Transcript Geographical Indicators - International Trade Relations

Geographical Indicators.
U.S. v. EU (2004)
Jimmy Ficaro
Lori Gavaghan
Chris Hartman
Mike Kalutkiewicz
What are geographical indicators?
Form of Intellectual Property
• Negotiated under the 1994 TRIPS Agreement
• Protected in similar ways as copyrights,
trademarks, and patents
Definition
• “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
their geographic origin”
Examples of Geographic Indicators
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Some of the more well known
products, named for their region:
• Feta
• Parmesan
• Champagne
• Bologna
• Parma
• Bordeaux
• Cognac
Why is this a trade issue?
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Protecting a product’s name is like
protecting a brand
Consumers need to know that the
product is authentic
• Designates a particular quality
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Yet some Indicators have become
generic terms
The Current Conflict
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The European Union created a
registry of names to protect
• Over 600 products protected
• Covers wine, spirits, and food
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The United States, joined by
Australia objected
EU Argument
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EU Proposal (document IP/C/W/107/Rev.1)
(proposal within the European Community, to be brought before
the WTO
• The EU approached the World Trade Organization requesting
the immediate termination of U.S. usage of commonly known
food terms protected under Article 22, such as, “FETA,”
“PARMESAN,” “BURGUNDY,” “CHABLIS,” “CHAMPAGNE” and
“BOLOGNA” in order to protect domestic agriculture
throughout the Union, included in the EU argument is
approximately 600 food names for WTO protection in addition
to protection of wines and spirits listed in Article 23
The EU Argument
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Example:
A study by the Italian Institute of Consumer
Goods Companies (INDICOD) found that every
ten dollars spent on Italian-style food in the
United States, less than one dollar was spent on
foodstuffs actually originating in Italy.
In the US retail market, turnover of "Italian
sounding" food products is big business, at $17.7
billion a year, but of this, just $1.5 billion, or 8.6
per cent, actually came from Italy, according to
the INDICOD report.
The EU Argument
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EU Promulgated Regulations
• 2081/92 Regarding Wines and Spirits
• 2082/92 Protection of GIs and Designation of Ag and Foodstuffs
• 2081/92 Certificates of Specific Character for Ag and Foodstuffs
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Regulation No. 2081/92, which entered into force on 25 July 1993,
states, in its fifth recital, "the labeling of agricultural products and
foodstuffs is subject to the general rules laid down in Council
Directive 79/112 of 18 December 1978 on the approximation of
the laws of the Member States relating to the labeling,
presentation and advertising of foodstuffs... in view of their
specific nature, additional special provisions should be adopted for
agricultural products and foodstuffs from a specified geographical
area".
The Regulation notes in its seventh recital that, "there is diversity
in the national practices for implementing registered designations
of origin and geographical indications; ... a Community approach
should be envisaged; ... a framework of Community rules on
protection will permit the development of geographical indications
and designations of origin since, by providing a more uniform
approach, such a framework will ensure fair competition between
the producers of products bearing such indications and enhance
the credibility of the products in the consumers' eyes".
The EU Argument
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Article 22
Protection of Geographical Indications
1. Geographical indications are, for the purposes of this Agreement,
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.
2. In respect of geographical indications, Members shall provide the legal
means for interested parties to prevent:
(a) 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;
(b) any use which constitutes an act of unfair competition within the
meaning of Article 10bis of the Paris Convention (1967).
3. A Member shall, ex officio if its legislation so permits or at the request
of an interested party, refuse or invalidate the registration of a trademark
which contains or consists of a geographical indication with respect to
goods not originating in the territory indicated, if use of the indication in
the trademark for such goods in that Member is of such a nature as to
mislead the public as to the true place of origin.
4. The protection under paragraphs 1, 2 and 3 shall be applicable against
a geographical indication which, although literally true as to the territory,
region or locality in which the goods originate, falsely represents to the
public that the goods originate in another territory.
The EU Argument
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Article 23
Additional Protection for Geographical Indications for Wines and Spirits
1. Each Member shall provide the legal means for interested parties to
prevent use of a geographical indication identifying wines for wines not
originating in the place indicated by the geographical indication in question
or identifying spirits for spirits not originating in the place indicated by the
geographical indication in question, even where the true origin of the
goods is indicated or the geographical indication is used in translation or
accompanied by expressions such as “kind”, “type”, “style”, “imitation” or
the like. (4)
2. The registration of a trademark for wines which contains or consists of a
geographical indication identifying wines or for spirits which contains or
consists of a geographical indication identifying spirits shall be refused or
invalidated, ex officio if a Member's legislation so permits or at the request
of an interested party, with respect to such wines or spirits not having this
origin.
3. In the case of homonymous geographical indications for wines,
protection shall be accorded to each indication, subject to the provisions of
paragraph 4 of Article 22. Each Member shall determine the practical
conditions under which the homonymous indications in question will be
differentiated from each other, taking into account the need to ensure
equitable treatment of the producers concerned and that consumers are
not misled.
4. In order to facilitate the protection of geographical indications for wines,
negotiations shall be undertaken in the Council for TRIPS concerning the
establishment of a multilateral system of notification and registration of
geographical indications for wines eligible for protection in those Members
participating in the system.
The EU Argument
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Elimination of TRIPS Article 22 exemptions.
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EU stance against exemptions depicted in
Article 22.
 Generic names for agricultural products and food stuffs
should be protected if it originated in the geographical
region protected by the indicator in addition to already
wines and spirits protected in Article 23.

Reasoning
 Protection of domestic agricultural industry by creating
GIs for agricultural products and food stuffs in addition
to wines and spirits.
 Economic support of rural “less favored or remote”
economies
 Commercial benefits to farmers and producers unable to
qualify for trade protection.
 GIs increase product prices- increase income for
farmers and producers
The EU Argument
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Reasoning
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Global Protection
Competition
Rewards for Investment
Fairness
Piracy
The Commission, the EU's executive arm, insists this
agreement is important not only for products from its
member states.
"Together with our allies, the EU will do its utmost to
achieve better protection for regional quality products, from
Europe's Roquefort cheese to India's Darjeeling tea, from
Guatemala's Antigua coffee to Morocco's Argan oil in the
WTO talks."
US/Australian Argument
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US and Australia brought case to WTO in
2003 and ruling finally handed down in
December, 2004
Article III:4 of GATT 1994
Article 1.1, 2.1, 3.1, 4, 16.1, 22.2, 24.3,
24.5, 41.1, 41.2, 41.4, 42, 44.1 and 65.1
of the TRIPS Agreement
• National Treatment Principal
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US/Australian argument is a complex one
• On one hand, says TRIPS are important
• On the other, claims that EU protectorates are
“different” or “exempt”
American/Australian Issues
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Zoellick agrees GIs are important
• "Like copyrights, patents, and trademarks, geographic
indications play an important role in protecting
distinctive and specialized products and ensure that
consumers have consistent quality."
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Florida oranges, Idaho potatoes, Washington state apples,
West Australian saltbush lamb or Port Lincoln tuna
EU's internal GI system does not give the same
protection to non-EU products that it provides to
European products
• Non-EU nation can only receive full GI protection for its
exports to the European market by fully guaranteeing GI
protection in its domestic market for the 600 EU
products
• Also, administratively too burdensome and costly for a
foreign company to register a GI
• Therefore an NTP violation and contrary to TRIPS
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New type of export aid that protects and subsidizes EU
countries by driving up prices elsewhere
US/Australian Argument
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TRIPS Agreement requires that WTO Members provide the
legal means for interested parties to prevent the use of a
GI that:
• (1) indicates or suggests that a good 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
• (2) constitutes an act of unfair competition.
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TRIPS Agreement provides some exceptions to these
requirements:
• If that GI is the "generic" name
• Where a trademark already exists - where a trademark has
been applied for or registered in good faith, or where the
rights to the trademark have been acquired through actual use
in good faith, either (1) before the date of application of the
TRIPS Agreement for a particular WTO member, or (2) before
the GI was protected in its country of origin, the trademark
maintains its legal presumption of superiority
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"first-in-time, first-in-right”
Herein lies the complainants’ 2nd main argument against
Other Perceived Issues
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The Slippery Slope
Linguistic variations
EU hijacking negotiations
• Linkage between GIs and agricultural
reform imperils the ability of WTO
negotiators to make progress in
eliminating export subsidies, improving
market access and reducing tradedistorting domestic programs
The Decision of the WTO
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"It's a clear win for American farmers and
food processors. For years, Europe effectively
had a 'Do Not Apply' sign directed at foreign
producers." ~Acting U.S. Trade Representative
Peter Allgeier
"I am very pleased with this outcome and
look forward to working together with all WTO
members for the strengthening of the protection
of quality agricultural production," ~EU
Agriculture Commissioner, Mariann Fischer
WTO Panel Technical Findings
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(c)
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From Section B of the findings (US Victory):
the United States has made a prima facie case that the
equivalence and reciprocity conditions in Article 12(1) of
the [EU] Regulation apply to the availability of protection
for GIs that refer to geographical areas located in third
countries outside the European Communities, including
WTO Members, and the European Communities has not
succeeded in rebutting that case;
Article 12(1) provides as follows:
-Without prejudice to international agreements, this
Regulation may apply to an agricultural product or foodstuff
from a third country provided that the third country
concerned is prepared to provide protection equivalent to
that available in the Community to corresponding
agricultural products or foodstuffs coming from the
Community."
WTO Panel Technical Findings
(cont’d)
From Section D of the findings (EU Victory):
(m)
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the United States has not made a prima facie case that the
European Communities has failed to implement its obligation
under Article 22.2 of the TRIPS Agreement.”
Article 22.2 of the TRIPS Agreement provides as follows:
In respect of geographical indications, Members shall
provide the legal means for interested parties to
prevent:
(a) 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;
(b) any use which constitutes an act of unfair
competition within the meaning of Article 10bis of
the Paris Convention (1967).“
WTO Panel Technical Findings
(cont’d)
EU Victory continued…
•
the Panel also rejects the United States' claim that the
Regulation is inconsistent with Article 1.1 of the TRIPS
Agreement.
Article 1.1 of the TRIPS Agreement provides
as follows:
Members may, but shall not be obliged to, implement
in their law more extensive protection than is required
by this Agreement, provided that such protection does
not contravene the provisions of this Agreement.
Members shall be free to determine the appropriate
method of implementing the provisions of this
Agreement within their own legal system and practice."
“Alcohol, the cause and solution to all
life’s problems.” Homer Simpson
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For past hundred years, an international legal
dispute continued between the American brewer
Anheuser-Busch and the Czech beer producer
Budejovicky Budvar over the right to use the
trademark name Budweiser on their products.
The disputed "Budeweiser" name is an adjective
originating from the German name of the Czech
town Ceske Budejovice – Budweis- where the
beer was born in the Middle Ages and thus
describing the origin of the brew.
WTO GI ruling upholds the American distributor's
right to the Budweiser name.
Domestic Geographic Disputes
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California wineries are engaged in a battle with
the Bronco Wine Company, maker of surprisingly
good and very affordable “Two Buck Chuck”
brand wine. The brand offers a quality wine
produced from grapes grown just outside the
Napa Valley, but with labels from wineries
distributing from within the Napa Valley.
Petitions have currently been filed from both
parties – Bronco Wine Co. and a coalition of Napa
Valley winemakers.
Conclusion
Both sides declared “victory”
The EU’s practice of prohibiting the use of GI
indicators such as Feta and Bordeaux has been
upheld by the WTO under the TRIPS agreement.
The US’s claim that the EU was closing off their
registry to US GIs, such as Florida Oranges, was
also upheld under the TRIPS agreement.
Sources
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http://www.internationaltraderelations.com/WTO.
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http://news.ninemsn.com.au/article.aspx?id=461
56
http://usinfo.state.gov/ei/Archive/2004/Jan/06428636.html
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