The WIPO Journal
In this article, I touch upon a topic that remains highly controversial in international intellectual property law—the legal protection of geographical indications of origin (GIs): Chianti wine, Champagne sparkling wine, Gorgonzola cheese, Parma ham, Darjeeling tea, Colombian coffee, and other terms that indicate (or are supposed to indicate, as I will develop in this article) the geographical origin of the products they identify. In line with the theme of this special issue of the WIPO Journal, I focus on the requirement of “geographical origin” upon which the protection of GIs has been historically built and is generally justified. In particular, I question the ambiguity that characterises the current definition of GIs under art.22(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which does not require that products originate entirely from their GI-denominated regions to enjoy GI protection as long as the quality, characteristic or reputation of the products at issue can be “essentially” attributed to those regions.
In my previous scholarship, I have recognised that GIs add value to the products that they identify and this may offer a competitive advantage to their producers, but I have nonetheless concluded that a system of GI protection is more beneficial for economic development than a system in which competitors can freely use geographical terms without a direct connection to the GI-denominated region. In particular, I have highlighted that GIs can benefit local economies, the environment, and the conservation of local culture. Moreover, I have underlined that GIs do not grant an exclusive right over a type of product. Cheese makers in Wisconsin, for example, would remain free to produce and market “mozzarella” and “mozzarella di bufala” even if the UnitedStates concedes to the long-held pressure of the European Union (EU) to “claw-back” several geographical names of cheese (currently held to be generic in the United States). Equally asrelevant, TRIPs permits competitorsto use GIsin descriptive contexts(e.g. comparative advertising) and to name their products as a “style”, “like” or “type” of GI-related product in several circumstances—the only exception to this general rule are GIs identifying wines and spirits. Still, in my writing I have expressed scepticism over GI protection when the products at issue are not grown or manufactured entirely or nearly entirely in the GI-denominated territory. In these cases, I have argued that GI protection indeed may transform into an unjustified anticompetitive subsidy as well as a tool for potential consumer confusion, or even deception.
In this article, I further bring my scepticism to what I call “ambiguous geographical origin” of GIs and advocated against the misuse, or misinterpretation, of the terms “geographical origin” in art.22(1) of TRIPs. More specifically, I expose the partial inconsistency between the legal definition under TRIPs and the dictionary definition of the terms “geographical” and “origin”. In this respect, I point out that, from a strictly linguistic standpoint, the term “geographical”, in its variation as “geographic”, is defined as “of or relating to geography” and as “belonging to or characteristic of a particular region”. Likewise, the word “origin” is defined as “the point at which something begins or rises or from which it derives”. Based on these definitions, I note that art.22(1) of TRIPs essentially misuses, or at least misinterprets, the notion of the terms “geographical” and “origin” and expandsthe scope of GI protection beyond the meaning of these terms. This departure from a literal interpretation contributes to granting exclusive rights to GIs beyond the original rationale for protection, which remains protecting GIsfor the information they convey to the public about products’ geographical origin and as incentives for investment in local economies.
In this article, I argue that this should not be permitted and that the definition and protection of GIs should return to coherently identifying products’ “geographical origin”. My argument in favour of this narrower approach is threefold. First, as noted by GI critics, GIs become an unjustified barrier to entry in the market, and a disguised subsidy, when they do not fully reflect the geographical origin of the products that they identify. Secondly, the use of GIs on products not fully locally grown or made becomes a source of misinformation for the consumers that rely on the GI as a source of geographical information, and a potential source of negative reputation for producers that operate within the GI-denominated region when the former products are of lesser or different quality, or pose a safety or health-related issue. Finally, adopting a stricter territorial approach could be the much-needed solution for bringing back legitimacy to the international debate over GIs. As I note in this article, GIs are and remain an important tool for economic and cultural development—finding a compromise like the one advocated in this article could perhaps move forward the gridlocked international agenda on GI protection.
In Territorio Veritas? Bringing Geographical Coherence into the Ambiguous Definition of Geographical Indications of Origin,
Available at: https://scholarship.law.tamu.edu/facscholar/609