Structure
1 Introduction
2 Objectives
3 Origin And Evolution Of Geographical Indication
1 INTRODUCTION
The purpose of this unit is to
provide background information on Geographical Indications, particularly
referring to its origin, system of protection at the national and regional
levels, including the international legal framework governing these rights.
A Geographical Indication (GI) is
a sign identifying goods that have a specific geographical origin in the
territory of a particular country, a region or locality in that country and are
claimed to possess qualities, characteristics and reputation attributable to
that place of geographical origin. Broadly, Geographical Indication (GI) is an
exclusive right, collective in nature, designated to protect goods in trade
bearing the geographical name or symbol linked to its place of origin. These
rights are essentially for public good as they have their reputations built
collectively over generations.
The other existing definition of
Geographical Indications (GIs) describes them as geographical names, symbols or
icons conveying geographical information. E.g. Manchego, Roquefort, Champagne,
Florida Oranges, Proscuitto di Parma, New Zealand lamb, Czech Crystal, Swiss
Watches etc. Nevertheless, non geographical names can also be protected if they
have a rich traditional and historic background to which their reputation can
be attributed to. The most famous examples for such a GI is “Feta” which is not
a place in Greece but is so closely connected to Greece as to identify a
typical Greek product. From these definitions, it can be deduced that there are
three major criteria’s for the recognition of a sign as a Geographical
Indication; the three criteria’s being:
- · Recognition of a product as a “good”;
- · Origination of these goods from a defined area; and
- · Association of these goods with qualities, reputation and other characteristics which are linked to the geographical origin of goods.
The term Geographical Indication
has been often, loosely and interchangeably used with “indications of source”,
“appellations of origin”, “designation of origin” etc. However, these
terminologies carry the weight of unique definitions and interpretations when
viewed from a legal perspective and associate a GI protected good with an
altogether unique identifier, discussed now in the document in detail.
a 1) Indications of Source: The term
“Indications of Source” refers to an indication to a country, or to a place in
that country, as being the country or place of origin of a product. The term
finds the explicit definition throughout the Madrid Agreement for the
Repression of False or Deceptive indications of Source on goods of 1891, which
reads as:
“All goods bearing a false
or deceptive indication by which one of the countries to which this agreement
applies, or a place situated therein, is directly or indirectly indicated as
being the country or place of origin shall be seized or importation into any of
the said countries”.
In other words, it
typically identifies that a product has been produced in a particular location.
There is no other international regime defining “Indications of Source” so
outwardly, though it is briefly discussed and used in Article 1(2) and 10 of
the Paris Convention for the Protection of Industrial Property of 1883.
Examples of Indications of Source, implying the mention of a name of a country
or origin of a product can be any agricultural commodity such as wine,
processed meat or cheese; or a typical handicraft material, for say Thai Silk.
2) Appellation of Origin: The term
“Appellation of Origin” (A.O.O.) identifies a particular product with a
“quality”; an essential attribute missing with “Indications of Source”. While
the “Indications of Source” dictates a mere association of a product with a
place of origin, “Appellation of Origin” necessarily signify quality with a
product. Alternately, the product for which “Appellation of Origin” is used
must have a quality and characteristics which are due exclusively or essentially
to its origin. It is therefore well received that goods having a mere
reputation, but quality, due to their place of origin are not covered under
Appellation of Origin.
A.O.O. traces its origin
from the European vineyards, somewhere in 19th century, out of a
perceived need to provide a remedy against fraudulent commercial practices
involving the origin of agricultural products, in particular wine.
The Lisbon Agreement for
the protection of Appellation of Origin of 1958 concluded within the framework
of the Paris Convention deal with the protection of A.O.O. in its Article 2(1)
which reads as:
“Appellation of Origin
means the geographical name of a country, region, or locality which serves to
designate a product originating therein, the quality and characteristics of
which are due exclusively and essentially to the geographical environment,
including natural and human factors.”
This is a special kind of
GI consisting essentially of a geographical name or a traditional designation
used on products having a specific quality or characteristics that are
essentially due to geographical environment in which they are produced.
Additionally, A.O.O. is explicitly mentioned as objects of industrial property
protection under Article 1(2) of the Paris Convention. The recognition of a
protected appellation is usually based on a legislative or administrative act,
such as a law or a decree which also takes into consideration the geographical
area of production and conditions of use.
Examples for Appellation
of Origin are “Bordeaux” for wine, “Noix de Grenoble” for nuts, “Tequila” for
spirit drinks or “Jaffa” for oranges, “Habeina” for tobacco.
Comparative Analysis
between “Indication of Source”, “Appellation of Origin” and “Geographical
Indication”: Among the three frequently and interchangeably used
terminologies for protection of goods of geographical origin, the term
“indications of source” is the broadest interpreted term. It comprises both of geographical indication and appellation of origin. The reason being that the mere
requirement of the product to be associated with a certain geographical area in
case of “indication of source”; while the “appellation of origin” implies a
particular quality, reputation or characteristic to be associated with a
product of geographical origin which needs protection.
On the contrary, GI means
the name of region, a specific place or in exceptional cases, a country used to
describe an agricultural product or a foodstuff originating in that region,
specific place or country and which possess a specific quality, reputation and
other characteristics attributable to that geographical origin and the
production and/or processing and/or preparation of which take place in the
defined geographical area. It may be used for a wide variety of agricultural
products, including Champagne (France); Roquefort (cheese of France);
Mozzarella (buffalo cheese of Italy); Tuscany (olive oil of Italy).
Geographical Indication are deemed to be protected even where the true
origin of the goods is indicated or the GI is used in translation or
accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the
like. Further, GI are more broadly defined than appellation of origin. To be
clear, all A.O.O. are G.I., but some GI’s are not A.O.O. Though similar, GI’s
differ from A.O.O. with regard to the scope of protection and the application
procedure may exist depending on the domestic laws of country which confers
that type of protection. Therefore, protection of a registered GI depends on
the registration of that GI, whereas the protection of A.O.O. is subjected to
the adoption of a specific national law or decree.
2 OBJECTIVES
The main purpose of GI protection
is to avoid the risk of “free riders” who do not respect the quality,
characteristics and reputation of a GI protected good. The major function
therefore is identification of origin of goods as these products derive their
unparalleled qualities and high reputation and commercial value from these
places of origin. In order to prevent exposure of such high quality and
enriched goods to misappropriation, misuse and counterfeiting, these signs need
to be protected.
Legally, GI protection is a
defense against unfair competition, fraud repression; provide legal protection
against free riders and avoid cultural or geographical bias based on goods of
protection under GI. These means of protection against different categories of
product are discussed hereinafter for better understanding of their mechanism
on an exclusive basis.
1) Unfair Competition: This practice and its
upfront prevention is described in Article 10 bis of Paris Convention which
mandates all States party to the Convention to provide effective protection
against unfair competition- an act of competition contrary to honest practices
in industrial or commercial matters. The aim is to prevent dishonest business
practices against their competitors. The scope of determining a given act as an
act of dishonest practices in industrial or commercial matters was left to the
discretion of States party to the Convention and their governing national laws.
However, article 10 bis of Paris Convention widely interpreted the act of
unfair competition as any act which mislead the public with respect to
identification of goods associated with an enterprise or its activities.
In order to prevent such
an unauthorized use of GI, the burden of proof rest with the plaintiff who is
expected to show that such a use of GI by an unauthorized party is misleading
and the GI had in due course acquired distinctiveness. It is relevant to show
for the plaintiff that the substantial section of the public associate goods
sold under that GI with a distinct geographical origin and/or certain qualities
or reputation. Once proved, the plaintiff may accord damages for such use that
had misled the public or had taken an unfair advantage of the reputation of GI
in question.
2) In-situ conservation of Genetic resources and
rural development: GI’s give the farmers the potential to commercialize
their agricultural products linked to a particular area which gives them a
differentiated identity. This forms the key ingredient for sustainable farming
by farmers without threatening their livelihoods and also for the conservation
of diverse genetic resources which relies on the traditional knowledge of
peasant and indigenous communities. GIs are means which can provide the
necessary governance to control these resources by differentiating them
successfully in the market. It indicates a region of origin, the resources
originating from these regions along with associated knowledge, work and
practices of the people whose livelihoods are linked to the resources in
subject.
3
3) Passing off under GI: The purpose is
mainly to encourage fair trade in every way in order to foster and not hamper
competition. It refrains the competitors or either traders from jeopardizing
others business by fraud, deceit, trickery or unfair methods of any sort and in
turn precludes such traders from gaining undue advantage upon the good’s name
and reputation built up by another. The
legislation therefore reserves exclusive right for the right holders to
maintain an action against any person for passing off goods. By this way of
protection, commercial goodwill of the right holder is maintained and it gets
ensured that the business reputations are not exploited by deceit.
In a nutshell, GI intend
to designate product quality, highlight brand identity and preserve cultural
traditions and genetic resources.
3 ORIGIN & EVOLUTION OF GEOGRAPHICAL INDICATION
As discussed above, most commonly
existing GI includes the name of the place of origin of goods. Agricultural
products typically acquiring qualities from their place of production and other
contributory local factors are most common examples of typical GI related
goods. However, broadly GI may be used for a wide range of products, whether
natural, agricultural or manufactured.
These rights have been enforced
since at least first decades of last century either in the form of consumer
protection benefits or by producer protection benefits. The first of these
systems was originated in France, somewhere in early part of 20th
century for items particularly wines, qualifying set criteria of geographical
origin and quality standards. These items were legally endorsed by way of
government issued stamps which certified the protection claimed by the
producer. For example Gruyere Cheese, French wines etc. The system was
progressively formalized under European Union Law, which came into effect in
1992 regulating the following systems of geographical indication:
·
Protected Designation of Origin (PDO)
·
Protected Geographical Indication (PGI)
·
Traditional Specialty Guaranteed (TSG)
Thereon it became a feature of
national jurisdiction in Europe, Australia and elsewhere, keeping in view the
strengthening of economies and preserving of cultures by adopting and enforcing
GI rights in their legal system. The systems established n European countries,
namely France, Italy, Portugal and Spain formed basis of the single framework
approved by the European Union in Council Regulations on the Protection of GI
and designation of Origin for agricultural products and foodstuffs. That system
does not apply to wines and spirits which are under a separate European
legislation.
Forms of Protection:
a 1) Preventive Protection: The protection
offered under various national and international legislative framework
basically aimed to prevent unfair competition for enhanced customer protection.
This is popularly called as preventive form of protection which does not
require any form of registration to avoid misleading GIs in labeling. The
preventive approaches to GI protection include unfair competition as well as
passing off.
b 2) Positive Protection: The other form
of protection famous for requiring registration by the right holders for
obtaining protection on goods; the description of goods to be protected and a
certification of compliance being the essential requisites for submission. The
description of product is required to prove the link of goods in issue, to a
particular territory and a certification of compliance by a governing body
oversee the compliance with product description submitted by the producer.
Positive form of GI protection is strongly indicative of the potential links
between the territory of origin, collective know how and production in a
defined area.
These registered forms of
positive GI further include special levels of protection categorized as:
·
Trademark Regime
·
Administrative Scheme of Protection
·
Passive or Non-Registration Protection
· Protected Designation of Origin
(PDO)/Denomination of Origin (DO)/Protected Geographical Indication (PGI)
Briefly giving
an overview of specially categorized form of positive protection, an attempt is
made to understand and analyze the significance of each of these.
- Trademark Regime: These include special type of Trademarks wherein the rights are collectively owned by an association indicating a common characteristic that may be the origin of goods, so certified by the proprietor. These trademarks are recognized with geographical references wherein goods under purview are protected as special types of trademarks which prevent registration of descriptive words, a common phenomenon with the nature of geographical names. The use of certification, guarantee or collective trademarks offer a form of protection which is descriptive, non misleading and collectively owned.
- Administrative Scheme of Protection: It is an administrative system of protection wherein certain types of goods such as foodstuffs, wines, spirits or medicinal preparations based on plants require administrative approval before being marketed. Labels for these goods are subject to approval and the use of GI with them is usually regulated. The regulations are also enforced by means of label approvals directly which does not involve registration.
- Passive or Non-Registration Protection: An automatic form of protection (though less strong) is given to legitimate owners of GI which allows them to bring action in court against those who use the GI unlawfully. It is similar to the protection offered by regulations governing unfair competition and consumer protection in the sense that the litigation or preventive measures against the free riders can be initiated. However, it is a step forward in defining the geographical indication and reducing the burden of proof of damage and existing reputation on the affected party.
- Protected Designation of Origin (PDO)/ Denomination of Origin (DO)/ Protected Geographical Indication (PGI): Registered GIs include PDO, DO, PGI characterized in that the registry requires a detailed description of the product and the existence of a system that guarantees compliance with it. It is the strongest from of GI protection of names used in trade indicating the origin of the product. However, flexibility is offered by WIPO model of GI on the state of geographical origin which reads: “any name which is not that of a country, region or specific place is also considered a geographical name if it relates to a specific geographical area when used in combination with certain products”. These are also called as “indirect GIs”.
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