Legal Impacts of Introduction of Geographical Indications in the Trademark Law - Essay Example

Running head: Intellectual Intellectual Property - Trade Marks - UK ___________ ________________________ ________________ Intellectual Property - Trade Marks - UK Introduction Intellectual property, often known as IP, allows creators to own their creativity and innovation in the same way that they can own physical property. The owner of IP can control and be rewarded for its use, and this gives recognition and security and, thereby, reasons for further innovation and creativity which benefits the society at large. In some cases IP gives rise to protection for mere ideas but in some others more elaboration and commercialization should occur before protection issues can arise. Similarly it is normally not feasible to protect IP and gain IP rights (or IPRs) unless they have been applied for and granted, but some IP protection such as copyright arises automatically, without any registration, as soon as there is a record in some form with some authority or system of what has been created. The four main types of IP are: patents for inventions - new and improved products and processes that are capable of industrial application; trade marks for brand identity - of goods and services allowing distinctions to be made between different traders; designs for product appearance - of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture or materials of the product itself or its ornamentation and, copyright for material - literary and artistic material, music, films, sound recordings and broadcasts, including software and multimedia .In this paper we concentrate on trade marks IPs which are associated with the trade of goods and services and ,in particular, to those that arise in the international trade of goods and services. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) TRIPS, was signed on January 1, 1995.The agreement provides for floor standards for the protection of defined intellectual property types and the enforcement of associated intellectual property rights.TRIPS,in turn ,was the outcome of the synthesis of deliberations of two earlier international conventions: (1) the Paris Convention for the Protection of Industrial Property (Paris Convention) and (2) the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). Paris Convention Article 1(3) defined industrial property to include "all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour." Paris Convention Article 1(2) further provided that the protection afforded to industrial property included "indications of source or appellations of origin." Thus the adoption of the TRIPS Agreement heralded an important development for the global recognition of geographical indications. However, significant controversies continued to hover on discussions of this issue, as and when they took place, either at the WTO and other platforms of international trade. For instance, there were and are substantial differences of opinions about the manners in which registration of geographical indications under article 23.4 would finally be implemented and recognized. Take, for instance, the case of quite a few developed and developing countries who desire to extend special protection which was available only to wines and spirits to other products. In short such countries are pressing hard for special protection list to be expanded substantially. On issues of public health discussions on geographical indications resulted in a clear North-South divide. However, on issues of industrial products and food products the reaction has been divergent on very many important issues. Both developed and developing countries alike- maintain quite differing positions on such matters. This clearly shows that all such countries view differently the economic impacts of the system of geographical indications. This extends to domestic goods being recognized in foreign markets as well as the domestic recognition of the foreign geographical indications as means to foster global trade. In some specific cases developing countries are very enthusiastic about benefits that are likely to accrue from enhanced protection under domestic geographical indications. Accordingly, some geographical indications from developing countries have gained global recognition; however, Europe leads in the overall number of registered geographical indications leaving the moot question still alive if the resource rich and naturally well endowed developing countries would ever come at par with developed nations on this count. This paper attempts to discuss the definition of geographical indications and the modes of protection thereof. Second the paper illustrates briefly some of the existing national systems for protecting geographical indications. Thereafter it goes into the examination of impacts of the trade mark law of geographical indications including the legal impact. What are Geographical Indications Under Article 22(1) of the agreement, geographic indications are defined as those names "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 geographic indication." Thus, the deciding factor if a product name is a geographic indication under TRIPS is to check and verify if the product has a specific quality, reputation, or other characteristic/attribute of the product that essentially accrues due to the particular location in which the product originated. Popular instances of food Geographic Indications can be cited as "Scotch" whisky and "Parmigiano-Reggiano" cheese. A geographical indication of source is, thus, a sign used in relation to goods in order to indicate their geographical origin. Generically and conceptually, two main classes of geographical indications of source may be identified as below: (i) Simple and absolutely quality-neutral geographical indications of source (manifesting in phrasal declarations like 'made in _______').Here product characterstics, attributes, qualities, features are not mentioned to indicate at a linkage between the source of origin and such attributes. Pure geographical indications work on stand alone basis to claim as trade marks and rights accrue accordingly. Thus the use of an indication of source on a given product is merely constrained by the condition that that product originated from the place designated by the geographical indication of the source. (ii) On the other hand we have more elaborately defined 'qualified geographical indications'. These indications have a specific descriptive meaning and connotation as because the characteristics, quality, features or reputation of carrying products are also essentially attributable to a country, region or locality-or, in short, to a particular geographical location. These indications normally constitute in a name which is used to designate a product. These geographical indications are euphemistically called "appellations of origin" in technical language (Actes du Colloque de Lausanne,1983). Geographical indications can as well be classified either as direct or indirect indications. Though usually geographical indications comprise of straight geographical names ("direct" indications); they may also be based on non-geographical names (e.g. Mozart-Kugeln which is associated by the consumers with Austria, and Ouzo and Grappa associated with Greece and Italy, respectively)or symbols(some symbols may be popular enough of giving direct clue to the origin of goods without even ever mentioning its place of origin,e.g. the Eiffel Tower for Paris, the Matterhorn for Switzerland, the Tower Bridge/Times Square/Big Ben for London, TajMahal for India, the colors of the French flag for cigarettes, the statue of Liberty) , if so perceived and recognized by the consuming public as identifying certain geographical origin. These are generally called "indirect" geographical indications. European approach has influenced the shaping of the TRIPS in a substantial manner. In accordance with this approach geographical indications comprise an essential component of intellectual property if the designated product possesses characteristics,features,attribures, reputation or quality that are essentially attributable to its geographical origin . This implies that stated concept is applicable only to qualified indications. However, simple geographical indications not carrying such products' attributes can also be protected against misuse, using any of the concepts of disciplining of unfair competition, consumer protection or trademark law, but they are not the categories of intellectual property that WTO Members are bound by agreement or concert to protect. There are definitional and conceptual differences in the interpretation of the term geographical indications as is understood by various global, regional conventions and agreements. Lisbon agreement of 1958 varies slightly from the TRIPS on the one hand and EC Council Regulation No.2081/92 on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs has a slightly different connotation of the phrase Geographical Indications on the other. In Lisbon Agreement of 1958 it is the product which is to have geographical indication to cover geographical name which may be a country, a region or a locality. Product quality or characteristics are due exclusively or essentially to geographical environment which includes natural and human factors. TRIPS ,on the other hand makes these prescriptions for good to cover geographical indication, which may be a country, a region or a locality. Quality or reputation or other characteristics attributable to a good may be derived only from geographical origin. EC 1992 resolution, on the other hand, covers only agricultural product foodstuff which carries the name of a country ( in exceptional cases),a region, or a specific place. Quality or characteristics of such agricultural product foodstuff are due exclusively or essentially to geographical environment which covers natural and human factors production, processing and preparation in defined area.(Audier,1997).Thus ,though slight the definitional differences may lead to conceptual differences and may be reasons enough for conflicts in interpretations of meaning and searching equivalence. Similarly in contrast to the definition of geographical indication in these three documents, Article 1712 of the NAFTA Agreement, defines geographical indications in a manner which seems to be equivalent to the concept of "indication of source" (Gevers, 1995) Apart from different interpretations of various definitions and concepts there have been several implementation and enforcement issues at stake in reference to the international trade mark law as it evolved from the TRIPS of 1995. World Intellectual Property Organization(WIPO) was formed in 2000 as an organization to coordinate intellectual property rights definition,registration,implementation and enforcement on an even keel across national jurisdictions in member stares. The method followed is primarily through the process of consultation and education in order to reach consensual and consistent approaches so as to reduce conflicts. One hundred and seventy-five States were party to the Convention Establishing the World Intellectual Property Organization (WIPO) on December 31, 2000. The first major deficiency in the system of international trade mark law observed by WIPO was the weak intellectual property systems prevailing in least developed jurisdictions. Such systems were likely to give rise to enormous amount of litigation as such systems could hardly compete in developed jurisdictions by matching their high enforcement standards. IPO has been making vigorous efforts to address these issues in least developed jurisdictions. "The relative weakness of the intellectual property system in least-developed countries (LDCs) impedes their ability to compete effectively in the market for innovation. This weakness covers both the public and private sectors and involves a lack of managerial and technical capacity, deficiencies in the public administrative and legal systems, as well as in physical and equipment infrastructure. The Least-Developed Countries Unit of WIPO, in cooperation with the rest of the secretariat, created a set of focused activities that addresses those problems, with the aim of integrating LDCs in the global process of intellectual property development. The main focus throughout the year was on preparations for the implementation of the TRIPS Agreement, technology transfer, innovation policy and collective management of copyright and related rights. Close attention was also paid to the preparation and enactment of laws, rules and regulations governing intellectual property in LDCs with regard to copyright and related rights, geographical indications, competition and plant varieties, as well as consideration of the protection of traditional knowledge. The national needs of 16 LDCs were supported through individual nationally focused action plans (NFAPs) determined jointly by WIPO and each government." (WIPO,2000). Similarly the confusing variety of national prescriptions in respect of systems of registration, implementation and enforcement made apparent an immediate need for an international organization like WIPO to intervene with harmonizing and rationalizing platform so as to reduce to minimum differences in such issues and reduce international litigation. IPO went about this agenda in right earnest in following manner: " Building on the work done in 1999, the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) made major progress during the year. It agreed on a set of measures to simplify and harmonize procedures relating to trademark licenses. These provisions were adopted as a Joint Recommendation by the WIPO Assemblies in September, setting out a maximum list of indications and elements that may be required by national or regional authorities with respect to a request for recordal, cancellation or amendment of a recordal for a license. The Joint Recommendation complements the Trademark Law Treaty (TLT)". (WIPO,2000) It may be noteworthy to note that the SCT continued discussions throughout the year 2000 on draft provisions on the protection of marks, and other industrial property rights in signs, on the Internet. The internet had emerged as a vital platform to carry out international trade. The draft provisions were intended to help courts and competent authorities apply existing national laws to legal problems resulting from the use of marks or signs on the Internet. The Committee agreed in principle on provisions intended to be applied in determining whether use of a sign on the Internet has contributed to the acquisition, maintenance or infringement of an industrial property right in a mark or other sign in a particular country. Those provisions also set up conditions allowing the coexistence of rights in identical or similar marks or signs on the Internet, and introduce a principle of proportionality in remedies provided for infringement. The Committee also considered a study prepared by the secretariat on possible solutions for conflicts between trademarks and geographical indications, and for conflicts between homonymous geographical indications. More general questions concerning geographical indications will be studied, to arrive at a better understanding of all legal issues involved(WIPO,2000). IN addition the WIPO has been coordinating other regional registration systems which exists basically in some harmonized form to TRIPS. Two instances are in order here one that of Madrid (Marks) System and the other that of the Hague (Industrial Designs) System. IPO annual report for the year 2000 reports as follows in respect of these two systems: Madrid (Marks) System In sharp contrast to the minimal increase in international trademark registrations in 1999, the number of registrations grew in 2000 by some 15 percent over the preceding year, to reach a figure close to 23,000. Renewals, for their part, increased by 20 percent to almost 6,900. While those increases no doubt reflect a general international trend, they are certainly due also in good part to the widening of the membership of the Madrid system. In the course of the year 2000, nine States became bound by the Madrid Protocol (one of which joined the Madrid Agreement at the same time), bringing the total number of member States of the Protocol to 49 and the total membership of the Madrid system to 67. Throughout the year, the International Bureau continued to promote awareness of the Madrid system and its effective use(WIPO,2000) Hague (Industrial Designs) System Registration activity under the Hague international design deposit system also rose significantly in the year 2000. The number of deposits and renewals of industrial designs went up by 8 percent to reach a total of 7,300. A special exhibition of new designs of the world-famous Swatch watches was successfully held in February at WIPO to mark the 50,000th deposit under the 1960 Act of the Hague Agreement(WIPO,2000). Knowing and comparing different forms of protection available in different countries is useful as it helps in the global enforcement of rights based on geographical indications. For instance European or Mexican approach for the definition, registration and enforcement of a geographical indication will vary considerably from that resorted to in the United States. While in the former instance the geographical indications receive, under certain conditions, special protections, in the latter instance such protections come in a variety of ways, including unfair competition, federal (such as trademark law) and state statues and regulations. Specifically, the US Trademark Act of 1946, as amended, provides for the protection of geographical indications as certification marks (Beresford, 1999). A study the international systems of protection of trade mark law exhibit similarities and such systems can be divided into broad generic classes. Thus we can have absolute systems wherein protection is afforded against use by any non-authorized party of the indication whether the public may be misled or not, as established. This special title or sui generic protection is based on a public or administrative act (WIPO, 1998). Antigua and Barbuda, Barbados, Trinidad and Tobago, St. Lucia, Dominica and Jamaica have sui generis legislation drafted or already in force(VanDuzer & Gervais, 2002).Or we can have a system where in protection against the use of an indication is afforded when such indications is deceptive or misleads the public, as provided for by the by article 21.2 (a) and 21.3 of the TRIPS Agreement in the framework of trademark law. Protection is also afforded against sole acts of unfair competition committed using geographical indications, as covered by Article 10 of the Paris Convention. Some systems have provisions for protection against acts of passing-off, as provided for in common-law countries. Passing-off is defined as misrepresenting one's business goods or services as that of another's, and which causes injury and harmful commercial consequences to the latter. This approach has been followed, for instance, in United Kingdom quite extensively (Blakeney, 2001).Protection is also available against the 'false' use of an indication, when it does not indicate the true origin of the product under Article 10(1) of the Paris Convention. Impacts of Geographical Indications Economic impacts of Geographical Indications are rather easily seen. The use of geographical indications akin to use of trademarks tends to resolve the "information asymmetry"( Goldstein, 1993; Grossman and Shapiro, 1988) of consumers thus helping reduce their transactions costs as consumer can identify and patronize products carrying geographical indications. As far as producers and manufacturers are concerned, the connection between product and region allows for niche marketing, brand development and extracting value from reputable indications (Rangnekar, 2002). Product differentiation and the resultant monopolistic competition through the use of a geographical indication allow any producer/manufacturer to raise so called economic rents on the sale of such goods/products. This a move away from the perfect competition (Mansfield, 1994).Other economic gains, which are indirect, may include the possibility of generating employment and increasing income or retaining population in certain regions (Vital, 1999). Legal impacts of introduction of geographical indications in the trade mark law are numerous. Of particular interests are legal impacts in the arena of trade over internet and depiction or misrepresentation of geographical indications over the internet. Trademark law has historically evolved more practically rather than theoretically in the everyday commercial context and the practical flavor have so strong that it has afforded little opportunities to carry out research in its foundations or into the origins or function of the trademark system. Some exceptions studies that have substantial research inputs exist but are dated quite old. (E.g. Schechter, 1925; Rusto, 1955; Paster, 1969 and one recent one, Pickering, 1998). This lack of research has proven to be a difficulty in developing the law. However, the trends in evolution of the law is fairly clear: initially trade mark law in UK jurisdiction had the objectives of providing for protection of a trademark as an identifier of origin (Drescher, 1992) and now the shift has been to give way to a wider notion of its value as an asset and its pivotal role in advertising and building a brand(.Tollington,2001;Belson,1999). Further a noticeable movement has taken place in that trade mark law has stopped being a totally consumer-protection oriented law, to a law that exhibits an increasing awareness of a trade mark's inherent value to the producer (Jaffey,1998).Now there has been a corresponding increase in the scope of protection available by re-interpreting 'consumer confusion'(Wurtenberger,2002; Harris,1995)more broadly and including 'dilution'(Horwitz & Kandis,1999; Groves,1998;Kerdel,2001) in the proprietor's stock of remedies to protect a mark's uniqueness and abilities to sell. Moreover the issue of trade marks has today grown into multiple directions with varieties available in the form of 3-dimensional marks becoming registerable,(Firth,2001;Strobele,2001) and literally even distinctive colors(Dawson,2001), fragrances(Burton,1995) and sounds(Gielen,2002) can ,in principle, be owned and reckoned as trademarks. In addition to have a substantial expansion of the registered trademark system to newer areas and vistas, the tort of passing off, in the UK, has developed sufficiently to result in definition of new associated rights to such claims.(Koh,1998;Spense,1996)The recent expansions in the trade mark law include protection of geographical indications, (Blankley,2000;Dawson,1990) the trade-dress of a product (Andersen, 1996) and is moving towards a right to publicity (McGee,2000). However, these developments essentially expanding the arena of use of the trade mark law do have associated costs. Primarily, the first consequence is that there does not appear to be a clear and common understanding of the rational basis for protection. This necessitates development of newer tests for checking and verifying infringements. The more the trade marks the more the events of infringement. The finer the definitions the more complicated are the claims and counter claims. The more subtle the goods and products, the more difficult it becomes to reduce to legal words the infringements. In such circumstances often it becomes imperative to develop interpretational skills of the various infringement tests. There are numerous difficulties in defining boundaries. Trademark related monopoly interests are virtually colliding up against the interests of competitors in the increasingly controversial areas of parallel imports as well as in comparative advertising. It is frequently put forward that both these commercial practices benefit consumers and it could be detrimental to such consumers if overzealous protection of proprietary interests is afforded. Amongst consumers themselves and the public domain, there is growing concern and awareness that the absence of a well developed "fair use" type of cannon in this arena of the trade mark law places unreasonable restrictions on human rights such as the freedom of speech and unduly undermines the public domain. The fact that the world has become one small market place, where trade for so many products has become internationalized, means that virtually as soon as they are recognized in the country of origin a geographical indication will be published, in some manner or other, even if only through the internet, in every country of the world(Worlwide,2003). Worldwide Symposium on Geographical Indications, organized by WIPO ,in 2003 had an interesting case study presented there in. It was titled A "first in time" case study - why the principle isn't always appropriate. This study stated that ,"the application of rules or maxims, whilst seemingly attractive, can work serious injustice. A case in point is the current dispute in Australia between those persons who wish to register "Great Western" as a geographical indication and Southcorp Wines which is using that name as a trade mark. If the maxim "first in time" were to be applied as the ultimate test, then the history books make it clear that the name should be registered as a geographical indication: its use as a geographical indication predates adoption of name as a trade mark by at least five years. 30. However, I think that it is critical to bear in mind the fact that those five years occurred between 1855 and 1860 (or thereabouts) and the name "Great Western" has coexisted as an (unregistered) geographical indication and as an (unregistered) trade mark for the last 143 years. It would make little sense on an equitable basis to allow the region to be registered as a geographical indication if the result was that it could then not be used by Southcorp Wines as a trade mark. The so-called "simple" answer of applying the "first in time" principle does not always produce equity and would not do so in this case (Worlwide, 2003). In conclusion it can be seen very clearly that geographical indications have been widely accepted as layered explanations to trade marks. Either in the form of simple plane and direct references to the source of origin or in the forms of carrying product qualitative connotations, geographical indications have become the cornerstone of the trade mark law of today as has been arrived at after global consensus under TRIPS. However, national, regional variations and variations introduced by regional agreements and treaties on trade marks have confounded the definitional and conceptual issues. Not much has been achieved in terms of harmonizing these differences and national definitions still remain quite divergent. This is particularly the case with least developed countries (LDCs) where such issues are still being examined for wide implementation so as to have global implications. Some LDCs have, however taken initiatives in modeling their trade mark law systems on the lines already established by some regional agreement subscriber nations. However such definitional and conceptual issues apart in UK and in several jurisdictions the scope of trade mark law has expanded sufficiently to increase larger number of trade marks, to include more products and to include more areas. This has given rise to greater possibilities of conflicts and claims. For this the trade mark law has to move from its predominant practical moorings to developing theoretical foundations and structures to have a stockpile of infringement tests to cover a variety of situations. The trade mark legal practitioners have also to develop advanced interpretation skills of such infringement tests. In the end all authorities must remember that growing number of geographical indications may work to harm consumer interests and as a logical outcome even eat into the utility of having geographical indications at all. References Actes du Colloque de Lausanne. (1983), Les indications de provenance et les appellations dorigine en droit compar, Librairie Droz, Geneve. Audier, Jacques. (1997), Protection of Geographical Indications in France and Protection of French Geographical Indications in Other Countries; in Symposium on the International Protection of Geographical Indications in the Worldwide Context; WIPO; Hungary; p 241- 242. Gevers, Florent .(1995), Conflicts Between Trademarks and Geographical Indications. The Point of View of the International Association for the Protection of Industrial Property (AIPPI), WIPO, Symposium on the International Protection of Geographical Indications, Melbourne, April 5-6. World Intellectual Property Organization(WIPO).(2000). Annual Report 2000. 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