are,effect, two basic obligations on WTO member governments relatingGIs inTRIPS agreement:

1. Article 22 ofTRIPS Agreement says that all governments must provide legal opportunitiestheir own laws forowner ofGI registeredthat countrypreventusemarks that misleadpublic as togeographical origin ofgood. This includes preventionuse ofgeographical name which although literally true "falsely represents" thatproduct comes from somewhere else.
2. Article 23 ofTRIPS Agreement says that all governments must provideownersGIright, under their laws,preventuse ofgeographical indication identifying wines not originating inplace indicated bygeographical indication. This applies even wherepublicnot being misled, where thereno unfair competitionwheretrue origin ofgoodindicated orgeographical indicationaccompanied by expressions such as "kind", "type", "style", "imitation" orlike. Similar protection must be givengeographical indications identifying spirits.

Article 22TRIPS also says that governments may refuseregistertrademark or may invalidate an existing trademark (if their legislation permits or atrequestanother government) ifmisleadspublic as totrue origin ofgood. Article 23 says governments may refuseregister or may invalidatetrademark that conflicts withwine or sprits GI whethertrademark misleads or not.

Article 24TRIPS providesnumberexceptions toprotectiongeographical indications thatparticularly relevantgeographical indicationswinesspirits (Article 23). For example, Membersnot obligedbringgeographical indication under protection wherehas becomegeneric termdescribingproductquestion. Measuresimplement these provisions should not prejudice prior trademark rights that have been acquiredgood faith; and, under certain circumstances - including long-established use - continued use ofgeographical indicationwines or spirits may be allowed onscalenature as before.

InDoha Development RoundWTO negotiations, launchedDecember 2002, WTO member governmentsnegotiating oncreation of'multilateral register'geographical indications.

Some governments participating innegotiations (especiallyEuropean Communities) wishgo furthernegotiateinclusionGIs on products other than winesspirits under Article 23TRIPS. These governments argue that extending Article 23 will increaseprotectionthese marksinternational trade. This iscontroversial proposal, however, thatopposed by other governments includingUnited States who questionneedextendstronger protectionArticle 23other products. Theyconcerned that Article 23 protectiongreater than required,most cases,deliverconsumer benefit that isfundamental objectiveGIs laws.