DIALOGUE ON GEOGRAPHICAL INDICATIONS RAISES MORE QUESTIONS THAN IT ANSWERS

Last Friday, the IPKat attended the Queen Mary Intellectual Property Research Institute and Fordham School of Law Dialogue on Geographical Indications. Too much was said during the round table to bring you a blow-by-blow account, so instead the IPKat will detail some of the most interesting points that were raised:

♦ There was a major tension between the US and EU attitudes to GIs. The Americans saw them as anti-competitive and as an example of EU protectionism. It was suggested that GIs granted monopolies in generic terms to certain traders and therefore resulted in horizontal market division between those traders who are fortunate enough to be entitled to use GIs. The Europeans present tended to take a less hard-line approach, recognising that, by providing consumers with information about the products in question, GIs can have pro-competitive effects. One proposed solution from the American delegation was that every GI holder should also have to coin a generic description of his/her product so that competitors will be able to adequately describe their products if they are similar to those covered by the GI. The IPKat was not particularly persuaded by the American position. GIs aren’t as much of a threat to competition as was asserted. GIs do not stop competitors from producing similar or even identical products as long as they do not market them under the GI. Certainly they’ll have to find another way of describing the nature of their products but this should be possible although it may require some effort. Additionally, few GIs are truly generic. Most are used in conjunction with a separate generic term e.g. the “ham” element of “Parma ham”.

♦ It was suggested that geographical indications are part of the anti-globalisation trend because of their focus on unique regional specialities. The IPKat isn’t too sure about this: proponents seek protection for the same GIs all over the world. As a result, there are certain GIs that are recognised as luxury products the world over.

♦ It was asked why spirits were included in the Doha Declaration whereas TRIPs had just covered wine.

♦ The economics of GIs were discussed. Although it was recognised that overly-restrictive GI protection can limit the availability of product information and thus have a negative economic effect, the fact that it can incentivise GI holders to invest in their goods was also noted, as was the ability of GIs to protect the livelihood and cultural heritage of local producers. Other associated costs, such as the expense of running a register of GIs, were also highlighted.

From the IPKat’s point of view, the main issue is this: There are other, lengthier ways for competitors to describe the characteristics of their goods. Whether we think it is reasonable to expect competitors to use those methods, rather than the more convenient GIs depends on: (i) the cost we are prepared to impose on competitors who enter the market – searching for suitable descriptive terms rather than using the GI as a shortcut imposes a burden on competitors and (ii) the cost we’re prepared to impose on consumers in the search for products with certain characteristics – it will be easier for consumers if they can search for goods similar to those that bear a GI if the similar goods can use the GI in some way e.g. “Tastes just like Parma Ham” or “Gorgonzola-style cheese, made in England”

The US position on GIs here
The EU on GIs here and here
WIPO on GIs here
WTO on GIs here
Famous GIs here, here and here.