Geographical Indications

ICTSD-UNCTAD Project on IPRs and Sustainable Development213.2 Overview of GIs in the TRIPS AgreementSection 3 of Part II of the TRIPS Agreement containsprovisions for the protection of GIs and through its threearticles sets out the definition of subject matter, theminimum scope of protection, additional protection forwines and spirits, exceptions to the obligation andprovisions for further negotiation and review (Table 2).Here we provide a brief discussion of each of thearticles.Table 2: Section 3 (Part II) of the TRIPS AgreementAreas Article 22 Article 23 Article 24Definition ofSubject Matter22.1 – provides a definitionfor GIsBasic Protection22.2-22.4 – outlines the basicscope of protection for GIsfor all goods other thanwines and spiritsAdditionalProtection forWines and Spirits a23.1 and 2 – outlines theadditional protectionavailable exclusively forwines and spiritsExceptions toObligationsProvisions forFurtherNegotiations23.4 – obligation to enterinto negotiations forestablishing a multilateralregister for wine GIs24.3-24.9 – outlinesexceptions to obligations forprotecting GIs24.1-24.2 – sets up provisionsfor further negotiationsa There are differences between the protection available for wines and that available for spirits. Article 23.3 (homonymousindications) applies only to wines. Article 23.4 (multilateral register) was originally directed at wines and has since been extended toinclude spirits. Section 3.3 below discusses these differences in the level of protection.Definition of Subject Matter (Article 22.1)This article provides a definition of the subject matterto be protected, i.e. GI, and simultaneously also setsout the conditions for grant of protection. As such, toqualify for protection, an indication must (i) identifythe good and its area of geographical origin, (ii) possessa given quality, reputation or other characteristics,which (iii) is essentially attributable to its area ofgeographical origin. The definition should be analysed incomparison to other IGOs, viz. indications of source andappellations or origin (section 3.2).Basic Protection (Article 22.2-22.4)Article 22 provides the basic scope for the protection ofall GIs, where the obligation is for Members to providethe ‘legal means for interested parties’ 31 to secureprotection of their GIs. The required ‘legal means’ areunspecified, as is the similar obligation for ‘legalmeans’ under Article 23, which raises the problem ofmultiplicity of systems of protection, but also presentan opportunity to Members to explore alternativemechanisms 32 . As such, much like other obligations inTRIPS, members are “free to determine the appropriatemethod of implementing the provisions of thisAgreement within their own legal system and practice”while remaining in compliance with their obligation(Article 1.1).Under Article 22, the scope of protection is composed ofthree components 33 :! protection against the use of indications thatmislead the public (paragraph 2(a)) or is deceptive(paragraph 4)! protection against the use of indications in amanner that constitute acts of unfair competition(paragraph 2(b))! refusal or invalidation of trademarks that containor consist of indications, in a manner that misleadsthe public (paragraph 3)