Abstract
This research provides a broad legal analysis and a multidisciplinary tactic to determine the safeguards provided by geographical indications under Intellectual Property Law. It evaluates international legislations to assess their effectiveness in dealing with IPR. The core part of this piece reveals the development and reasoning behind how they function, and ways in which they differ and overlap with other IP systems. Other IP mechanisms like traditional knowledge, patents, and trademarks are not delved into in this paper, which is a critical caveat.
Introduction
There is an emerging realisation that cultural assets require legal safeguards and in the last few decades, there have been statutory developments on an international stage surrounding it. The need to protect culture stemmed from the awareness and recognition of indigenous and ethnic clusters across borders.
A product coming from a specified geographical origin, with potential and a reputation to maintain because of that origin, is assigned a sign or indicator called a ‘geographical indication’ (GI) under Intellectual Property Law internationally. The basic idea implicit in geographical indications is that certain places have distinct characteristics in the goods they produce, that are not found anywhere else. This is because terroir - a region's particular temperature, soil, history, and other considerations, links these characteristics to society and culture, which further distinguishes a good. GI law is based on the idea of establishing credibility and validity via the declaration of a set of items in relation to an exact spot or territory, which also serve to safeguard the material creations of indigenous cultures. Since geographical indications are now recognised globally as independent intellectual property rights, they are in my opinion, the best tool for promoting a cultural asset and ensuring protection.
GI Protection in International Conventions
There are four conventions that international IPR depends on. The ‘Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods’ and the ‘Paris Convention on Intellectual Property’ were the first attempts to establish worldwide IP law regimes. The Geneva Act created a single registration system for geographical indications and appellations of origin, by modifying the Lisbon Agreement on Appellations of Origin. International harmonisation of the various safety tiers could be advantageous to everyone in the market, but every single one of these conventions has its own distinct interpretation and requirements for GIs. An important reminder is that the law and protections of a GI does not shield the good directly; rather, it simply safeguards an indication or title and its connection to the particular commodity.
A) The TRIPS Agreement
Under the terms of the 1994 Agreement on ‘Trade-Related Aspects of Intellectual Property Rights’ (TRIPS), the term “geographical indication” was introduced. All World Trade Organisation members agreed to handle GIs comprehensively, requiring a safeguard nexus between the commodity and the GI depending on either their value or repute attributed to the origin. This agreement establishes basic requirements for protecting adjacent to unjust competition in accordance with ‘Paris Convention (Article 10bis)’, although member-states can choose their own rightful mechanisms for achieving the goal.
B) The Paris Convention for the Protection of Industrial Property
This 1883 multilateral convention indicates an expansive description of GIs, by referring to "indications of source or appellations of origin," but it does not offer an accurate description or any kind of safety regarding GIs, leaving us with a very vague and narrow scope.
C) The Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods
Beyond the provisions of the Paris Convention, the Madrid Agreement provided safeguards against deceptive indicators independent of the individual's false aim. This agreement safeguards against "false" or "misleading" signals, including "system," "type," "style," and similar terms. However, indicators thought to be “descriptive” or “generalized” are not safeguarded.
D) The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration – Amended by the Geneva Act
This accord gives more emphasis to Appellations of Origin (AOs) than GIs, reducing GIs usages. It establishes a global "registration system" run by the World Intellectual Property Rights Organization. Member states may request for the registration of an identifier as an AO if it is initially safeguarded in the nation where it originates. To try and bridge the disparity in coverage that exists between the Lisbon mechanism for AOs and the TRIPS framework for GIs, the "Geneva Act of the Lisbon accord on Appellations of Origin and Geographical Indications" was enacted in 2015 and amended the Lisbon accord.
Economic and Cultural Reasoning to Geographical Indications
Protection of GIs intends to reward traditional knowledge owners with financial benefits, encouraging them to advance the standard and quality of GI-derived commodities. The producer will start valuing conventional manufacturing practices, cultural legacy, which contribute to the distinctive authenticity, image, and features of its goods. GIs let local communities engage in international financial transactions while protecting their sense of culture and national resources by re-embedding products in their organic and social contexts. By providing users with reliable data about origins and characteristic, GIs lessen "information asymmetry" and minimize customer confusion and search expenses. They promote growth in rural areas worldwide. This way, they frequently serve as a tourism incentive, boosting the number of visitors intrigued in the region's specialties and traditions.
GIs avoid wandering around of identical items, providing clarity about a unique feature of a certain good or its derivation. They also prevent signs from losing what makes them special or their status due to unjust competition or misappropriation. Besides, GIs, like other IPR tools provide certain rights, which hinder barriers to trade.
Addressing Challenges Raised against GIs
The main point of argument has been raised by critics about the notion that registered trademark law already offers comparable and sufficient protection; but I don't agree with this criticism as in contrast to trademarks, GIs designate a product as coming from a certain location rather than an event or creation in particular. Besides this, GIs are not freely convertible or transferable, which sets them apart from other IPRs.
If a trademark and an ulterior authorized GI clash, the subsequent GI can coexist with the existing trademark as long as the mark is not so prevalent that using it as a GI would cause a mix-up. I believe this is a good approach, as it also avoids redundancy. In the Bavaria case, the CJEU upheld the "co-existence" principle with regard to liquor. Nonetheless, a previous GI that was filed in accordance with EU GI rules and that corresponds to or is identical to an already-existing trademark is a complete basis for rejecting or cancelling a subsequent trademark.
The question as to if a geographic classification has become generic - i.e., whether it no longer has a geographical significance and is merely a symbol that indicates a particular type of product, becomes increasingly important because generic terms cannot be registered as trademarks or GIs under the EU GI Regulation or the USA Trademark Law, respectively, which results in their elimination from any possible safeguarding or enforcement of the applicable right. If a phrase has been deemed generic in its home state, it may not be eligible for extended GI protection. This is a particularly usable test to market misunderstanding and societal problems like ethnicity or quality.
Examination of the influence of the widespread adoption of a GI, which frequently means rises in prices allocated for sales in remote but lucrative markets, so diminishing its accessibility and cost for the local regions. This is a valid concern, but since these commodities are rare and not accessible to all regions, local markets will not be directly affected. For example, Tushetian Guda Cheese is made of a combination sheep and cow milk found only in Georgia (WIPO). It has a GI tag, but milk manufacturers from other regions, will not incur losses as milk will still be made and used regularly in other parts of the world.
The TRIPS Agreement accepts GIs but allows for members to establish their own domestic laws for protection, with no uniformity among states. However, this is not applicable for other IP mechanisms. Copyrights, patents and trademarks are consistent among countries. This should be amended, and standardization should be adopted; even though jurisdictions come from different backgrounds, uniformity is achievable since the divided territories have a greater number of things in agreement than things different. This will also give GIs equal significance as the other IPR protection instruments.
Conclusion
As the idea itself, GIs possess distinct identities and have characteristics that are distinct greatly from other laws in the typical IPRs sector. They are frequently employed as distinctive products with specific qualities because of their innate links to the region and global traditional knowledge. There are numerous benefits for both suppliers and customers in an equitable way, with the straightforward use of GI protection. Harmonizing the TRIPS agreement through communicated fundamentals such as "anti-dilution" safeguarding, "unjust competitors," and equitable use among all countries, leveraging the competitive edge of the distinctive terrain provided by GIs, appears as an achievable response to the threat posed by standardizing society in an international setting.
Name: Vipassna Iyer
University and Year: Jindal Global Law School, 3 Year
Programme: B.Com LLB (Hons.)
LinkedIn Page Link: https://www.linkedin.com/in/vipassnaiyer?lipi=urn%3Ali%3Apage%3Ad_flagship3_profile_view_base_contact_details%3BLGmvywtFTIaJn8TYnkdSeQ%3D%3D