27th May 2004, Geneva

2004 Annual WTO Public Symposium

ORIGIN Round Table on Geographical Indications

Session 2: Case for Better GI Protection in the DDA Framework

Brig. Anil Adlakha, Vice President (Asia) - ORIGIN

Introduction

GI Products & Their Protection

Importance for Producers & Consumers

Protection of GIs In TRIPS

Multilateral Register

Doha Round

Conclusion

INTRODUCTION

As we have seen in the first session, GIs can contribute in a very efficient way to promote sustainable development in our countries. They are a key instrument to ensure that localized products can have their own role to play in the context of a globalised trade economy. In this session, three speakers coming from all corners of the world, USA, Italy and China will explain to you why there is a need to better protect GIs in the WTO framework.

For my part, I would like to give you a rapid overview of the key elements for better GI protection on behalf of Basmati Rice producers. We are all aware that WTO was formed as a result of years of painstaking efforts on the part of Govts and other bodies to establish a globally acceptable basis for a new economic order. The Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement under this WTO regime represents the resolve of all member countries to use IP as one of the means for achieving this balance. 

The Multilateral Trading System embodied in the World Trade Organisation has contributed significantly to economic growth, development and employment throughout the past fifty years and everyone is determined, particularly in the light of the global economic slowdown, to maintain the process of reform and liberalization of trade policies, thus ensuring that the system plays its full part in promoting recovery, growth and development. Every member has strongly been reaffirming that the principles and objectives set out in the Marrakesh Agreement Establishing the World Trade Organization must be sustained at all costs and rejecting the use of protectionism.  WTO members have constantly been confirming their commitment to the objective of sustainable development. They all are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive.

GI PRODUCTS & THEIR PROTECTION

As we have seen in the first session of this round table, Geographical indications are part and parcel of the cultures and traditions of a country. They are, therefore, of considerable importance for countries, both developed and developing since they contribute to the reputation of the products concerned and create goodwill among consumers. All well known GIs such as Champagne, Scotch Whisky, Basmati rice, Alphonso Mangoes, Darjeeling tea, Roquefort Cheese, Mexican Tequila, Argan Oil, Napa Valley Wine, Thai Silk and Malabar Pepper etc are what they are today because of sustained efforts by individuals and organizations to keep their mystique and aura in existence, promote and preserve the quality of these products and elevate them to a pedestal where they have become synonymous with their geographical origin.  A GI Product designates geographical location and provides some elements as to the quality of the product. However, such reputation and image with buyers are often abused by dishonest entities.

IMPORTANCE FOR PRODUCERS & CONSUMERS 

GIs are anchored to the particular region for which they come from and as such contribute to the socio-economic dynamics in many regions of the world. They also create and support jobs and encourage diversification in production. They allow producers and manufacturers to dedicate themselves to the commercialization of traditional products in response to the demands of quality-conscious consumers thus taking care of both producers and consumers. GIs also contribute to the conservation of natural resources and the preservation of native traditions and cultural heritage often reaching back to distant ancestors. As such, GIs are of importance to producers and manufacturers throughout the world, especially those in developing countries who need the means to put products on the market which are easily differentiated and identifiable via their geographic origin.  

Consumers can immediately recognize the origin of products. The improvement of protection for GIs at the international level will help the fight against the public being misled. A product whose name refers to or evokes a certain geographical region must be from that region. Such a protection facilitates the preservation of diversity and the quality of production in different parts of the world. Without this protection, producers of specific products will continue to be exposed to abusive uses of their geographical indications by producers in other countries who free ride on the reputation and recognition already established by those names in order to better sell products that do not bear the same qualities as the originals. Thus the original GI Products suffer financially and if not checked then they may permanently be obliterated.

PROTECTION OF GIs IN TRIPS The TRIPS Agreement contains a section exclusively devoted to the protection of GIs.  But, as will be explained by the three speakers of this round table, the TRIPS agreement currently does not provide for adequate or sufficient protection of geographical indications. This is why we need to obtain the extension of the additional protection granted to wines and spirits by Article 23 as well as the establishment of a legally binding multilateral register for GIs. Here I would like to say something about the Protection of Basmati, which presently, is entitled to only a general level of protection under Art.22 of TRIPS. At the general level, member countries are obliged to enact legal means for protection of GIs against deceptive or misleading use and other acts of unfair competition. 

However, the protection granted under Art. 23 to wines and spirits is a higher level of protection in comparison with Art. 22. Protection under this article requires member countries to prevent the use of GIs even if they do not imply that the wines or spirits originate in a place other than the true place of origin, even if a GI is used in translation or accompanied by de-localising terms/ qualifiers such as “type”, “kind”, “style” or the like (In other words, for wines and spirits, even in the absence of public deception as to origin, use of a particular GI would be prohibited).

In the absence of a higher level of protection as in Art. 23, protection of the Indian and all other GIs, at the international level requires larger resources for worldwide protection and enforcement. Today, we have already fought/ fighting around 100 Trade Mark cases in over 30 countries, who are piggy riding on the Name and Goodwill of Basmati not only in Agricultural products but other products like Baby Foods, Ancillary Services, Saffron, Coffee, Spices, Juices, etc. These legal battles world over has costs us fortunes, which any developing country can ill-afford. Thus, it can be seen that discrimination between the Haves and the Have-Nots under TRIPS introduces element of inequity and imbalance in the world trade order, which is not acceptable. This discrimination calls for either country specific WTO dispute settlement action or a campaign like we are doing today for amendment of Art. 23 of TRIPS, which would ensure an absolute level of protection and a uniform practicable legal regime for all GIs (not wines & spirits alone).

India, supported by the European Communities and their member states, other developed countries such as Switzerland and neighbouring countries such as Sri Lanka and Pakistan and other like minded countries (informally known as the Friends of GIs), have taken the stand before the TRIPS council that there are today no economic or systemic reasons for protecting GIs for certain products differently from others. Therefore, to sum up, it may be said that, with the world moving towards globalization and harmonization of IP rights and economies, uniform standards of protection of GIs are strongly called for to foster and nurture an equitable world trade order. The inexplicable discrimination against GIs for products other than wines and spirits, if not rectified, will lead developing countries such India to conclude that the TRIPS Agreement is just an eyewash. On a larger frame, the TRIPS council should also examine the difficulties faced by member states in enforcing GI rights internationally because of the dual jurisprudential systems and the lack of a uniform mode of protection for GIs.

MULTILATERAL REGISTER

Establishment of a Multilateral Registry for GIs would constitute a powerful complementary tool for concretely defending this intellectual property right. A registry at the international level would require a list of GIs to be officially recognized by all of the economic players in all countries of the world. Registration of a name in the registry would also make it possible to reverse the burden of proof. In the current situation, it is the producer who is the victim of usurpation who must demonstrate that he is the true owner of the GI. In the future, from the moment a GI is registered in the registry, it will be the producer accused of usurpation who will have to demonstrate his innocence.

DOHA ROUND

It has been accepted by all WTO members in the Ministerial Declaration at 4th session at Doha from 9 – 14 November 2001, that the International trade can play a major role in the promotion of economic development and the alleviation of poverty. They all recognize the need for all people to benefit from the increased opportunities and welfare gains that the multilateral trading system generates. The majority of WTO Members are developing countries. Recalling the Preamble to the Marrakesh Agreement, they promised to continue to make positive efforts designed to ensure that developing countries and especially the least-developed among them, secure a share in the growth of world trade commensurate with the needs of their economic development. In this context, enhanced market access balanced rules, and well targeted sustainable financed technical assistance and capacity-building programmes have important roles to play. 

All Ministers at Doha in their Ministerial Declaration also categorically stated vide Section 18 that “With a view to completing the work started in the Council for Trade-Related Aspects of Intellectual Property Rights (Council for TRIPS) on the implementation of Article 23.4, we agree to negotiate the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits by the Fifth Session of the Ministerial Conference. We note that issues related to the extension of the protection of geographical indications provided for in Article 23 to products other than wines and spirits will be addressed in the Council for TRIPS pursuant to paragraph 12 of this Declaration”.

CONCLUSION

The issue of GI Protection was on the Agenda for deliberations at 5th Ministerial Conference held at “Cancun – Mexico” in second week of September 2003 but for its early collapse due to confronting stance taken by G-20 countries (led by India, Brazil, China and South Africa) and the Developed Nations dashed all our hopes in this regard. We are indeed fortunate that we have been given an opportunity to present our case as to how better protection to hundreds of Nationally and Internationally recognized GI Products can be given where millions of people are directly and indirectly earning their livelihood. The world’s apex body WTO must positively respond to our request. My friends from the USA, Italy and China will now explain to you why the current level of protection granted to GIs under the WTO is largely insufficient from their point of view and why there is an urgent need to enhance that protection. We will take questions after the three presentations.

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Vice President (Asia) - ORIGIN

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Executive Director – All India Rice

Exporters’ Association, India

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