Geographical Indications

40Dwijen Rangnekar - Geographical Indications15 Here, note the analogy with patents (cf. Article 27[1]), where the definition sets out the conditions for grant ofprotection, viz. new, inventive step and industrial application.16 Here, take note of the explanatory note appended to India’s Geographical Indications of Goods (Registration andProtection) Act, 1999:For the purposes of this clause, any name which is not the name of a country, region or locality of that country shallalso be considered as the geographical indication if it relates to a specific geographical area and is used upon or inrelation to particular goods originating from that Country, region or locality, as the case may be.17 The TRIPs Agreement does not define any of these terms.18There are other factors that differentiate these three approaches to protect indications, such as the scope ofprotection and exceptions to the obligations. Such a comparison is outside the scope of this document, but it ispertinent for understanding the subject.19This deviation of GIs in TRIPS from appellations of origin is an incorporation of an aspect of the definition ofindications of source, where the requirement is for a ‘direct or indirect’ indication of the geographical origin of theproduct.20 Interestingly, Article 1(2) of the Lisbon Agreement makes a reference to ‘reputation’; however, we did not find anyspecific commentary on this observation. It might be the case that under the Lisbon Agreement, reputation is aconsequence of quality and characteristics of the product rather than an independent attribute of the product aswould be the case for GIs under TRIPS. Our investigations reveal that the specific inclusion of ‘reputation’ in Article22.1 of TRIPS did not exist in the December 1990 draft presented to the Brussels Ministerial Conference. Instead, thiswording is found in the consolidated text developed by Ambassador Anell (MTN.GG/NG11/W/76; reprinted in Gervais,1998). It is no surprise that wording of the TRIPS Agreement is consistent with and closely resembles the definitionof GIs in the EC Regulation on Geographical Indications (No. 2081/92 of 14 July 1992).21Venezuela explicitly raised this point with reference to the impasse on the debate concerning a multilateral systemof registration of GIs for wines and spirits (WT/GC/W/282).22 All Andean countries have regional legislation regarding collective trademarks and certification trademarks. Thiswas not notified expressively to the WTO but it is clearly regulated in articles 180 to 189 of the Andean Decision 486.See http://www.comunidadandina.org/ingles/treaties/dec/D486e.htm23For example, Hungary provides the TRIPS definition for products other than agricultural products and foodstuffs.Similarly, the EC and its Member states follow Article 22.1 in respect of agricultural products and foodstuffs with theadditional requirement that either production and/or processing and/or preparation take place in the definedgeographical area (2081/92).24 For example, in Ecuador an additional phrase “including natural and human factors” is introduced.25These countries include Belgium, Bulgaria, Italy, Mexico and Portugal.26 The survey states that “in some cases, this [the use of non-direct geographical names] is because the definitiondoes not exclude this possibility and in others because it is specifically included” (para 34).27 This is apparently the case for Australia in respect of wines and New Zealand.28The EC Regulation No. 2081/92 is notable here.29This requirement features in the following countries Australia (grapes), Canada (wines), EC (table wines), andSwitzerland (wines).30 In the US for wines, to qualify for protection, 75% of wine must be derived from fruit grown in the designated area.In some US states the requirement is higher, such as in Oregon where it is 100%.