Can sparkling wine be called “Champagne” even if it does not come from the French countryside? Does it make sense for the black tea with the floral aroma to be called “Darjeeling” only when it comes from the city with this name in Northwest India? Disputes regarding the so-called “geographical indications” still generate heated debate among the main economic powers.
“European Union producers are losing billions a year because non-European producers are taking advantage of the reputation of European-quality products,” warned Franz Fischler, the EU commissioner on agricultural issues, in 2003. In turn, “The United States and other countries oppose this stance” sustained a New York Times editorial, “feta, parmesan, and a lot of other names that the Europeans are claiming have become as universal as the names enchilada, pizza and frankfurter. Europe, they charge, is simply trying to protect its coddled farmers.”
The international community has tried to solve some of these disputes through an international agreement that is part of a package of treaties within the framework of the creation of the World Trade Organization (WTO): The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Under article 22.1 of this treaty, geographical indications are “indications which 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 geographical origin.”
Experts also distinguish between direct and indirect indications. Albrecht Conrad, from the University of Freiburg, indicates that “indications of origin in general consist of the name of a region but can also consist of descriptions of geographical milestones, familiar sceneries, heraldic symbols, well-known individuals or even commercial packaging. These so-called ‘indirect’ geographical indications are also protected in many countries.” Charlier and Ngo – from the National Science Research Center of France – indicate that in both cases geographical indications form “a particular category of intellectual property” that grants producers originally from an area the right to prevent commercial distribution of products that identify themselves through the region but that do not come from same.
The TRIPS Agreement
The TRIPS Agreement does not apply directly to producers but rather to States, which are the target of its regulations. That is to say, the treaty sets out obligations for countries, which must incorporate international protection standards in their domestic regulations. The standards are three: in most cases, a “standard level of protection”; in the case of wines and spirits, a “higher level of protection”; and finally, certain exceptions, i.e., cases that have no protection whatsoever, where geographical indications are free to use.
Standard level of protection
Article 22 of the TRIPS Agreement stipulates that States must establish mechanisms for interested parties to prevent “the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good” or “any use which constitutes an act of unfair competition.” The treaty also indicates that even if the indication is “literally true as to the territory, region or locality in which the goods originate,” it can be prevented if it “falsely represents to the public that the goods originate in another territory.”
Wines and spirits: enhanced protection
Article 23 of the treaty stipulates that the geographical indications referring to wines and spirits – such as “Champagne” or “Tequila”- must have a greater level of protection than what is generally granted. In this case, “subject to a number of exceptions,” explains the WTO website, “these indications have to be protected even if misuse would not cause the public to be misled.” The treaty also clarifies that the protection applies “even where the true origin of the goods is indicated or the geographical indication is used in translation or indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like.”
In the treaty, the States also expressed their agreement in the creation of a “multilateral register for wines and spirits” specifically agreeing to the protection of each geographical indication in the market. This process is currently being negotiated.
Article 24 of the treaty allows for cases where geographical indications do not have to be protected and are free to use. The WTO website explains that “Among the exceptions that the agreement allows are: when a name has become the common (or “generic”) term (for example, “cheddar” now refers to a particular type of cheese not necessarily made in Cheddar, in the UK), and when a term has already been registered as a trademark.”