Geographical Indications: Natural Competitive Advantage

Priyanka Sardana and Vijay Sardana

Geographical indications can acquire a high reputation in the minds of the consumers and offers great value to consumers. They are valuable commercial assets for the society. For this very reason, they are often exposed to misappropriation, counterfeiting or forgery, and their protection – national as well as international – is highly desirable.

Darjeeling”, “Champagne”, “Cognac”, “Roquefort”, “Chianti”, “Pilsen”, “Porto”, “Sheffield”, “Havana”, Cheddar, “Tequila” – are some of the well-known examples. They are associated throughout the world with products of a certain nature and quality. One common feature of all these names is that they are name of the places or that is to say, their function of designating existing places, towns, regions or countries. However, when we hear these names we think of products rather than the places they designate.

Probably there is no category of intellectual property law where there exists such a variety of concepts of protection as in the field of geographical indications, with the exception of design law. The commercial significance of this relatively new term “Geographical Indications” can be assessed by the fact that Geographical indications are integral part of national, regional and international trade negotiations.

Geographical Indication and its significance 

The Paris Convention for the Protection of Industrial Property does not contain the notion of geographical indication. Article 1 paragraph (2) defines as subjects of industrial property, inter alia, indications of source and appellations of origin. This is the terminology traditionally applied and still officially used in the conventions and agreements administered by World Intellectual Property Organization (WIPO). The distinction is made between indications of source and appellations of origin: “indication of source” means any expression or sign used to indicate that a product or service originates in a country, a region or a specific place, whereas “appellation of origin” means the geographical name of a country, region or specific place which serves to designate a product originating therein the characteristic qualities of which are due exclusively or essentially to the geographical environment, including natural or human factors or both.

Difference between “indications of source” and “appellations of origin”

It is important to highlight the difference between indications of source and appellations of origin.

The use of an appellation of origin requires a quality link between the product and its area of production. This qualitative link consists of certain characteristics of the product which are exclusively or essentially attributable to its geographical origin such as, climate, soil or traditional methods of production. On the other hand, the use of an indication of source on a given product is merely subject to the condition that this product originates from the place designated. Appellations of origin can be understood as a special kind of indication of source. Traditionally, the term “indication of source” comprises all appellations of origin, but, in its general use, it has become rather a designation for those indications of source which are not considered to be appellations of origin.

Origin of the term “Geographical Indication”

The term “geographical indication” has been chosen by WIPO to describe the subject matter of a new treaty for the international protection of names and symbols which indicate a certain geographical origin of a given product. In this connection, the term is intended to be used in its wider sense. It embraces all existing means of protection of such names and symbols, regardless of whether they indicate the qualities of a given product due to its geographical origin (such as appellations of origin), or they merely indicate the place of origin of a product (such as indications of source). This definition also covers symbols, because geographical indications are not only constituted by names, such as the name of a town, a region or a country (“direct geographical indications”), but may also consist of symbols. Such symbols may be capable of indicating the origin of goods without literally naming its place of origin. Examples for such indirect geographical indications are the Taj Mahal for Agra, Red Fort for Delhi, Gateway of India for Mumbai, Hawa Mahal for Jaipur, Eiffel Tower for Paris, the Matterhorn for Switzerland or the Tower Bridge for London etc.

On the other hand, the term “geographical indication” is also used in the EC Council Regulation No. 2081/92 of
July 14, 1992, on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs and in the Agreement on TRIPS. In both the texts, this term is applied to products whose quality and characteristics are attributable to their geographical origin, an approach that closely resembles the appellation of origin kind of protection. In other words, “mere” indications of source are not covered by the specific notion of geographical indication used in those two legal texts. However, this presentation, in trying to take into account all existing forms of protection of geographical indications, uses the term in its widest meaning.

Difference between Geographical Indication and Trademark

According to various legal provisions, a trademark is a sign used by an enterprise to distinguish its goods and services from those of other enterprises. It gives its owner the right to exclude others from using the trademark. A geographical indication tells consumers that a product is produced in a certain place and has certain characteristics that are due to that place of production. It may be used by all producers who make their products in the place designated by a geographical indication and whose products share typical qualities.

Who owns Geographical Indication for commercial purpose?

When considering geographical indications as a special kind of distinctive sign used in commerce and thus as a particular category of intellectual property, it is important to distinguish them from trademarks: whereas a trademark identifies the enterprise which offers certain products or services on the market, a geographical indication identifies a geographical area in which one or several enterprises are located which produce the kind of product for which the geographical indication is used. Thus, there is no “owner” of a geographical indication in the sense that one person or enterprise can exclude other persons or enterprises from the use of a geographical indication, but each and every enterprise which is located in the area to which the geographical indication refers to has the right to use the said indication for the products originating in the said area, but possibly subject to compliance with certain quality requirements such as prescribed, for example, in administrative decrees governing the use of appellations of origin.

What is meant by “protection” of geographical indications?

First of all, protection means the right to prevent unauthorized persons from using geographical indications, either for products which do not originate from the geographical place indicated, or not complying with the prescribed quality standards. The second aspect related to the issue of protection is the question of protecting geographical indications against becoming generic expressions: in that case they have lost all their distinctiveness and, consequently, will lose their protection. The question whether a geographical indication is a generic term and void of any protection is, in the absence of an international agreement, to be determined by national law. It might well be that a geographical name is regarded in one country as a geographical indication and is protected accordingly, whereas it is considered to be a generic or semi-generic term in another country. Notorious examples for such diverging treatment of geographical names are the French names “Champagne” and “Chablis” which, in France, are only allowed to be used for products originating from a certain geographical area and produced according to certain quality standards, whereas, in the United States of America for example, they are regarded as being semi-generic names, and therefore may be also used for wines not originating from the particular area of production in France. This aspect of protection is especially important in the context of international protection of geographical indications and is dealt with, for example, by the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration.

How is a geographical indication protected?

Geographical indications are protected in accordance with national laws and under a wide range of concepts, such as laws against unfair competition, consumer protection laws, laws for the protection of certification marks or special laws for the protection of geographical indications or appellations of origin. In essence, unauthorized parties may not use geographical indications if such use is likely to mislead the public as to the true origin of the product. Applicable sanctions range from court injunctions preventing the unauthorized use to the payment of damages and fines or, in serious cases, imprisonment.

How are geographical indications protected on the international level?

A number of treaties administered by the WIPO provide for the protection of geographical indications, most notably being the Paris Convention for the Protection of Industrial Property of 1883, and the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration. In addition, Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with the international protection of geographical indications within the framework of the World Trade Organization (WTO).

 

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