GEOGRAPHICAL INDICATION

Jaba Shadrack, 2009

General introduction

A geographical indication (hereinafter G.Is) is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. G.Is may be used for a wide variety of products, whether natural, agricultural or manufactured. In some countries protection is granted by means of G.Is for viticulture and agricultural products, while in others, the economic interest of certain products has led to protection being given to non-agricultural products such as mineral waters, beers, porcelains and semi-precious stones. E.g. "Bohemia" is taken as a G.I in many countries for products made in the Czech Republic, particularly, crystal-ware.
The problem arises where names that are protected in one region have a common usage in another. For example, products such as Dijon mustard, Feta cheese, Champagne or Basmati rice are taken to have acquired a generic status. Thus, some may claim that these names should not belong exclusively to a specific group of producers in a specific geographic location as consumers expect these names to identify a class of product that can be produced in one of many locations.

QN. 1

Relevancies of G.Is for agricultural products

Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. In essence, a G.Is includes the name of the place of origin of the goods.

Commercially, G.Is are distinctive signs of "added value", since they provide a stable and particular level of quality, and endow the product with which they are linked with a number of qualitative features, as a result of which the product is accepted and distinguished by consumers worldwide.

QN. 2

How G.Is does?

A G.Is point to a specific place, or region of production, that determines the characteristic qualities of the product which originates from that place. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.
It is important that the product derives its qualities and reputation from that place.

They reflect the 'link' or 'bond' existing between a place and a product, the quality feature of which is connected to the geographical medium in which it is produced. Consumers are more demanding as to quality and origin of the different products they acquire, especially where, such features make them more reliable and attractive than other products.

QN. 3

Reasons for protection of G.Is

First, to protect the public from being misled by the goods suggesting to originate in a certain area, other than the true place of origin, this is due to the fact that G.Is are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations which, if not adequately protected, may be misrepresented by dishonest commercial operators. False use of G.Is by unauthorized parties is risky to consumers. Consumers are deceived into believing that they are buying a genuine product with specific qualities and characteristics, when they are in fact getting an imitation.

Second, to bar acts that amount to unfair competition or advantages as to the misuse of G.Is, consequently, legitimate producers are deprived of valuable business and the established reputation of their products is damaged.

QN. 4

Differences [and similarities] of G.Is and trade marks

Trade marks and G.Is are intellectual property rights, they are trade distinctive signs, but there are several differences between the two, particularly concerning the legal regime and juridical nature. They share the same principles that are common to all intellectual property rights, but with some specialties. G.Is and trade marks are two very interesting signs to put side by side, but the balance between them does not allow an indifference choice.

A trademark is a sign, which is used in the course of trade, and it distinguishes goods or services of one enterprise from those of other enterprises.

Whereas a G.I is an indication used to identify goods having special characteristics originating from a definite geographical territory. It gives its owner the right to exclude others from using the trademark. A trademark will often consist of an imaginary or arbitrary name or device. Whilst a G.I tells consumers that a product is produced in a certain place and has certain characteristics that are due to that place of production. It may be used by all producers who make their products in the place designated by a G.I and whose products share specified qualities. The name used as a G.I will usually be determined by the name of the place of production; this is not the case with trade marks.

The registration of G.Is as trademarks is regulated by the general principles of trademark law. 

According to these principles, G.Is becomes part of the public domain. In principle, immediate G.Is (e.g. names of cities, regions) can not be registered as trademarks. According to the Chiemsee decision of the European Court of Justice, this applies both insofar as such G.Is may be associated with the claimed group of goods by the relevant public, and insofar as there is a future need to keep the G.I free for widespread use.

QN. 5

Introduction

G.Is are protected in accordance with international treaties, national laws, and regional agreement under a wide range of concepts, including; special laws for the protection of G.Is or appellations of origin; trademark laws in the form of collective marks or certification marks; laws against unfair competition; consumer protection laws, and specific laws or decrees that recognize individual G.Is. In essence, unauthorized parties may not use a G.I in respect of products that do not originate in the place designated by that indication. Applicable sanctions range from court injunctions preventing the unauthorized use, to the payment of damages and fines or, in serious cases, imprisonment.

(1) Protection of G.Is at regional level

There are various protection mechanism adopted by different regional blocks, i.e., continental arrangements.

Under European Union Law, the protected designation of origin system which came into effect in 1992 regulates the following geographical indications; protected designation of origin (PDO) and protected geographical indication (PGI) and Traditional Specialty Guaranteed (TSG).

See also, the Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

Over 13 countries in Asia (such as Mongolia, North Korea, Thailand or Vietnam among others) have established sui generis protection systems for G.Is in the last five years. On the same line, since 2000 over 12 countries from North and Latin America have adopted a sui generis system for protection of G.Is, namely Colombia, Venezuela, Cuba or Costa Rica. In Africa it is not clear yet; however, some authors have suggested that such protection may be found in ARIPO and OAPI arrangements.

(2) Protection of G.Is at international level

Various conventions under the auspices of WIPO provide for the protection of G.Is, namely as Paris Convention for the Protection of Industrial Property of 1883, and the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration. In addition, Articles 22-24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with the international protection of G.Is backed by the World Trade Organization (WTO).

Another multilateral protection is under OriGIn, launched in Geneva on June 11, 2003, by producers of G.Is from Africa, Asia, Latin and North America, Eastern and Western Europe. OriGIn is an NGO headquartered in Geneva (Switzerland) and, Secretariat in Alicante (Spain). Basically, it brings together producers from both developed and developing countries that want to enjoy an efficient G.Is protection worldwide.

REFERENCES

• G.E. Evans, and Michael Blakeney,
  Protection of Geographical Indications after Doha: Quo vadis? Journal of International Economic Law, July 12, 2006, [doi: 10.1093/JIEL/jg1016]
  
• Jorge Larson,
  Relevance of Geographical Indications and designation of origin for the Sustainable use of Genetic Resources (2007), The study commissioned by the 'Global Facilitation Unit for Underutilised Species', Rome-Italy.