EU and India in negotiations over a Geographical Indications Agreement

Since June 2022, the European Union (EU) and India have been in trade negotiations, to conclude a Free Trade Agreement (FTA), an Investment Protection Agreement (IPA), and an Agreement on Geographical Indications (GIs). This Kat decided to look closer at the GI talks, while sipping a cup of Darjeeling tea.

Background

GI protection is one of the priority areas in the EU’s external policy. EU trade agreements commonly include extensive provisions on GIs, which allow the EU and its partner country to mutually recognise their respective GIs as listed in the Annexes to the agreement.

In the case of EU/India relationship, no such agreement has been concluded so far, this despite that both the EU and India are leading GI jurisdictions. For the moment, the only available registration route is via a direct application, EU GI owners to the Indian authorities, and Indian GI owners to the EU authorities.

Against this backdrop, EU GI producers have been active in India, registering such products as Champagne, Cognac, Prosciutto di Parma, or Gorgonzola. In turn, only two Indian GIs are registered in the EU: Darjeeling tea and, after 15 years of a pending application, Kangra tea. An application for “Basmati” rice has been pending since 2018, as it is disputed by Pakistan and by Nepal.

Moreover, as the EU system only covers agricultural products, wines and spirits, Indian GIs for handicrafts cannot be registered in the EU. For such products, obtaining an EU collective mark is the only option.

Yet, as the Halloumi saga demonstrated, collective marks are significantly weaker rights, if compared to GIs. While still waiting for the GI registration, producers of Halloumi cheese failed to demonstrate the likelihood of confusion between their collective mark and a figurative sign “Bbqloumi”. At the same time, the likelihood of confusion is not required to establish infringement of a GI.

Signing an EU/India GI agreement would allow GI producers to save costs, as their governments will negotiate the mutual recognition of GIs in bulk on behalf of all GI producers. Annexes to the GI Agreement may also be updated in the future, to include newer GIs.

Earlier trade negotiations

In 2007-2013, the EU and India had already attempted to conclude a trade agreement, the so-called Broad-based Trade and Investment Agreement (BTIA). The chapter on intellectual property (IP) included a specific section on substantive protection and enforcement of GIs. Leaked BTIA text allows to understand the disagreements that were faced by the negotiators.

The EU’s proposal for GIs provisions replicated what was done in other EU trade agreements. Under the BTIA, India and the EU would exchange a list of their respective GIs and mutually recognise them. However, only GIs for agricultural products, wines and spirits would be eligible for mutual recognition under the BTIA.

This was due to internal constraints faced by the EU: in the absence of EU-wide system for GI protection of non-agricultural products, the EU could not negotiate such protection externally with India. For India, where GIs are predominantly for handicrafts (think Kashmir Pashmina or Chanderi sari), this was insufficient.

As per the EU suggestions, the scope of protection for the mutually recognised GIs had to go beyond the minimum international standard, set in the TRIPS Agreement. This, too, mirrored the EU’s internal legislation, in which GIs for all categories of products receive near-absolute protection. For instance, the TRIPS Agreement allows the sales of “Canadian Roquefort”, as consumers would not think that they are buying the authentic, French Roquefort. This is, however, prohibited in the EU law, which goes beyond the minimum TRIPS requirements. During the BTIA negotiations, India preferred to remain at the TRIPS level.

Negotiations were finally stopped in 2013.

EU/India Geographical Indications Agreement

In June 2022, the EU and India opened a new phase of trade negotiations. The EU and India launched negotiations on three separate agreements: an FTA, an IIA and a stand-alone GI Agreement.

It is not the first time that the EU seeks to conclude a specific agreement on GIs with a third country. Previously, such GI agreements were signed even in the absence of talk regarding an FTA. Should an FTA be concluded, the GI agreement would be replaced by the FTA. To memory of this Kat, this is the first time that the EU is negotiating both an FTA and a stand-alone GI agreement in parallel. Unlike in other EU trade agreements, GIs are completely excluded from the scope of the IP Chapter in the EU/India FTA.

The EU is following a transparency policy and so it publishes the texts of its own proposals for trade agreements (including the draft EU/India FTA and IIA). However, no draft has been published for the GI agreement. The EU’s and India’s negotiation positions are therefore unknown.

So far, two rounds of negotiations over the EU/India GI agreement have taken place. The parties have revisited earlier GI issues from the BTIA and finalised the first reading of the draft agreement.

In parallel, India is negotiating a trade agreement with the UK. Here, a text was leaked. As it appears from Art. D.4, India is now seemingly willing to adhere to an EU-like scope of protection for all GIs. The UK/India agreement reproduces word-for-word the scope of protection, as regulated in Art. 13 Regulation (EU) No 1151/2012 (on the side of the UK, these norms are now part of the national legislation, as a post-EU legacy). India would thus seemingly be ready to agree to the TRIPS-plus protection of GIs, which was originally an issue in the negotiations with the EU in 2007-2013.

Another major breakthrough, as compared with the 2007-2013 negotiations, is the EU’s ongoing GI reform. In spring 2022, the European Commission published its Proposal for a Regulation on GI protection for craft and industrial products (also known as non-agri GIs). After the Proposal is adopted and a new EU-wide system is created, Indian GIs for handicrafts would also be eligible for inclusion into the EU/India GI agreement. This mitigates another concern from India in the earlier negotiations, namely that the agreement would only cover a small fraction of Indian GIs.

The issue of non-agri GIs may also explain the unusual move of signing a stand-alone agreement for GIs. Until the EU GI reform is in place, an GI Agreement with India is not likely, since it would run counter to India’s interest of covering its handicraft GIs.

Negotiating two separate agreements (a general FTA and a GI Agreement) will allow the EU/India FTA to go further (as it does now, with two additional rounds of negotiations), without being blocked if GI issues are not resolved.