Geographical Indications: A Discussion on the TRIPS Regulation after the Ministerial Conference of Hong Kong
Fusco, Stefania, Marquette Intellectual Property Law Review
INTRODUCTION I. HISTORICAL BACKGROUND, DEFINITION, AND INTERNATIONAL REGULATION. A. Historical Background B. Definition C. The International Regulation of GIs II. THE MULTILATERAL REGISTER FOR WINES AND SPIRITS A. Background and Proposals 1. Background 2. The Proposals for the Multilateral Register B. The TRIPs Agreement 1. The Negotiations on the Protection of GIs before the TRIPs Agreement 2. Article 23(4) of the TRIPs Agreement C. Final Considerations 1. Brief Analysis of the Proposed Systems III. THE EXTENSION OF ARTICLE 23 OF THE TRIPS AGREEMENT TO GIS ON PRODUCTS OTHER THAN WINES AND SPIRITS A. Why Are GIs Needed in the First Place? B. The Debate about the Extension of Article 23 of the TRIPs Agreement 1. GIs as Generic Terms 2. Consumer Protection and Agricultural Policy. 3. Developing Countries and the Issue of Traditional Knowledge 4. Preservation of Culture 5. Costs of GI System 6. Imbalance Between Countries with Regard to Existing GIs C. Practical Perspective About the Extension of Article 23 of the TRIPs Agreement IV. GENERIC TERMS, PRE-EXISTING RIGHTS AND THE EU INITIATIVE TO RECLAIM THE EXCLUSIVE USE OF CERTAIN GIS A. The Issue B. Generic Terms and the Issue of Pre-Existing Rights CONCLUSION APPENDIX
The international regulation of Geographical Indications (GIs) on products is one of the most contentious issues in the international negotiations among World Trade Organization (WTO) member states. The discussion revolves mainly around three issues: (i) the creation of a multilateral register for wines and spirits, (ii) the extension of the higher level of protection already existing for wines and spirits to other products, and (iii) the European Union (EU) initiative to regain the exclusive use of certain GI names. The United States and the EU are the two main trading blocks that have set forth the opposing arguments that define the scope of this active debate. The purpose of this paper is to provide a thorough analysis of the most significant arguments presented by WTO delegates and scholars in support of or against the aforementioned issues. This project also represents an attempt to propose a policy recommendation for the solution of the conflict. This recommendation takes into consideration, to the largest extent possible, the interests of all the parties involved.
The regulation of GIs in the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement was the result of a significant compromise among the WTO member states in which the political and economic interests of each of the members was taken into account. The result was a hybrid discipline in which identifiers for similar products are treated in significantly different ways for no apparent logical reason. As part of this compromise, the WTO member states agreed in Article 23 of the TRIPs Agreement to negotiate the establishment of a multilateral system of notification and registration for wines and spirits. Several proposals have been presented over the years on this subject, and they can be generalized into two main themes of argument: one theme proposed by the EU and the other by the United States. The former proposes the creation of a multilateral register, whereas the latter supports the establishment of a voluntary database. From reading the TRIPs Agreement and the available unrestricted documents prepared during the negotiations, it is clear that the WTO member states, in entering the agreement, settled on the establishment of some kind of multilateral register for wines and spirits, and therefore, the EU proposal on this subject is more in line with the signatories' expectations. This multilateral register should not be forgone unless a more efficient system that serves the TRIPs purposes can be identified. …