Geographical Indications

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vielicited great concern over its pervasive role in people’s lives and in society in general.Developing country members of the World Trade Organization (WTO) no longer have the policyoptions and flexibilities developed countries had in using IPRs to support their nationaldevelopment. But, TRIPS is not the end of the story. Significant new developments are takingplace at the international, regional and bilateral level that build on and strengthen the minimumTRIPS standards through the progressive harmonisation of policies along standards oftechnologically advanced countries. The challenges ahead in designing and implementing IP-policyat the national and international levels are considerable.Empirical evidence on the role of IP protection in promoting innovation and growth in generalremains limited and inconclusive. Conflicting views also persist on the impacts of IPRs in thedevelopment prospects. Some point out that, in a modern economy, the minimum standards laiddown in TRIPS, will bring benefits to developing countries by creating the incentive structurenecessary for knowledge generation and diffusion, technology transfer and private investmentflows. Others stress that intellectual property, especially some of its elements, such as thepatenting regime, will adversely affect the pursuit of sustainable development strategies by raisingthe prices of essential drugs to levels that are too high for the poor to afford; limiting theavailability of educational materials for developing country school and university students;legitimising the piracy of traditional knowledge; and undermining the self-reliance of resourcepoorfarmers.It is urgent, therefore, to ask the question: How can developing countries use IP tools to advancetheir development strategy? What are the key concerns surrounding the issues of IPR fordeveloping countries? What are the specific difficulties they face in intellectual propertynegotiations? Is intellectual property directly relevant to sustainable development and to theachievement of agreed international development goals? Do they have the capacity, especially theleast developed among them, to formulate their negotiating positions and become well-informednegotiating partners? These are essential questions that policy makers need to address in order todesign IPR laws and policies that best meet the needs of their people and negotiate effectively infuture agreements.It is to address some of these questions that the joint UNCTAD-ICTSD Project on IntellectualProperty and Sustainable Development was launched in July 2001. One central objective has beento facilitate the emergence of a critical mass of well-informed stakeholders in developingcountries - including decision makers, negotiators but also the private sector and civil society -who will be able to define their own sustainable human development objectives in the field of IPRsand effectively advance them at the national and international levels.Ricardo Meléndez-OrtizICTSD Executive DirectorRubens RicuperoUNCTAD Secretary General
ICTSD-UNCTAD Project on IPRs and Sustainable Development1EXECUTIVE SUMMARYMarks indicating the geographical origin of goods are the earliest types of trademarks andwere established to differentiate goods that possessed some unique quality reflectingenvironmental factors or processing methods or manufacturing skills. These marks have stronggeographical motifs that include the depiction of local animals (panda beer), landmarks (Mt.Fuji sake), buildings (Pisa silk), heraldic signs (fleur de lys butter) or well-known personalities(Mozart chocolate). Even while earlier multilateral treaties involving indications ofgeographical origin (IGOs) have existed, the TRIPS Agreement seeks to establish newstandards and norms; it also introduces a new category of IPRs – geographical indications(GIs).Our research demonstrates that a range of countries have protected GIs and that theEuropean Communities (EC) 1 and their Member States possess the largest and most diverseportfolio of GIs (Box 1). However, unlike any other instrument of intellectual propertyprotection in the TRIPS Agreement, demandeurs include developing countries and EasternEuropean countries (Box 2). These demandeurs seek to expand the scope of application ofArticle 23 to products other than wines and spirits and thus remove the hierarchy in the levelof protection that currently exists in Section 3 of Part II of the TRIPS Agreement. This matter,widely referred to as GI-extension, cuts across a range of issues that include protection ofindigenous knowledge, sustainable development, and promotion of agri-rural development.This paper critically analyses the submissions to the TRIPS Council on GI-extension. The studybegins with an overview of the legal doctrines that frame and rationalise the protection of GI.Here, we draw attention to the two central pillars, viz. protection against the misleading useof indications and protection against dilution of an indication. This is followed by a discussionof Section 3 (Part II) of the TRIPS Agreement. Here, we provide a brief overview of eacharticle in Section 3. In addition, the discussion also analyses the definition of GIs (Article22.1) and relates it to other IGOs like ‘indication of source’ and ‘appellations of origin’. Theanalysis of Section 3 is completed by a comparative analysis of the protection offered underArticle 22 with that provided by Article 23. It is this hierarchy in protection that forms thekey basis for demanding GI-extension. The final section reviews the submissions to the TRIPSCouncil on GI-extension. Our analysis identifies and reviews three sets of issues: (a) theUruguay Round balance, (b) the sufficiency or inadequacy of Article 22 and (c) the potentialcosts and implications of GI-extension.Doctrines for Protecting <strong>Indications</strong> of <strong>Geographical</strong> OriginThe rationale for protecting IGOs is found to be similar to that for other IPRs, in particulartrademarks, and is based on the public good properties of knowledge/information and theharm resulting from ‘free riding’ on reputation. In the case of trademarks it is argued that
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Geographical Indications

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