The Global Struggle Over Geographic Indications

Abstract

The WTO TRIPs Agreement heralded a landmark and controversial change in international law. It significantly increased the power of international intellectual property law and simultaneously engendered debate over the status and scope of intellectual property rights. Perhaps the most theoretically-contested such right relates to 'geographic indications' (GIs). Akin to a trademark, a GI identifies a good as originating in a particular region, where a given quality of the good is attributable to its place of origin. Because the place is said to be essential to the product, proponents argue that those outside a specified region cannot be permitted to use its place-name on product labels. The question of GI protection is linked to politically sensitive debates over agricultural protection, as well as the degree to which international law ought to trench upon questions of culture and tradition.

This paper examines and critiques the rise of GIs in international law. Although GIs have a long history, we argue they gained markedly greater salience in the postwar period due to major changes in the global economy. Increasing consolidation of formerly discrete markets in turn meant increased competition - and opportunities - for many traditional producers. This enhanced global competition has raised the value of putative GI rights. While economic concerns loom large, the effort to entrench GI protection also draws strength from more diffuse concerns about authenticity, culture, and locality in a rapidly integrating world.

After explaining the origins of the effort to protect GIs we assess the justification for these new rights. We argue that GI protection is justifiable for many of the reasons that trademark rights are justifiable: primarily, to protect consumers against confusion and to lower their search costs. We contend, however, that the current level of protection afforded by TRIPs for wine and spirits - which disallows any mention of a protected GI by a producer outside the region, even if the production locale is clearly indicated - is unwarranted in that it goes well beyond what trademark theory supports. A fortiori, further expansion of the wines and spirits standard to new products, as currently sought by European and other states in the Doha Round, is unjustified as well. We defend this position through careful consideration of the major theoretical bases for property rights.

Keywords: international law, international intellectual property, geographic indications