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This page provides an introduction to geographical indication
or appellation schemes.
It covers -
It
supplements discussion of intellectual
property and of trademarks elsewhere on this site.
introduction
A geographical indication - aka a denomination, indication
of source or appellation d'origine contrôlée
(AOC) - is a sign used on goods that have a specific geographical
origin and are claimed to possess qualities or a reputation
attributable to that place of origin.
Its collective nature - potentially encompassing the output
of hundreds or thousands of enterprises - contrasts with
trademarks, which identify
individual brands, products or organisations (and which
are affected be 'genericide' if loosely used).
Typically a geographical indication consists of the name
of the place of origin of goods, in particular agricultural
products such as wine, cheese or meat. Agricultural goods
identified in that way are typically asserted to have
distinctive qualities that derive from the place of production,
are influenced by specific local factors such as soil
and climate, and may embody cultural attributes such as
production by craftspeople using traditional methods rather
than large scale manufacture.
Whether a sign functions as a geographical indication
is a matter of both national law, usually underpinned
by a formal registration scheme and reflected in international
trade agreements such as TRIPS, and consumer perception.
Geographical indications may be used for a wide variety
of agricultural products, including
- Champagne
- a type of wine produced in a particular part of France
- Roquefort
- cheese produced in France
- Mozzarella
- a buffalo cheese produced in Italy
-
Tuscany - olive oil produced in a particular area of
Italy
Other
examples of indications are highlighted here.
Appellations and Indications of Source
The term 'geographical indication' has been used loosely
- or opportunistically - to cover two levels of identifiers.
An indication of source typically identifies that a product
has been produced in a particular location.
That product might be an agricultural commodity such as
wine, processed meat or cheese. It might instead be a
handcraft, such as Thai silk, and much of the disagreement
in trade negotiations at the bilateral and multilateral
levels has concerned whether protection should be extended
beyond a small number of agricultural products (particularly
products from Europe).
Mere association of a product with a place of origin -
a mechanism provided through such things as the 'Australian
Made' label - does not necessarily signify quality. The
second level of geographical indication - often referred
to as appellation of origin (or denomination) - accordingly
seeks to signal the particular product's quality.
Rights to the appellation are typically restricted to
producers that are located in the particular location,
are registered and abide by a regulatory regime that emphasises
specific production techniques and standards. Registration
and supervision might be by a private sector body that
has government recognition.
Proponents of appellation schemes usually seek exclusive
use of the particular identifier and for example argue
that the term 'champagne' can only be used to characterise
a type of alcoholic beverage produced in the Champagne
region of France. That argument has persuaded some courts
outside France, for example
in New Zealand.
global frameworks
Geographical indication legislation emerged in the first
decades of last century, led by the wine industry in France.
It has since become a feature of national jurisdiction
in Europe, Australia and elsewhere.
Adoption has occurred on a push-pull basis, with lawmaking
reflecting domestic pressure (including potential use
of appellation schemes as a trade barrier, interest in
strengthening regional economies and preserving cultures
under threat from mechanisation) and international trade
negotiations.
The 1994 Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) includes specific protection
for geographical indications as a form of intellectual
property. Under Articles 22 to 24 TRIPS members
are required to "provide the legal means for interested
parties” to protect geographical indications, defined
as that
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.
Members
are required to prohibit
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 that misleads the public
as to the geographical origin of the good.
The
must accordingly
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.
Geographic
indications are to be protected
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.
However
geographical indications that might otherwise be prohibited
can continue in use if they have been in continuous use
since April 1984, a trademark was secured in good faith
prior to TRIPS or the indication is the customary name
of a variety grown in the particular country.
Treaties administered by the World Intellectual Property
Organization (WIPO) provide for protection of geographical
indications, primarily the 1883 Paris Convention for
the Protection of Industrial Property and the 1960
Lisbon Agreement for the Protection of Appellations
of Origin & Their International Registration.
The Paris Convention indicated that
the
protection of industrial property has as its object
patents, utility models, industrial designs, trademarks,
indications of source or appellations of origin, and
the repression of unfair competition.
Under
the Lisbon Agreement
an
appellation of origin is the geographical name of a
country, region, or locality, which serves to designate
a product originating therein, the quality and characteristics
of which are due exclusively or essentially to the geographical
environment, including natural and human factors.
evolution
The 2000 OECD report on Appellations of Origin &
Geographical Indications in OECD Member Countries: Economic
& Legal Implications (PDF)
notes that
we
find a number of different situations, with countries
or country groups having various definitions and systems
of protection, which may further differ from one product
to another. One group of countries not only accepts
and protects geographical indications but quite some
time ago developed a more specific form of geographical
name, the appellation of origin. This concept is not
found in the law of all OECD countries. Among the countries
giving special protection to appellations of origin,
some refer back to a lengthy tradition. This is the
case with some European Union countries, in particular
France, Italy, Portugal and Spain. On the other hand,
Korea has just recently adopted a special system to
protect geographical names which bears a close resemblance
to the systems covering appellations of origin.
Countries with a long experience of appellations of
origin have set a specific system of legal protection
in place. The systems established in the European countries
mentioned above, with a number of shared characteristics,
are the basis for the single system approved by the
European Union in Council Regulation (EEC) No. 2081/92
on the protection of geographical indications and designations
of origin for agricultural products and foodstuffs.
That system does not apply to wines and spirits, which
are covered by separate European regulations.
The system introduced by the European Union, like the
national systems on which it is based, is characterised
by a series of legal provisions and institutions. There
are two names to be protected: the designation (appellation)
of origin and the geographical indication. Designation
of origin means "the name of a region, a specific
place or, in exceptional cases, a country, used to describe
an agricultural product or a foodstuff originating in
that region, specific place or country, and the quality
or characteristics of which are essentially or exclusively
due to a particular geographical environment with its
inherent natural and human factors, and the production,
processing and preparation of which take place in the
defined geographical area".
Geographical indication means "the name of a region,
a specific place or, in exceptional cases, a country,
used to describe an agricultural product or a foodstuff
originating in that region, specific place or country
and which possesses a specific quality, reputation or
other characteristics attributable to that geographical
origin and the production and/or processing and/or preparation
of which take place in the defined geographical area".
The European Union thus protects two denominations,
which relate to two different levels of link between
product and geographical origin. For the designation
of origin the link is essential, and the entire production
process must take place in the defined geographical
area, but for the geographical indication the link is
less firm since it is sufficient that either production,
processing or preparation take place in the area specified.
The reputation element is found only in the definition
of geographical indication.
Following voluntary initiatives by groups of producers,
Member States forward applications for registration
to the European Union after conducting national checks
that they comply with the criteria set down in Regulation
(EEC) 2081/92. Once a product has been recognised as
a protected designation of origin (PDO) or protected
geographical indication (PGI), it is automatically recognised
and protected in all EU countries against misuse of
any kind. Protection relates to the name in itself and
applies throughout the EU countries, without reference
to reputation or to any loss to consumers. To qualify
for registration, producers must form groups and show
the relevant national body proof of the link between
product and geographical area, and product specifications
which strictly regulate the production process (from
raw materials to processing and packaging), and which
they undertake to observe in order to make use of the
registered name. Compliance with the specifications
has to be monitored by an independent, objective and
impartial structure.
Elsewhere, especially in common law countries, we find
systems of protection for geographical indications embodied
in existing laws on trademarks, unfair trade practices
and consumer protection. Australia, Canada and the United
States are in this group, together with the United Kingdom,
although the latter is a special case
In these countries, protection for geographical indications
is covered by trademark law. As a rule, a geographical
indication cannot be registered as a trademark, but
it can be registered as a certification mark. In that
case certification may apply to materials, methods of
manufacture, quality, or geographical origin. Registration
as a certification mark entails presenting user regulations.
It cannot be used and marketed by its owner. Accordingly,
producers form groups and the group itself becomes the
owner of the certification mark, which is then used
and marketed by the producers themselves.
The development of a specific legal
system based on appellation of origin reflects the
idea that some products have specific characteristics
related to their geographical origin and a traditional
processing method often developed over centuries which
are part of a common heritage of that community. The
existence and development of a specific legal framework
with regard to these products was also considered to
be important to avoid the risk of “free riders”
who do not respect the specifications and who could
therefore threaten the quality of the finished product.
The result is a semi public/semi private system in which
it is not always clear how costs and benefits are distributed
between producers and consumers. In some European countries,
producer groups pay for the registration of their appellation
of origin so as to defend on a legal basis their product’s
name in third countries. In other European countries,
public systems intervene to help producers defend appellations
of origin in third countries and producers do not pay
for the registration of their products. The notion that
a common good belonging to a specific territory could
be privately owned, as is the case with trademarks or
collective marks, is not accepted.
Another group of countries applies the already existing
trademark system to protect geographical names. Geographical
names, through the use of private trademarks, collective
trademarks or certification
trademarks, are recognised as privately owned. These
countries believe that a separate system for the protection
of geographical indications is not warranted. Private
persons acquire traditional trademark rights on the
basis of the exclusive use of that geographical name,
which results in the term becoming distinctive of that
good (Meltzer, 1999). Concurrently, it is recognised
that when many persons or the inhabitants of a region
wish to use the same geographical name, that name can
be used by all persons as a certification mark indicating
a regional origin.
A number of countries, led by the EC, are seeking to
extend the enhanced level of protection afforded to
wines and spirits in Article 23 of the TRIPs Agreement
to all products, including agricultural products, processed
foods, beverages and handicrafts. These products already
receive a level of protection under the existing TRIPs
Agreement and no credible evidence has been presented
that this protection is inadequate. Australia does not
believe there is any mandate in the Doha Declaration
to negotiate GI-extension, but has agreed to participate
in consultations. Australia’s view is that the
costs of GI-extension far outweigh any perceived benefits.
Some developing countries are supporting the proposal
for higher protection because of the potential they
see for increasing the value of ‘flagship’
products such as ‘Thai silk’ and ‘Kenyan
coffee’. While some developing country and other
developed country producers may possibly benefit from
increased GI-protection for one or two products, the
major beneficiary of extension would be the EC which
has almost 700 products registered as GIs within its
own territory. On the other hand, the costs of extension
would fall overwhelmingly on non-EC countries who would
have to protect all of Europe’s GIs with little
in return. GI-extension would not in itself, for example,
guarantee access to export markets.
The negative impact of GI-extension is likely to be
felt most acutely by new world agricultural producers
such as Australia, which produces a range of food products
that Europe claims as its own, such as feta and parmesan,
despite the fact that Australia, as an immigrant nation,
has been producing and trading these products for decades.
The costs of GI-extension are also likely to fall heavily
on developing countries who do not necessarily have
the legal and administrative capacity to provide the
increased level of protection for GIs sought by the
EC.
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