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Inequity of Harmonisation: TRIPS & Geographical Indications

Naik, Vasundhara (2003)
Department of Law
Abstract
Why has there been a spate of debate and discussion on the matter pertaining to protection of names such as Champagne, Havana, Tequila, Basmati, and Darjeeling etc.? What are geographical indications and why does any dialogue at the international level on the issue result in a political and legal dead end? The aim of this research paper has not only been to follow these debates but also to analyse them in the context in which they arose. The basic purpose of geographical indications is to identify a product. It also carries with it a message from the producer to the consumer about the special characteristic and features attached to it. When used accurately, a geographical indication can constitute a valuable marketing tool for producers.... (More)
Why has there been a spate of debate and discussion on the matter pertaining to protection of names such as Champagne, Havana, Tequila, Basmati, and Darjeeling etc.? What are geographical indications and why does any dialogue at the international level on the issue result in a political and legal dead end? The aim of this research paper has not only been to follow these debates but also to analyse them in the context in which they arose. The basic purpose of geographical indications is to identify a product. It also carries with it a message from the producer to the consumer about the special characteristic and features attached to it. When used accurately, a geographical indication can constitute a valuable marketing tool for producers. Moreover, geographical indications constitute a useful tool for protecting traditional knowledge. There has been a long history of protecting geographical indications. Traditionally, several countries, especially in Europe have protected their geographical indications. However, protection and enforcement was regional and sporadic. Even while earlier multilateral treaties involving geographical indications have existed, the TRIPS Agreement seeks to establish standards and norms, it introduces a new category of intellectual property rights - geographical indications. In its introductory paragraphs the paper examines the link between human rights and intellectual property law. The author attempts to establish that economic rights are recognised human rights and thus any international legal instrument that would affect economic rights by way harmonising intellectual property law must take into account the human rights perspective. Any study relating to geographical indications, will necessarily have to take into account the TRIPS Agreement and the politics leading up to the negotiations resulting in the final acceptance of the Agreement. Chapter 2 of the paper discusses the importance of the TRIPS Agreement in the intellectual property rights arena and effectiveness of implementation of the Agreement in various jurisdictions. Chapter 3 focuses on the definitions and concepts that are closely related to geographical indications. The elements of concepts such as ''indications of source'' and ''appellation of origin'' are dealt with in the context of the legal instruments in which they find mention. Chapter 4 broadly surveys the spectrum of multilateral protection of geographical indications prior to the TRIPS Agreement. The Paris Convention, The Madrid Agreement and The Lisbon Agreement are the international legal instruments that have been scrutinised in relation to the protection that they provided for geographical indications. The discussion also focuses on the limitations of each of these instruments, thus leading up to incorporation of geographical indications under the TRIPS Agreement. Chapter 5 makes a brief mention of bilateral and regional agreements relating to geographical indications. Chapter 6 examines the gamut of geographical indications protection under the TRIPS Agreement. Describing the negotiations process and the basic drafting proposals from several WTO Member States, the final compromise text that was adopted, the chapter gradually leads up to the elements of definition of a geographical indication under the Agreement. This is followed by a detailed discussion on the minimum standards of protection for all products under Article 22 of the TRIPS Agreement. Chapter 7 reviews the additional protection accorded to wines and spirits under the TRIPS Agreement. Much of the controversy surrounding geographical indications is focused on this issue and the interpretation of Articles 23 and 24 of the Agreement. This chapter also analyses the exceptions to the obligation of Member States towards the providing for protection of geographical indications. The chapter also includes a discussion on the issues for future negotiations, incorporating the talks concerning establishment of a multilateral system of notification and registration as well as the various proposals put forward under the subject. Chapter 8 explains the link between protection of geographical indications and developing countries. In this context the connection between geographical indications and traditional knowledge is explored. The chapter also includes a specific study of the law relating to protection of geographical indications in India. Further, in an attempt to evaluate the practical realities of geographical indications protection, this chapter includes two case studies. The case studies relate to protection of two geographical indications, namely Basmati rice and Darjeeling tea and the efforts of the Indian government in protecting and enforcing them as such in several jurisdictions. Lastly, the conclusion is an endeavour to reflect upon unresolved issues within the TRIPS Council as well as among the Member States. By highlighting the unjustified imbalance within the TRIPS Agreement the author finally concludes that unless the imbalance is set right, the implementation of the TRIPS Agreement, especially in relation to geographical indications protection is in a rather precarious position. Significant amount of information for this paper has been collected by means of secondary research through published works by way of books, articles in law journals, newspapers etc. Substantial material has also been collected through published works on the internet. Some of the materials and information in the section relating to protection of Indian geographical indications are confidential and the author has access to this material only by virtue of working with K&amp&semicS Partners, the law firm that represent the government of India in protecting its geographical indications worldwide. Materials and ideas from other sources have been duly acknowledged. Lastly, while this paper is an attempt to examine the history, politics and the law relating to geographical indications - protection and enforcement, the issues discussed and the extent of debate and deliberation is merely illustrative of the controversy and in no manner claims to be exhaustive. (Less)
Please use this url to cite or link to this publication:
author
Naik, Vasundhara
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
Human Rights Law and Intellectual Property Rights
language
English
id
1554739
date added to LUP
2010-03-08 15:22:34
date last changed
2010-03-08 15:22:34
@misc{1554739,
  abstract     = {Why has there been a spate of debate and discussion on the matter pertaining to protection of names such as Champagne, Havana, Tequila, Basmati, and Darjeeling etc.? What are geographical indications and why does any dialogue at the international level on the issue result in a political and legal dead end? The aim of this research paper has not only been to follow these debates but also to analyse them in the context in which they arose. The basic purpose of geographical indications is to identify a product. It also carries with it a message from the producer to the consumer about the special characteristic and features attached to it. When used accurately, a geographical indication can constitute a valuable marketing tool for producers. Moreover, geographical indications constitute a useful tool for protecting traditional knowledge. There has been a long history of protecting geographical indications. Traditionally, several countries, especially in Europe have protected their geographical indications. However, protection and enforcement was regional and sporadic. Even while earlier multilateral treaties involving geographical indications have existed, the TRIPS Agreement seeks to establish standards and norms, it introduces a new category of intellectual property rights - geographical indications. In its introductory paragraphs the paper examines the link between human rights and intellectual property law. The author attempts to establish that economic rights are recognised human rights and thus any international legal instrument that would affect economic rights by way harmonising intellectual property law must take into account the human rights perspective. Any study relating to geographical indications, will necessarily have to take into account the TRIPS Agreement and the politics leading up to the negotiations resulting in the final acceptance of the Agreement. Chapter 2 of the paper discusses the importance of the TRIPS Agreement in the intellectual property rights arena and effectiveness of implementation of the Agreement in various jurisdictions. Chapter 3 focuses on the definitions and concepts that are closely related to geographical indications. The elements of concepts such as ''indications of source'' and ''appellation of origin'' are dealt with in the context of the legal instruments in which they find mention. Chapter 4 broadly surveys the spectrum of multilateral protection of geographical indications prior to the TRIPS Agreement. The Paris Convention, The Madrid Agreement and The Lisbon Agreement are the international legal instruments that have been scrutinised in relation to the protection that they provided for geographical indications. The discussion also focuses on the limitations of each of these instruments, thus leading up to incorporation of geographical indications under the TRIPS Agreement. Chapter 5 makes a brief mention of bilateral and regional agreements relating to geographical indications. Chapter 6 examines the gamut of geographical indications protection under the TRIPS Agreement. Describing the negotiations process and the basic drafting proposals from several WTO Member States, the final compromise text that was adopted, the chapter gradually leads up to the elements of definition of a geographical indication under the Agreement. This is followed by a detailed discussion on the minimum standards of protection for all products under Article 22 of the TRIPS Agreement. Chapter 7 reviews the additional protection accorded to wines and spirits under the TRIPS Agreement. Much of the controversy surrounding geographical indications is focused on this issue and the interpretation of Articles 23 and 24 of the Agreement. This chapter also analyses the exceptions to the obligation of Member States towards the providing for protection of geographical indications. The chapter also includes a discussion on the issues for future negotiations, incorporating the talks concerning establishment of a multilateral system of notification and registration as well as the various proposals put forward under the subject. Chapter 8 explains the link between protection of geographical indications and developing countries. In this context the connection between geographical indications and traditional knowledge is explored. The chapter also includes a specific study of the law relating to protection of geographical indications in India. Further, in an attempt to evaluate the practical realities of geographical indications protection, this chapter includes two case studies. The case studies relate to protection of two geographical indications, namely Basmati rice and Darjeeling tea and the efforts of the Indian government in protecting and enforcing them as such in several jurisdictions. Lastly, the conclusion is an endeavour to reflect upon unresolved issues within the TRIPS Council as well as among the Member States. By highlighting the unjustified imbalance within the TRIPS Agreement the author finally concludes that unless the imbalance is set right, the implementation of the TRIPS Agreement, especially in relation to geographical indications protection is in a rather precarious position. Significant amount of information for this paper has been collected by means of secondary research through published works by way of books, articles in law journals, newspapers etc. Substantial material has also been collected through published works on the internet. Some of the materials and information in the section relating to protection of Indian geographical indications are confidential and the author has access to this material only by virtue of working with K&amp&semicS Partners, the law firm that represent the government of India in protecting its geographical indications worldwide. Materials and ideas from other sources have been duly acknowledged. Lastly, while this paper is an attempt to examine the history, politics and the law relating to geographical indications - protection and enforcement, the issues discussed and the extent of debate and deliberation is merely illustrative of the controversy and in no manner claims to be exhaustive.},
  author       = {Naik, Vasundhara},
  keyword      = {Human Rights Law and Intellectual Property Rights},
  language     = {eng},
  note         = {Student Paper},
  title        = {Inequity of Harmonisation: TRIPS & Geographical Indications},
  year         = {2003},
}