Geographical Indications in the 21st century - what, when and how? A Critical Review of the Legal Framework for GI Protection and GI-Related Trade in the International Community
Abstract: Intellectual property is a very important type of asset in today’s business world. Since business in the Western World grows increasingly based and dependent on know-how and technological development, intangible assets such as trademarks, copyrights and patents plausibly represent greater economic value to economic actors here than other, physical, assets do. Although it is comparatively unknown, another category of intellectual property – Geographical Indications – shall be added to this enumeration. GIs are various indications (most likely, but not limited to, a place name) that communicate the geographic origin of the goods. Plausibly, the best well-recognised GI in the world is Champagne. GIs constitute yet another intellectual property tool by which economic actors can distinguish themselves and their goods from those of competitors. The possibility to do so becomes increasingly important as competition in the international business climate consistently grows fiercer. In addition, goods that are labelled with GIs sell at premium prices, enabling producers to obtain greater profits. GIs have also been identified as a means to encourage economic growth in developing countries. Based on the notion of terroir, i.e. the idea that products with a certain geographical origin embody certain unique, desirable qualitative features, GIs are a type of collective monopoly. According to a strict adherence of the terroir principle, only products that have the specific geographic origin embody these special features, why only these products should be allowed to carry the GI in question. The EU is the world’s primary proponent of GI protection, because countless European products benefit from GI labelling. The U.S. and others, on the other hand, strongly oppose GI protection, and GIs are provided a significantly weaker protection there than in the EU. In essence, there is no international consensus regarding the protection that GIs are to be afforded. The principal international legal framework for GIs is TRIPs, but it seems as though neither side to the debate are satisfied with the present situation. The EU pushes for stronger international GI protection and recognition, while the U.S. et al. advocate limited protection (or no protection at all). These discrepancies in perspective result in the provisions concerning GI protection in TRIPs being inconsistently adhered to, which causes significant disharmony in the market. Producers of GI labelled goods in the EU see their GIs being used by producers in the U.S. every day, even though these producers do not have the prescribed geographical association with the GI region. It is asserted that this wrongful use of GIs cause producers in the EU to lose significant amounts of money. Consequently, it is important that the protection of GIs is becomes uniformly regulated, in order for producers to benefit fully from GIs’ potential. This thesis analyzes the current international legal landscape, and finds that the current rules are designed in a manner that allows GI-opposing countries to ignore all requests from the EU to provide better protection for GIs. The legislation in the EU and the U.S. concerning GI protection is also analysed and compared, finding that the different frameworks do not reciprocate; the EU affords GIs far-reaching protection, while the U.S. offers protection for a small number of GIs, based on regulations from primarily trademark law. Some of these differences are tended to by way of bilateral agreements that regulate trade in goods carrying a GI and stipulate rules that complement those found in e.g. TRIPs. Thus, there are bi- and multilateral agreements as well as regional/domestic legislation for the protection of GIs. However, the inconsistent treatment of GIs undermines all possibilities for producers to benefit from such labelling. This is detrimental for developed as well as developing countries. Clearly, therefore, the frameworks by which GIs are protected need to be redesigned. Evidently, the EU will not desert its claims for GI protection easily, and the U.S. will not grant protection for GIs (which come primarily from Europe) without somehow benefitting itself. It is a delicate situation, and to establish uniform GI protection in the future will require much international negotiation. It is nevertheless imperative that the rules become harmonized and that they are adhered to, for producers of GI labelled goods and the countries in which these reside to be able to benefit fully from the economic aspects of GIs.
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