Looking Beyond the Known Story: How the Prehistory of Protection of Geographical Indications in the Americas Provides an Alternate Approach
Geographical Indications at the Crossroads of Trade, Development and Culture: Focus on Asia-Pacific (Irene Calboli and Ng-Loy Wee Loon, eds., 2017)
26 Pages Posted: 11 Oct 2019
Date Written: 2017
The current divide within the international community over the appropriate level of protection for geographical indications (GIs) is epitomized by the conflict between the European Union (EU) and the United States (US) in the context of the Transatlantic Trade and Investment Partnership Agreement (TTIP). While GIs receive extensive protections that go beyond international treaty standards within the EU, the US (along with other "New World" countries) has repeatedly opposed strengthening the existing international GI protections.
The US's resistance to strong protection of GIs has become a popularized account. The history of the US's interest in GI protection, however, is more complex. Since 1929, the US has been bound by a little-known international convention that ensures strong protection of GIs: the General Inter-American Convention for Trade Mark and Commercial Protection (Inter-American Convention). The Inter-American Convention is a regional agreement that was instituted by the US with several countries in the Americas. At the time in which the Convention went into force, the provisions on GIs in the Inter-American Convention were the most developed and strongest protections available in any international agreement. And remarkably, these provisions were developed by the US.
This history of the protection of GIs in the US remains enigmatic. Few scholars and lawyers are aware of the Inter-American Convention, let alone its chapter on GI protection. Why was such a chapter included, and why were similar provisions not included in the 1946 Trademark Act or subsequent international agreements? The treatment of GIs both in this convention and in the US Trademark Act is largely the result of the work of Edward Rogers and Stephen Ladas, two of the leading practitioners of US trademark law in the twentieth century. These two men had as sophisticated an understanding of US common law and international obligations as anyone at that time. The resulting texts of the Inter-American Convention and the Trademark Act - both of which they were instrumental in drafting – were no accident.
As the Inter-American Convention is still in force, it indicates the minimum standards for the protection of GIs in the US, at least with respect to beneficiaries of the Convention. It is also arguably a self-executing treaty in the US. Understanding this agreement therefore offers more than historical insight; it may offer an alternate approach to the protection of GIs. The Inter-American
Convention also offers lessons for developing GI protection standards in other regions, such as Asia. One reason for the Convention's inconspicuousness is that it was primarily intended to be used by US business in Latin America; it was not designed for the equal benefit of all member states. In addition, it was negotiated without the benefit of any experience protecting GIs on the part of the Latin American trading partners. Perhaps, it is not surprising then that the largely theoretical origins of the protections have resulted in the absence of a robust practice of applying them.
While the focus of this book is to consider GIs in Asia, this chapter will examine a particular historical moment in the legal protection of GIs that will expose a different view of the American approach to the protection of GIs. The reason to introduce this history is to offer policy makers in this region alternative approaches to GI protection beyond the current models advanced by the EU and the US. The short story is that the EU favors strengthening the current protections of GIs - it is said to be one of their greatest assets – while the US disfavors the development of additional protection for Gls beyond those offered by trademark law. The Inter-American Convention certainly complicates this story and provides a possible alternate approach.
Keywords: Trademark Law, Geographical Indications, International Trade Law, TRIPS, Lanham Act, Inter-American Convention, Paris Convention, Asia
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