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International Legal Framework for the Protection of Geographical Indications Warsaw, 26 April 2006. Denis Croze Acting Director Advisor Economic Development Sector World Intellectual Property Organization. Agreements/Terminology. Indications of source Paris Convention (1883) - PowerPoint PPT Presentation
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1
International Legal Framework for the Protection
of Geographical Indications
Warsaw, 26 April 2006
•Denis Croze
•Acting Director Advisor
•Economic Development Sector
•World Intellectual Property Organization
2
Agreements/Terminology
• Indications of source– Paris Convention (1883)– Madrid Agreement (1891)
• Appellations of Origin– Paris Convention– Lisbon Agreement (1958)
• Geographical Indications– TRIPS Agreement (1994)
3
Indication of Source
“Indication referring to a country or to a place situated therein as being the country or place of origin of a product”
4
Appellation of Origin
“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” (Lisbon)
5
Geographical Indication
“Indication which identifies 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” (TRIPS)
6
Relationship
A p p e lla tion o f O rig inL isb on
G e og rap h ica l Ind ica tionT R IP S
In d ica tio n o f S ou rce P aris , M a d rid
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Relationship
Ind ications of Source G eographica l Ind icationTR IPS
Appella tion o f O rig inL isbon
G eographica l Ind ication[Ind ication of G eographica l O rig in ]
9
Multilateral Agreements
• Paris Convention for the Protection of Industrial Property (1883)
• Madrid Agrement for the Repression of False or Deceptive Indications of Source on Goods (1891)
• Lisbon Agreement for the protection of appellations of origin and their international registration (1958)
• TRIPS Agreement (1994)
10
Paris Convention for the Protection of Industrial Property (1883)
• 169 Member States
• Indications of source or appellations of origin are objects of IP protection (Art. 1.2)
• In case of “direct or indirect use of a false indication of the source of goods” (Art 9)
• Goods bearing false indication shall be subject to seizure upon importation [..] or within the country; prohibition of importation (Art. 10)
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Madrid Agreement for the Repression of False or Deceptive Indications of Source
on Goods (1891)
• 34 Member States - 6 articles
• Repression of false or deceptive indications of source, on or in connection with goods
• Seizure, prohibition of importation + others special sanctions
• National Courts decide what appelations are generic (except products of the wine)
Lisbon Agreement for the Protection of Appellations of Origin and Their
International Registration
• For appellations protected as such• Definition of “appellation of origin”• Definition of “country of origin”• Registration and possible objection• 24 Member States • 835 registrations (766 valid)
13
TRIPS Agreement 1994
• 149 Members
• TRIPS Articles 22 to 24 (Section 3)
• Definition of subject matter
• Scope of Protection
• International Negotiations; Exceptions
• Built-in Agenda
14
Article 22 TRIPS
• Definition of a GI: « Indication 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 »
• Minimum level of protection for all products (except wines and spirits)
• Misleading test, unfair competition• Homonymous GIs
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Article 23 TRIPS
• Higher protection for wines and spirits• No use of de-localizers (kind, type, ..etc)• Obligation to refuse or to invalidate a mark
consisting of GIs• Homonymous GIs: « coexistence » under
certain conditions: differentiation; interest of producers and consumers
• Negotiations/multilateral system of notification and registration of GIs for wines
16
Article 24 TRIPS
• Grand-fathering clause: use before date of signature of WTO Agreement (15.04.94) for 10 years or use in good faith before that date
• Coexistence with prior trademarks (registration or use) before the date of application of the TRIPS Agreement (transition periods) or before the GIs is protected in country of origin
• Generics, grape variety• Protection in the country of origin
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TRIPS
• Negociations concerning the establishment of a multilateral system of notification and registration of GIs for wines [and spirits] eligible for protection in those Members participating in the system
• Commitment to enter into negociations to increase protection of individual GIs under Article 23
18
Existing Systems of Protection
• Protection against unfair competition (Passing off)
• Protected appellations of origin
• Collective or certification marks
• Administrative systems of protection
19
Protection under unfair competition
• Article 10bis of the Paris Convention
• Unauthorized used of GIs should:– be shown by plaintiff – be misleading– result in damages or likelihood of damages
• + Specific statutory provisions
20
Protected Appellations of Origin
• Definition• Legal protection
– based on an act of public law (Law, Decree..)
– at the conclusion of an administrative procedure
• Recognition• Protection against unauthorized use
– Criminal and civil responsability
21
Collective or Certification Marks
• Marks which indicate that the goods and services on which they are used have specific qualities which may also include geographical origin
• Owner of the mark (not user) to ensure the certified quality
• Enforcement under general trademark law
22
Problems in Obtaining Effective Protection in Other Countries
• Unfair competition versus statutory protection
point of view of users (not compliance with international agreements)
• Generic character
• Conflicts between TMs and GIs
23
Administratives Schemes for Protection
• To ensure fair trade and consumer protection
• Administrative approval procedure to market some goods
• Compliance of the product for which marketing authorization is sough with relevant legal requirements
24
Standing Committee on the Law of Trademarks, Industrial Designs and
Geographical Indications (SCT)
• Background Documents
– Possible solutions for conflicts between TMs and Gis and between homonymous GIs (SCT/5/3 - June 2000)
– Historical background, nature of rights, existing systems of protection, obtaining protection abroad .. (SCT/8/4 - April 2002)
– Definition of GIs (SCT/9/4 - Oct.2002) and SCT/10/4 - March 2003)
25
Geographical Indications and the Internet
• Joint Recommendation on the Protection of Industrial Property Rights in Signs
• Second WIPO Domain Name Process