Geographical indications: a review of proposals at the TRIPS Council

The TRIPs Agreement offers a hierarchy in the protection of geographical indications (GIs), providing 'additional protection' to wines and spirits (Article 23). While this hierarchy is hotly contested, many countries (developing and developed) have demanded expanding the coverage of Article 23 to other products. The paper examines the debate for GI-extension and critically analyses the papers submitted to the TRIPs Council on this subject. In addition, the paper provides a summary of the relevant articles on geographical indications within the TRIPs Agreement and the underlying legal doctrines that provide the rationale for protecting geographical indications.

The paper concludes that the debate at the TRIPS Council has largely failed to engage with substantive evidence and is limited by the absence of adequate empirical evidence. Rather than recapitulate the analysis, it identifies three themes that urgently require scholarly analysis supported by statistical and economic data. These are:

• An economic and statistical analysis of GI-protection to increase understanding of how systems providing protection for ‘indications of geographical origin’ (IGOs) have worked.
• Determination of the economic value of GI-extension. The debate at the TRIPS Council has noted the potential risk of indications being rendered generic on account of the limited protection available under Article 22 however actual evidence would help establish the point. Further, while existing research agrees that distinctive marks are economically valuable, a range of other factors helps to realise the economic potential of such distinctive marks. Country-level studies would help assess the case for/against GI-extension.
• Any study should acknowledge and assess the bargain that might be struck to achieve GI-extension. In addition, the specific burden associated with protecting indications of other member countries requires closer assessment.

This paper was prepared in the context of the Project on TRIPS and Development Capacity Building sponsored by the Department of International Development (DFID UK) and implemented by the United Nations Conference on Trade and Development (UNCTAD) secretariat and the International Centre for Trade and Sustainable Development (ICTSD).