Geographical indication
Encyclopedia
A geographical indication (GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation, due to its geographical origin.
s and trademarks used in relation to food products identified with a particular region since at least the end of the nineteenth century, using law
s against false trade descriptions or passing off
, which generally protect against suggestions that a product has a certain origin, quality or association when it does not. In such cases, the limitation on competitive freedoms which results from the grant of a monopoly of use over a geographical indication is justified by governments either by consumer protection benefits or by producer protection benefits.
One of the first GI systems is the one used in France
from the early part of the twentieth century known as appellation d'origine contrôlée
(AOC). Items that meet geographical origin and quality standards may be endorsed with a government-issued stamp which acts as official certification of the origins and standards of the product to the consumer. Examples of products that have such 'appellations of origin' include Gruyère cheese
and many French wines.
Geographical indications have long been associated with the concept of terroir
and with Europe
as an entity, where there is a tradition of associating certain food products with particular regions. Under European Union Law
, the protected designation of origin
framework which came into effect in 1992 regulates the following systems of geographical indications: Protected designation of origin (PDO), protected geographical indication (PGI) and Traditional Speciality Guaranteed (TSG).
is similar to the protection afforded to trademarks, and in particular, certification mark
s. Geographical indications law restricts the use of the GIs for the purpose of identifying a particular type of product, unless the product and/or its constituent materials and/or its fabrication method originate from a particular area and/or meet certain standards. Sometimes these laws also stipulate that the product must meet certain quality tests that are administered by an association that owns the exclusive right to licence or allow the use of the indication. Although a GI is not strictly a type of trademark as it does not serve to exclusively identify a specific commercial enterprise, there are usually prohibitions against registration of a trademark which constitutes a geographical indication. In countries that do not specifically recognize GIs, regional trade associations may implement them in terms of certification marks.
The consumer-benefit purpose of the monopoly rights granted to the owner of a GI also applies to the trademark monopoly right. Geographical indications have other similarities with trademarks. For example, they must be registered in order to qualify for protection, and they must meet certain conditions in order to qualify for registration. One of the most important conditions that most governments have required before registering a name as a GI is that the name must not already be in widespread use as the generic name for a similar product. Of course, what is considered a very specific term for a well-known local specialty in one country may constitute a generic term or genericized trademark
for that type of product. For example, parmigiano cheese in Italy is generically known as Parmesan cheese in Australia
and the United States
.
'), handicrafts, flowers and perfumes.
When products with GIs acquire a reputation of international magnitude, some other products may try to pass themselves off as the authentic GI products. This kind of competition is often seen as unfair, as it may disourage traditional producers as well as mislead consumers. Thus the European Union has pursued efforts to improve the protection of GI internationally. Accusations of 'unfair' competition should although be levelled with caution since the use of GIs sometimes comes from European immigrants who brought their traditional methods and skills with them.
made it important to try to harmonize the different approaches and standards that governments used to register GIs. The first attempts to do so were found in the Paris Convention
on trademarks (1883), followed by a much more elaborate provision in the 1958 Lisbon Agreement on the Protection of Appellations of Origin and their Registration. Few countries joined the Lisbon agreement, however: by 1997 there were only 17 members (Algeria, Bulgaria, Burkina Faso, Congo, Cuba, Czech Republic, France, Gabon, Haiti, Hungary, Israel, Italy, Mexico, Portugal, Slovakia, Togo, Tunisia). About 170 geographical indications were registered by Lisbon Agreement members .
Agreement on Trade-Related Aspects of Intellectual Property Rights
("TRIPS") defines "geographical indications" as indications that identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin. Examples of geographical indications from the United States include: "FLORIDA" for oranges; "IDAHO" for potatoes; "VIDALIA" for onions; and "WASHINGTON STATE" for apples. Geographical indications are valuable to producers for the same reason that trademarks are valuable. Geographical indications serve the same functions as trademarks, because like trademarks they are: source-identifiers; guarantees of quality; and valuable business interests. Although, as mentioned above "geographical indications" are often associated with Europe, the U.S. system for protection of geographical indications can be dated to at least the Trademark Act of 1946.
In 1994, when negotiations on the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights
("TRIPS") were concluded, governments of all WTO member countries (151 countries ) had agreed to set certain basic standards for the protection of GIs in all member countries. There are, in effect, two basic obligations on WTO member governments relating to GIs in the TRIPS agreement:
Article 22 of TRIPS also says that governments may refuse to register a trademark or may invalidate an existing trademark (if their legislation permits or at the request of another government) if it misleads the public as to the true origin of a good. Article 23 says governments may refuse to register or may invalidate a trademark that conflicts with a wine or spirits GI whether the trademark misleads or not.
Article 24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23). For example, Members are not obliged to bring a geographical indication under protection where it has become a generic term for describing the product in question. Measures to implement these provisions should not prejudice prior trademark rights that have been acquired in good faith; and, under certain circumstances — including long-established use — continued use of a geographical indication for wines or spirits may be allowed on a scale and nature as before.
In the Doha Development Round of WTO negotiations, launched in December 2001, WTO member governments are negotiating on the creation of a 'multilateral register' of geographical indications. Some countries, including the EU, are pushing for a register with legal effect, while other countries, including the United States, are pushing for a non-binding system under which the WTO would simply be notified of the members' respective geographical indications.
Some governments participating in the negotiations (especially the European Communities) wish to go further and negotiate the inclusion of GIs on products other than wines and spirits under Article 23 of TRIPS. These governments argue that extending Article 23 will increase the protection of these marks in international trade. This is a controversial proposal, however, that is opposed by other governments including the United States who question the need to extend the stronger protection of Article 23 to other products. They are concerned that Article 23 protection is greater than required, in most cases, to deliver the consumer benefit that is the fundamental objective of GIs laws.
History
Governments have been protecting trade nameTrade name
A trade name, also known as a trading name or a business name, is the name which a business trades under for commercial purposes, although its registered, legal name, used for contracts and other formal situations, may be another....
s and trademarks used in relation to food products identified with a particular region since at least the end of the nineteenth century, using law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s against false trade descriptions or passing off
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
, which generally protect against suggestions that a product has a certain origin, quality or association when it does not. In such cases, the limitation on competitive freedoms which results from the grant of a monopoly of use over a geographical indication is justified by governments either by consumer protection benefits or by producer protection benefits.
One of the first GI systems is the one used in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
from the early part of the twentieth century known as appellation d'origine contrôlée
Appellation d'Origine Contrôlée
Appellation d’origine contrôlée , which translates as "controlled designation of origin", is the French certification granted to certain French geographical indications for wines, cheeses, butters, and other agricultural products, all under the auspices of the government bureau Institut National...
(AOC). Items that meet geographical origin and quality standards may be endorsed with a government-issued stamp which acts as official certification of the origins and standards of the product to the consumer. Examples of products that have such 'appellations of origin' include Gruyère cheese
Gruyère (cheese)
Gruyère is a hard yellow cheese, named after the town of Gruyères in Switzerland, and originated in the cantons of Fribourg, Vaud, Neuchâtel, Jura, and Berne...
and many French wines.
Geographical indications have long been associated with the concept of terroir
Terroir
Terroir comes from the word terre "land". It was originally a French term in wine, coffee and tea used to denote the special characteristics that the geography, geology and climate of a certain place bestowed upon particular varieties...
and with Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
as an entity, where there is a tradition of associating certain food products with particular regions. Under European Union Law
European Union law
European Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law...
, the protected designation of origin
Protected designation of origin
Protected Geographical Status is a legal framework defined in European Union law to protect the names of regional foods. Protected Designation of Origin , Protected Geographical Indication and Traditional Speciality Guaranteed are distinct regimes of geographical indications within the framework...
framework which came into effect in 1992 regulates the following systems of geographical indications: Protected designation of origin (PDO), protected geographical indication (PGI) and Traditional Speciality Guaranteed (TSG).
Legal effect
In many countries the protection afforded to geographical indications by lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
is similar to the protection afforded to trademarks, and in particular, certification mark
Certification mark
A certification mark on a commercial product indicates five things:* The existence of a legal follow-up or product certification agreement between the manufacturer of a product and an organization with national accreditation for both testing and certification,* Legal evidence that the product was...
s. Geographical indications law restricts the use of the GIs for the purpose of identifying a particular type of product, unless the product and/or its constituent materials and/or its fabrication method originate from a particular area and/or meet certain standards. Sometimes these laws also stipulate that the product must meet certain quality tests that are administered by an association that owns the exclusive right to licence or allow the use of the indication. Although a GI is not strictly a type of trademark as it does not serve to exclusively identify a specific commercial enterprise, there are usually prohibitions against registration of a trademark which constitutes a geographical indication. In countries that do not specifically recognize GIs, regional trade associations may implement them in terms of certification marks.
The consumer-benefit purpose of the monopoly rights granted to the owner of a GI also applies to the trademark monopoly right. Geographical indications have other similarities with trademarks. For example, they must be registered in order to qualify for protection, and they must meet certain conditions in order to qualify for registration. One of the most important conditions that most governments have required before registering a name as a GI is that the name must not already be in widespread use as the generic name for a similar product. Of course, what is considered a very specific term for a well-known local specialty in one country may constitute a generic term or genericized trademark
Genericized trademark
A genericized trademark is a trademark or brand name that has become the colloquial or generic description for, or synonymous with, a general class of product or service, rather than as an indicator of source or affiliation as intended by the trademark's holder...
for that type of product. For example, parmigiano cheese in Italy is generically known as Parmesan cheese in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
.
International issues
Like trademarks, geographical indications are regulated locally by each country because conditions of registration such as differences in the generic use of terms vary from country to country. This is especially true of food and beverage names which frequently use geographical terms, but it may also be true of other products such as carpets (e.g. 'ShirazShiraz
Shiraz may refer to:* Shiraz, Iran, a city in Iran* Shiraz County, an administrative subdivision of Iran* Vosketap, Armenia, formerly called ShirazPeople:* Hovhannes Shiraz, Armenian poet* Ara Shiraz, Armenian sculptor...
'), handicrafts, flowers and perfumes.
When products with GIs acquire a reputation of international magnitude, some other products may try to pass themselves off as the authentic GI products. This kind of competition is often seen as unfair, as it may disourage traditional producers as well as mislead consumers. Thus the European Union has pursued efforts to improve the protection of GI internationally. Accusations of 'unfair' competition should although be levelled with caution since the use of GIs sometimes comes from European immigrants who brought their traditional methods and skills with them.
Early agreements
International tradeInternational trade
International trade is the exchange of capital, goods, and services across international borders or territories. In most countries, such trade represents a significant share of gross domestic product...
made it important to try to harmonize the different approaches and standards that governments used to register GIs. The first attempts to do so were found in the Paris Convention
Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property...
on trademarks (1883), followed by a much more elaborate provision in the 1958 Lisbon Agreement on the Protection of Appellations of Origin and their Registration. Few countries joined the Lisbon agreement, however: by 1997 there were only 17 members (Algeria, Bulgaria, Burkina Faso, Congo, Cuba, Czech Republic, France, Gabon, Haiti, Hungary, Israel, Italy, Mexico, Portugal, Slovakia, Togo, Tunisia). About 170 geographical indications were registered by Lisbon Agreement members .
Agreement on Trade-Related Aspects of Intellectual Property Rights
The WTOWorld Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
("TRIPS") defines "geographical indications" as indications that identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin. Examples of geographical indications from the United States include: "FLORIDA" for oranges; "IDAHO" for potatoes; "VIDALIA" for onions; and "WASHINGTON STATE" for apples. Geographical indications are valuable to producers for the same reason that trademarks are valuable. Geographical indications serve the same functions as trademarks, because like trademarks they are: source-identifiers; guarantees of quality; and valuable business interests. Although, as mentioned above "geographical indications" are often associated with Europe, the U.S. system for protection of geographical indications can be dated to at least the Trademark Act of 1946.
In 1994, when negotiations on the WTO
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
("TRIPS") were concluded, governments of all WTO member countries (151 countries ) had agreed to set certain basic standards for the protection of GIs in all member countries. There are, in effect, two basic obligations on WTO member governments relating to GIs in the TRIPS agreement:
- Article 22 of the TRIPS Agreement says that all governments must provide legal opportunities in their own laws for the owner of a GI registered in that country to prevent the use of marks that mislead the public as to the geographical origin of the good. This includes prevention of use of a geographical name which although literally true "falsely represents" that the product comes from somewhere else.
- Article 23 of the TRIPS Agreement says that all governments must provide the owners of GI the right, under their laws, to prevent the use of a geographical indication identifying wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, where there is no unfair competition and where the true origin of the good is indicated or the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation" or the like. Similar protection must be given to geographical indications identifying spirits.
Article 22 of TRIPS also says that governments may refuse to register a trademark or may invalidate an existing trademark (if their legislation permits or at the request of another government) if it misleads the public as to the true origin of a good. Article 23 says governments may refuse to register or may invalidate a trademark that conflicts with a wine or spirits GI whether the trademark misleads or not.
Article 24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23). For example, Members are not obliged to bring a geographical indication under protection where it has become a generic term for describing the product in question. Measures to implement these provisions should not prejudice prior trademark rights that have been acquired in good faith; and, under certain circumstances — including long-established use — continued use of a geographical indication for wines or spirits may be allowed on a scale and nature as before.
In the Doha Development Round of WTO negotiations, launched in December 2001, WTO member governments are negotiating on the creation of a 'multilateral register' of geographical indications. Some countries, including the EU, are pushing for a register with legal effect, while other countries, including the United States, are pushing for a non-binding system under which the WTO would simply be notified of the members' respective geographical indications.
Some governments participating in the negotiations (especially the European Communities) wish to go further and negotiate the inclusion of GIs on products other than wines and spirits under Article 23 of TRIPS. These governments argue that extending Article 23 will increase the protection of these marks in international trade. This is a controversial proposal, however, that is opposed by other governments including the United States who question the need to extend the stronger protection of Article 23 to other products. They are concerned that Article 23 protection is greater than required, in most cases, to deliver the consumer benefit that is the fundamental objective of GIs laws.
See also
- AppellationAppellationAn appellation is a legally defined and protected geographical indication used to identify where the grapes for a wine were grown; other types of food often have appellations as well...
(wine) - Country of originCountry of originCountry of origin , is the country of manufacture, production, or growth where an article or product comes from...
- Appellation d'origine contrôléeAppellation d'Origine ContrôléeAppellation d’origine contrôlée , which translates as "controlled designation of origin", is the French certification granted to certain French geographical indications for wines, cheeses, butters, and other agricultural products, all under the auspices of the government bureau Institut National...
(French system) - Protected Geographical StatusProtected Geographical StatusProtected Geographical Status is a legal framework defined in European Union law to protect the names of regional foods. Protected Designation of Origin , Protected Geographical Indication and Traditional Speciality Guaranteed are distinct regimes of geographical indications within the framework...
(European Union) - TerroirTerroirTerroir comes from the word terre "land". It was originally a French term in wine, coffee and tea used to denote the special characteristics that the geography, geology and climate of a certain place bestowed upon particular varieties...
- Geographical Indication - Australian Wine zone