Geographical Indications
Questions and Answers
- What are geographical indications (GIs)?
The TRIPS Agreement defines geographical indications (GIs) as terms used
to "identify goods as originating in a particular geographical region,
where a certain quality, reputation or characteristic is attributable
to its geographical origin" (e.g: climate, soil, proximity to the ocean).
In other words, there must be a link between what the good is like and
where it is produced. This link informs consumers of a certain quality
or characteristic of the good, which may then be factored into the purchasing
decision. Geographical indications for food products are commonly used
in Europe. Examples of GIs protected in Europe are: Roquefort cheese and
Bordeaux wine. Canada, the United States and many other countries protect
GIs as trademarks and certification marks.
- How are geographical indications protected in Canada?
Canada protects geographical indications by several means. For goods
and services in general, an effective means of protection is provided
though certification marks, under Canada's Trade-Marks Act. Protection
of geographical indications is also afforded through the common law tort
of passing off, and in Québec under the Civil Code of Québec.
Additional protection for geographical indications for wines and spirits
is provided under the Trade-Marks Act in compliance with the requirements
of Article 23 of the TRIPS Agreement.
Canada uses its regime for certification marks under its federal Trade-Marks
Act to fulfill the obligations of Article 22 of the TRIPS Agreement. A
certification mark is a type of trademark used for the purpose of distinguishing
goods and services that are of a defined standard from those that are
not. The defined standards may relate to, inter alia, the quality of goods
or services, and/or the area within which the goods have been produced
or services performed, i.e. the geographical origin of the goods or services.
This standards is set by the owner of the mark. Protection for GIs though
the use of certification marks is provided in Canada without restriction
as to the type of product or service.
- Why is Canada involved in WTO negotiations for a multilateral system
of notification and registration of geographical indications for wines
and spirits?
The TRIPS Agreement is part of a series of commitments that were made
in the Uruguay Round of WTO Negotiations in 1994 by all members. Section
3 of that Agreement deals with the protection of geographical indications.
Article 23, which confers "Additional Protection for Geographical Indications
for Wines and Spirits," commonly referred to as "enhanced" protection,
also includes provisions for the launch of negotiations for the establishment
of "a multilateral system of notification and registration of geographical
indications for wines eligible for protection in those Members participating
in the system."
As a participating member of this registry system Canada has been involved
in these negotiations. However, progress has been very slow due to differences
in views among WTO members on issues such as legal obligations and financial
and administrative burdens.
- What is "enhanced" protection?
"Enhanced" protection for wines and spirits (Article 23) differs from
"regular" protection for other goods (Article 22) in the sense that "regular"
protection aims at protecting consumers and producers by preventing the
use of GIs that mislead the public or constitute unfair competition. On
the other hand, "enhanced" protection means that even where there is no
consumer deception or unfair competition, the indication may not be used
in association with wines or spirits if it does not originate in the place
indicated by the GI. For instance, a producer may not use the term "Bordeaux-style
wine" to identify a wine if it does not originate in the Bordeaux region,
even if the true place of origin is clearly stated and the public is not
misled.
- What is Canada's position regarding the multilateral registry system
for wines and spirits?
Canada and a number of countries have proposed a low-cost, voluntary
and simple system of notification and registration with no binding obligations
for non-participants. The system would have the form of a searchable database
which all WTO members could consult before granting GI protection in their
respective territories. The proposed registry system could facilitate
GI protection for wines and spirits without creating undue additional
costs, administrative burden or new obligations.
The
"Joint Proposal" - TN/IP/W/5
- What alternative proposals are there on the negotiating table?
Other options for a multilateral registry system for wines and spirits
have been tabled by the EU, Hungary and Hong Kong. In particular, the
EU has proposed a mandatory system which would bind all WTO members. This
system would require each government to systematically examine every GI
notification submitted by a WTO member. This would create new legal obligations
and impose significant financial and administrative burdens on all Members
whether or not they are wine and/or spirit producers and whether or not
they are participating in the system.
European
Communities proposal - IP/C/W/107/Rev.1
Hungary
proposal - IP/C/W/234
Hong
Kong proposal - TN/IP/W/8
- What is GI extension?
Extension of GIs refers to extending the current enhanced level of protection
for wines and spirits to all other goods, including agri-food products.
- What is Canada's position regarding GI extension?
Canada's position is that the GI protection provided for all goods by
the current TRIPS Agreement is effective and adequate. This position is
shared by several other WTO members such as Argentina, Australia, Chile,
and the United States
- What could be the impact of extending enhanced GI protection to products
other than wines and spirits?
The impact of the extension is difficult to assess at this stage. Factors
such as the multilateral registry system, the notification process, their
legal implications and financial and administrative burdens would need
to be carefully assessed.
Extending GI protection could end-up restricting the use of generic terms
like Parmesan or Feta, which would be costly for affected companies. Re-labelling
could create confusion among consumers because they may not know that
the generic name of a particular product has changed or may not realize
that, despite the change, the product and quality remain the same.
Another concern with the proposed extension of enhanced protection lies
with its potential impact on intellectual property rights whereby geographical
indications will override existing trademarks. |
