Geographical Indications

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14Dwijen Rangnekar - Geographical Indicationsmeasures exist in the Paris Convention to implementthis doctrine. The Madrid Agreement 9 broadens thescope of this doctrine to include ‘deceptive’ indicationsof source 10 . Deceptive indications are those that areliterally true, but nevertheless misleading:“… where two geographical areas, possibly in twodifferent countries, have the same denomination butonly one of them so far has been used for the purposesof an indication of source for certain products, and suchindication is used for products originating from theother geographical area in a way that the publicbelieves that the products originate from the first area… then such use is considered as a deceptive usebecause the public believes that the products originatefrom the geographical area for which the indicationtraditionally has been used.” (Baeumer, 1999, p17)Protection against the false and misleading use of GIs isprovided in the TRIPS Agreement through Article22.2(a), and Article 22.4 provides for the case of‘deceptive’ use of GIs. A higher level of protection forwines and spirits incorporating this doctrine exists inArticle 23.1 where there is no need to establish thepublic is mislead – instead, the indication cannot beused if the goods do not originate in the indicatedgeographical area (cf. Section 3.3).Protection Against Dilution of IGOsThis principle expresses a producer-protection ethosand introduces elements of unfair competition.There might be other uses of IGOs, which while not‘misleading the public’, are considered as ‘free riding’on the reputation of the products. In the sense that theprotected denomination is used in translated form, i.e.with additional information to convey the true origin ofthe product, e.g. ‘Californian Chablis’ (Dutfield, 2000for a discussion). This ‘free riding’ is considered to beagainst the ethics of honest commercial activity and issaid to dilute the reputation of the product. Under theParis Convention, such practices are protected againstby the principle of unfair competition (Article 10bis).The Lisbon Agreement 11 , in comparison to either theParis Convention or the Madrid Agreement, makesstronger provisions for the implementation of thisdoctrine in Article 3, viz.“Protection shall be ensured against the usurpation orimitation, even if the true origin of the product isindicated or if the appellation is used in translated formor accompanied by terms such as ‘kind’, ‘type’, ‘make’,‘imitation’ or the like.”In the TRIPS Agreement, the above doctrine is providedfor in two different articles. The provisions of the ParisConvention are to be found in Article 22.2(b). Theprovisions of the Lisbon Agreement are found in Article23.1 (cf. Section 3.3). While Article 3 of the LisbonAgreement is not circumscribed to any specific group ofproducts, Article 23.1 of the TRIPS Agreement explicitlyapplies to only wines and spirits. This difference may bea rare moment in the history of international protectionof intellectual property where the scope of applicationof a succeeding multilateral agreement is narrower thanits predecessor.
ICTSD-UNCTAD Project on IPRs and Sustainable Development153. THE TRIPS AGREEMENT AND GEOGRAPHICAL INDICATIONS3.1 Defining Geographical IndicationsGIs entered into international intellectual property lawwith its inclusion in the TRIPS Agreement – reflecting ingreat measure, if not entirely, the negotiating successof the European Communities (EC) and its memberstates. The interest of the EC and its member states inincluding GIs within TRIPS reflects their frustratedattempts in securing an international treaty on IGOsthrough the WIPO 12 . Notable are the following events:! Lisbon Conference for the Revision of the ParisConvention (1958)While the Paris Convention has border measures toprotect indications and appellations, the provisions areweak and do not cover misleading or deceptiveindications. An attempt to change the situation wasadvanced at the 1958 Conference, where the proposalwas to include the word ‘origin’ in Article 10bis (cf. Box4 for the definition).This would have made explicit theapplication of principles of unfair competition on IGOs.However, these attempts were defeated by one vote –the vote of the US (Conrad, 1996) 13 .These are but some of the events that preceded theinclusion of GIs in the TRIPS Agreement. Given theevident links between development at TRIPS and earliertreaties, it is imperative that we discuss notions of IGOsthat pre-existed the TRIPS Agreement. Here, ofparticular importance are notions like ‘indication ofsource’ and ‘appellation of origin’.The term ‘indications of source’ is used in the ParisConvention (articles 1[2] and 10) and the MadridAgreement, though there is no specific definitionavailable in either of the two treaties. However, aclarification of the notion is available in article 1(1) ofthe Madrid Agreement,“All goods bearing a false or deceptive indication bywhich one of the countries to which this Agreementapplies, or a place situated therein, is directly orindirectly indicated as being the country or place oforigin shall be seized on importation into any of the saidcountries.”! WIPO preparations for a new multilateral treatyon GIs (1974-75)In 1974, WIPO’s Committee of Experts developed a drafttreaty for the international protection of GIs 14 . Thisdraft became part of the basic proposal for the revisionof the Paris Convention and was provisionally numberedArticle 10quarter. The objective of the treaty was tomerge the pre-existing notions indications of source andappellations of origin within the new notion of GIs. Asthe Diplomatic Conference for the Revision of the ParisConvention did not conclude, the efforts to include GIswithin the Paris Convention remain unfulfilled. In 1975,WIPO also produced a Model Law on GIs for adoption bydeveloping countries (Blakeney, 2001).! WIPO’s Committee of Experts on GeographicalIndications (1990s)In 1990, WIPO’s Committee of Experts on theInternational Protection of Geographical Indicationsrevived its efforts for a treaty. Strong disagreementbetween different delegates stalled any substantivedebate and eventually led to the suspension of anyfurther deliberations.Two elements of the notion have been identified in theliterature (Baeumer, 1999; Hopperger, 2000; WIPO –International Bureau, 2001b) and we suggest a thirdelement. First, there is a clear emphasis on the linkbetween the ‘indication’ and the ‘geographical origin’of the product. In the sense, the emphasis is on thearea of geographical origin, i.e. through an indicationlike ‘made in …’, rather than any other criterion oforigin, such as say the manufacturing enterpriseproducing the product. Second, particularly incomparison to other IGOs, there is no suggestion thatthe qualities or characteristics of the products arederived from or essentially attributed to the place ofgeographical origin. In addition, according to thiscommentator, a third element to the notion isidentifiable, which has been incorporated into thenotion of GIs (see below). An indication of source maybe either constituted by words or phrases that directlyindicate the geographic origin of the product or beimplied indirectly through symbols, emblems orwords/phrases associated with the geographical area oforigin.
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