geographical indications (gis): a tool to promote sustainable development massimo vittori secretary...
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Geographical Indications (GIs): a tool to promote
sustainable development
Massimo Vittori
Secretary General,
oriGIn
Summary
I. Definition and socio-economic impact of GIs
II. The protection of GIs at the national level
III. The international legal framework
IV. The role of oriGIn
V. Some conclusions
Definition
“Geographical indications are, ..., indications which identify a good as originating in the territory ..., or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” (TRIPS, Article 21.1)
Economic and social impact of GIs
Local development, preservation of traditions and job creation
Spill over effects (environment, gender, tourism, etc.)
Marketing through differentiation
Globalization has generated a niche of more conscious and demanding consumers
Reduced transition costs for consumers
Trade regulations are shifting towards greater traceability requirements
Rights conferred to right holders
GIs as a peculiar asset of intellectual property rights:
“Light monopoly”: exclusive rights on a name not on a product
No risks of preventing innovation or slowing-down economic development
“Collective rights”: GIs are managed by several producers (within a given territory/community), not to a single economic actor
GIs: a “development friendly tool”
Collective rights: several producers within the same geographic area/community have to join forces and establish a common platform
Collaborative approach throughout the life of a GI (economies of scale)
GIs are an ideal tool for small producers that,
by themselves, would never be able to reach
out to markets
No delocalisation of production
Low/medium level of innovation for GI products: labour intensive for which developing economies hold a competitive advantage
GIs vehicle to protect Traditional Knowledge and biodiversity
GIs as global phenomenon
Potential GI products in Sudan
• Agricultural products:
- Camel meat
- Camel milk
• Handicrafts:
- Traditional clothes (“Jalabia” and “Thobe”)
- Traditional paintings, pottery
GI protection at the national level
Legal vehicles
1. Sui generis
2. Trademarks and certification marks
3. Unfair competition and consumer protection / Passing off
1. Sui generis systems
- Specific system to protect GIs as such through registration
- Strong protection of the geographical name used in translation, evocation, etc.
- Certain level of public involvement in enforcement (ex officio) and controls
- Example: EU system (EC Regulation 510/06, EC Regulation 479/2008 and EC Regulation 110/2008)
The EC Regulation 510/2006 on the protection of GIs and DOs
for agricultural products and food staff
- From the 1992 Regulation to the 2006 Regulation
- Role of producers’ associations
- DO + GI (art.2)
- Rights conferred (art. 13): strong protection
- Certain level of public involvement in enforcement (ex officio) in light of EC Regulation 1383/2003 on Customs Controls as well
2. Trade marks: preliminary considerations
- Need of distinctive character
- Cannot be used to register a geographic name, except it has acquired a secondary meaning
2. Certification Marks (CM)
- CM indicate that goods or services for which they are used have qualities or characteristics that are certified by its owner
- CM are given for compliance with a defined standard
set by the certifier (can be used to certify a specific geographical origin)
- CM not usable by the owner
- Example: US system (US Lanham Act)
CMs v. GIs
CMs
MAY certify origin
Individual control
Can be produced anywhere
Protection must be renewed periodically
High cost of protection : +/- 1,500 to 2,000 € per class and per CM
GIs
MUST certify origin
Collective control
Production must be rooted in a region
Illumined protection after first registration
Limited registration costs
CMs v. GIs
CMs
• Scope of protection:- In principle, no protection for
the name used in translation and used with expressions like “style”, “type”, etc. or single names
- Right on the name only if used
- No guarantee against “genericity”
Enforcement: Private (more
expensive)
GIs
Scope of protection:– Automatic protection for the
name used in translation, evocation and used with expressions like “style”, “type”
– Right on the name even if not used
– Guarantee against “genericity”
Enforcement: Mix of public & private (ex officio), reduced costs for producers
The international legal framework
i. The main international treaties dealing with GIs
- Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration
- WTO TRIPS Agreement
ii. Proliferation of bilateral and regional agreements - Need of a “minimum level playing field”- Problem of transparency for small GI producers
The Lisbon Agreement
• Definition of AoO (art. 2)
• National Protection + International Registration (WIPO) + Protection in contracting parties (1-year period for oppositions)
• Protection against usurpation and imitation, even if the true origin of the product is indicated, and even in translated form or used accompanied by «kind», «type», «imitation», or the like (art.3)
• It prevents the risk for a geographical name to become “generic”, as long as it is protected in the country of origin (art. 6)
Limits of the Lisbon Agreement
• Limited numbers of contracting States (26)
• Restrictive definition of AoO (is reputation a
constituting element for a product to qualify for protection??)
TRIPS
The two levels of protection for GIs
• Standard protection of Article 22 for all products, protection only if: – Public is misled by the use of the GI– Incorrect use of the GI constitutes an act of unfair competition
• Additional protection of Art. 23 for wines and spirits: – Protection against a simple usurpation of the GI– Protection of the GI even if translated– Use of delocalizing expressions such as ‘kind’, ‘type’,
‘style’, ‘imitation’ or the like are prohibited– “Mandate” for negotiating a multilateral Register
Misleading marketing techniques
“Prosciutto di Parma” ... made in Canada
“Pruneaux d‘Agen” ... from Canada
“Basmati Rice” ... made in the USA
Long Grain American Basmati Rice
“Turron de Jijona” ... from Argentina
“Parmigiano Reggiano” ... from Mexico
Current negotiations within the WTO’s DDA
a. Extension of art. 23 of TRIPs to all products
– Art. 22 does not prevent free-riding on the reputation and image of well-known GIs: reputation of traditional products is tarnished + loss of potential markets
– No legal certainty/predictability (national jurisdictions might differ on whether the public is misled or not)
– Discrimination (“first class” / “second class” products): No socio-economic reasons justify such discrimination between the majority of GI producers and those dealing with wines and spirits
– DDA: “ ....the need for all our people to benefit from the increased opportunities and welfare gain that the multilateral trading system generates”
Current negotiations within the WTO’s DDA
B. Multilateral register
Objectives: - Help producers to protect their GIs worldwide- Help judges and administrative authorities when taking decisions on
GIs/trademarks registrations
Key questions: - Scope (products covered): should cover all products - Participation: should be truly “multilateral” (art. 23.4 of TRIPS)- Legal effects: should not be a mere database
Draft modalities on TRIPS, July 2008
• The extension of art. 23 to all GI (including the extension of the Register);
• A multilateral Register:
- binding for all WTO members
- voluntary notifications of GIs (to be carried out by Member States)
- No opposition
Draft modalities on TRIPS, July 2008
Register’s legal effect :
Each WTO Member will have to provide that domestic authorities consult the Register and take its information into account when making decisions regarding registration and protection of trademarks and geographical indications in accordance with its domestic procedures. In the framework of these procedures and in the absence of a proof to the contrary, the international registration of a GI will be considered as a prima facie evidence that, in the Member where those procedures are under way, the geographical indication at issue meets the definition of "geographical indication" laid down in TRIPS Article 22.1. Moreover, any assertion on the genericness exception laid down in TRIPS Article 24, will have to be considered by domestic authorities only if these are substantiated.
The role of
• OriGIn - Organisation for an International Geographical Indications Network
• When? created in 2003
• What? first international organisation (NGO) of GI producers
Objectives
Producers from all over the world joined forces:
Advocacy campaigns for an effective international legal system for protecting GIs
Promotion of GIs as a tool for sustainable development
Platform for worldwide GI producers and experts: exchange of “best practices” + dissemination of information
oriGIn today:
• Some 85 organizations of producers
• Over 35 countries
• Representing more than 2-million GI producers
Membership
– Full Members: associations/groups of GI producers
– Associate members: persons/organisations interested to promote oriGIn’s goals
Type of products
Food products: Coffee, tea Rice Cheese, butter,… Ham, sausage,… Fruits, vegetables,… Pastry
Other Wines Spirits
Non-food products:
• Carpets• Watches• Cigars• Artisanal products, etc.
President
Luis Fernando Samper
(Colombia)
North Africa
&Middle
EastZ.Charrouf
(Morocco)
Sub-Saharan
AfricaAgnes Nyaga
(Kenya)
Asia
Zheng
Weihua(China)
Brig. Anil
Adhlaka(India)
North Am.
Ramón Glez.
Figueroa(Mexico)
Central Am.
de la Grana(Cuba)
South Am.
Carlos Mejia(Peru)
Eastern Europe
Tomislav Galovic(Croatia)
Western Europe
Stefano
Tedeschi (Italy) J. Enrique Garrigos
(Spain)
Decentralised structure: VPs
in action
Partnerships
Technical assistance
Advocacy campaigns
Awareness on GI abuse
Updated information for our members
Research projects and studies
International events
Some conclusions
- Important socio-economic role played by GIs
- Problems of small producers: enforcement of rights (costs + legal advice)
- Sui generis systems better guarantee producers’ interests
- Need to strengthen the multilateral legal framework (TRIPS Modalities in the Doha Round + reform of the Lisbon Agreement)
