Expanding the Protection of Geographical Indications of Origin under TRIPS: Old Debate or New Opportunity?
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Geographical indications of origin (GI), their definition, and rationale for protection have historically been the subject of heated debates in the international community. Countries have long quarreled about the extent of protection of "their" GI, that is, the names they used to identify products grown or manufactured on their soil. Fierce defenders of GI protection, European countries have traditionally advocated that GI should not be used by unrelated parties because GI identify the unique qualities, characteristics, and reputation of the products to which they are affixed; thus, should others use GI improperly, consumers would be confused as to the origin of the products. To this claim, the United States and other "new world" countries have generally responded by pointing out that many GI are generic terms on their soil, such as "champagne" or "Chablis," and, thus, consumers could not be confused as to the origin of the products identified by these terms. Accordingly, they have traditionally defended the right of their nationals to use foreign generic GI in their countries as they see fit. In the midst of this international debate, the adoption of the Agreement on Trade-Related Aspects on Intellectual Property Rights (TRIPs) in 1994 marked an important victory for the European approach because it established general minimum standards for GI protection for all of its signatories. Distinguishing it from any previous international agreement adopted by the international community at large, TRIPs required all signatories to establish minimal protections for GI through their national laws. In addition to this "minimal" protection, TRIPs also called for member countries to provide extra protection for GI that identify wines and spirits. Last, but not least, member countries also had to agree to TRIPs' "built-in agenda" to take part in future negotiations that would expand this enhanced protection for wines and spirits to other products. To accommodate "non-GIoriented countries," TRIPs allowed for certain exceptions, particularly with respect to words that were considered generic on their soil. Still, the overall tone of TRIPs on the issue was the result of the diplomatic activity of European negotiators who favored strong, expanding GI protection. Unsurprisingly, the adoption of TRIPs and its imposition of GI protection have not been "welcomed" in all member countries. The divergences that characterized the pre-TRIPs discussion on GI have continued to define the post-TRIPs consultations, particularly with respect to the modalities to implement the enlarged GI protection advocated for by TRIPs. As a result, negotiations to enhance GI protection have not yet produced the expected results, and diplomatic efforts seem to be at a standstill. This work briefly analyzes the issue of GI protection pre- and postTRIPs and considers whether extension of the protection set forth by TRIPs is desirable for the international community. It is not the purpose of this discussion, however, to provide a deep analysis of GI or to elaborate on the nature of GI and the validity of the theories for their protection. The work proceeds as follows: Part I provides a brief overview of GI, the traditional rationale for their protection, and the protection granted thereof before the adoption of TRIPs. Part II describes the status of the law under TRIPs and the failed diplomatic agenda to expand the current protection. Part III explores the recent developments on the debate on GI, particularly for wine and spirits, and considers whether the advantages of extending the current protection could outweigh the disadvantages of such an extension. Starting from the premise that enhanced GI protection in all areas could be more beneficial than detrimental for economic and agricultural development in most TRIPs countries, this work concludes by advocating for a "reasonable" expansion of the current GI protection among member countries of TRIPs.
