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Geographical Indicators . U.S. v. EU (2004)

Geographical Indicators . U.S. v. EU (2004). Jimmy Ficaro Lori Gavaghan Chris Hartman Mike Kalutkiewicz. What are geographical indicators?. Form of Intellectual Property Negotiated under the 1994 TRIPS Agreement Protected in similar ways as copyrights, trademarks, and patents

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Geographical Indicators . U.S. v. EU (2004)

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  1. Geographical Indicators.U.S. v. EU (2004) Jimmy Ficaro Lori Gavaghan Chris Hartman Mike Kalutkiewicz

  2. What are geographical indicators? Form of Intellectual Property • Negotiated under the 1994 TRIPS Agreement • Protected in similar ways as copyrights, trademarks, and patents Definition • “indications, which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to their geographic origin”

  3. Examples of Geographic Indicators • Some of the more well known products, named for their region: • Feta • Parmesan • Champagne • Bologna • Parma • Bordeaux • Cognac

  4. Why is this a trade issue? • Protecting a product’s name is like protecting a brand • Consumers need to know that the product is authentic • Designates a particular quality • Yet some Indicators have become generic terms

  5. The Current Conflict • The European Union created a registry of names to protect • Over 600 products protected • Covers wine, spirits, and food • The United States, joined by Australia objected

  6. EU Argument • EU Proposal (document IP/C/W/107/Rev.1) (proposal within the European Community, to be brought before the WTO • The EU approached the World Trade Organization requesting the immediate termination of U.S. usage of commonly known food terms protected under Article 22, such as, “FETA,” “PARMESAN,” “BURGUNDY,” “CHABLIS,” “CHAMPAGNE” and “BOLOGNA” in order to protect domestic agriculture throughout the Union, included in the EU argument is approximately 600 food names for WTO protection in addition to protection of wines and spirits listed in Article 23

  7. The EU Argument • Example: A study by the Italian Institute of Consumer Goods Companies (INDICOD) found that every ten dollars spent on Italian-style food in the United States, less than one dollar was spent on foodstuffs actually originating in Italy. In the US retail market, turnover of "Italian sounding" food products is big business, at $17.7 billion a year, but of this, just $1.5 billion, or 8.6 per cent, actually came from Italy, according to the INDICOD report.

  8. The EU Argument • EU Promulgated Regulations • 2081/92 Regarding Wines and Spirits • 2082/92 Protection of GIs and Designation of Ag and Foodstuffs • 2081/92 Certificates of Specific Character for Ag and Foodstuffs • Regulation No. 2081/92, which entered into force on 25 July 1993, states, in its fifth recital, "the labeling of agricultural products and foodstuffs is subject to the general rules laid down in Council Directive 79/112 of 18 December 1978 on the approximation of the laws of the Member States relating to the labeling, presentation and advertising of foodstuffs... in view of their specific nature, additional special provisions should be adopted for agricultural products and foodstuffs from a specified geographical area".The Regulation notes in its seventh recital that, "there is diversity in the national practices for implementing registered designations of origin and geographical indications; ... a Community approach should be envisaged; ... a framework of Community rules on protection will permit the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework will ensure fair competition between the producers of products bearing such indications and enhance the credibility of the products in the consumers' eyes".

  9. The EU Argument • Article 22Protection of Geographical Indications • 1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. • 2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent: •     (a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; •     (b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967). • 3. A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin. • 4. The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.

  10. The EU Argument • Article 23Additional Protection for Geographical Indicationsfor Wines and Spirits • 1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. (4) • 2. The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member's legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin. • 3. In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled. • 4. In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning 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.

  11. The EU Argument • Elimination of TRIPS Article 22 exemptions. • EU stance against exemptions depicted in Article 22. • Generic names for agricultural products and food stuffs should be protected if it originated in the geographical region protected by the indicator in addition to already wines and spirits protected in Article 23. • Reasoning • Protection of domestic agricultural industry by creating GIs for agricultural products and food stuffs in addition to wines and spirits. • Economic support of rural “less favored or remote” economies • Commercial benefits to farmers and producers unable to qualify for trade protection. • GIs increase product prices- increase income for farmers and producers

  12. The EU Argument • Reasoning • Global Protection • Competition • Rewards for Investment • Fairness • Piracy • The Commission, the EU's executive arm, insists this agreement is important not only for products from its member states. "Together with our allies, the EU will do its utmost to achieve better protection for regional quality products, from Europe's Roquefort cheese to India's Darjeeling tea, from Guatemala's Antigua coffee to Morocco's Argan oil in the WTO talks."

  13. US/Australian Argument • US and Australia brought case to WTO in 2003 and ruling finally handed down in December, 2004 • Article III:4 of GATT 1994 • Article 1.1, 2.1, 3.1, 4, 16.1, 22.2, 24.3, 24.5, 41.1, 41.2, 41.4, 42, 44.1 and 65.1 of the TRIPS Agreement • National Treatment Principal • US/Australian argument is a complex one • On one hand, says TRIPS are important • On the other, claims that EU protectorates are “different” or “exempt”

  14. American/Australian Issues • Zoellick agrees GIs are important • "Like copyrights, patents, and trademarks, geographic indications play an important role in protecting distinctive and specialized products and ensure that consumers have consistent quality." • Florida oranges, Idaho potatoes, Washington state apples, West Australian saltbush lamb or Port Lincoln tuna • EU's internal GI system does not give the same protection to non-EU products that it provides to European products • Non-EU nation can only receive full GI protection for its exports to the European market by fully guaranteeing GI protection in its domestic market for the 600 EU products • Also, administratively too burdensome and costly for a foreign company to register a GI • Therefore an NTP violation and contrary to TRIPS • New type of export aid that protects and subsidizes EU countries by driving up prices elsewhere

  15. US/Australian Argument • TRIPS Agreement requires that WTO Members provide the legal means for interested parties to prevent the use of a GI that: • (1) indicates or suggests that a good originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; or • (2) constitutes an act of unfair competition. • TRIPS Agreement provides some exceptions to these requirements: • If that GI is the "generic" name • Where a trademark already exists - where a trademark has been applied for or registered in good faith, or where the rights to the trademark have been acquired through actual use in good faith, either (1) before the date of application of the TRIPS Agreement for a particular WTO member, or (2) before the GI was protected in its country of origin, the trademark maintains its legal presumption of superiority • "first-in-time, first-in-right” • Herein lies the complainants’ 2nd main argument against the EU

  16. Other Perceived Issues • The Slippery Slope • Linguistic variations • EU hijacking negotiations • Linkage between GIs and agricultural reform imperils the ability of WTO negotiators to make progress in eliminating export subsidies, improving market access and reducing trade-distorting domestic programs

  17. The Decision of the WTO • "It's a clear win for American farmers and food processors. For years, Europe effectively had a 'Do Not Apply' sign directed at foreign producers." ~Acting U.S. Trade Representative Peter Allgeier • "I am very pleased with this outcome and look forward to working together with all WTO members for the strengthening of the protection of quality agricultural production," ~EU Agriculture Commissioner, Mariann Fischer

  18. WTO Panel Technical Findings • From Section B of the findings (US Victory): • the United States has made a prima facie case that the equivalence and reciprocity conditions in Article 12(1) of the [EU] Regulation apply to the availability of protection for GIs that refer to geographical areas located in third countries outside the European Communities, including WTO Members, and the European Communities has not succeeded in rebutting that case; • Article 12(1) provides as follows: -Without prejudice to international agreements, this Regulation may apply to an agricultural product or foodstuff from a third country provided that the third country concerned is prepared to provide protection equivalent to that available in the Community to corresponding agricultural products or foodstuffs coming from the Community."

  19. WTO Panel Technical Findings (cont’d) From Section D of the findings (EU Victory): • the United States has not made a prima facie case that the European Communities has failed to implement its obligation under Article 22.2 of the TRIPS Agreement.” Article 22.2 of the TRIPS Agreement provides as follows: In respect of geographical indications, Members shall provide the legal means for interested parties to prevent: • (a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; (b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).“

  20. WTO Panel Technical Findings (cont’d) EU Victory continued… • the Panel also rejects the United States' claim that the Regulation is inconsistent with Article 1.1 of the TRIPS Agreement. Article 1.1 of the TRIPS Agreement provides as follows: Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice."

  21. “Alcohol, the cause and solution to all life’s problems.” Homer Simpson • For past hundred years, an international legal dispute continued between the American brewer Anheuser-Busch and the Czech beer producer Budejovicky Budvar over the right to use the trademark name Budweiser on their products. • The disputed "Budeweiser" name is an adjective originating from the German name of the Czech town Ceske Budejovice – Budweis- where the beer was born in the Middle Ages and thus describing the origin of the brew. • WTO GI ruling upholds the American distributor's right to the Budweiser name.

  22. Domestic Geographic Disputes • California wineries are engaged in a battle with the Bronco Wine Company, maker of surprisingly good and very affordable “Two Buck Chuck” brand wine. The brand offers a quality wine produced from grapes grown just outside the Napa Valley, but with labels from wineries distributing from within the Napa Valley. • Petitions have currently been filed from both parties – Bronco Wine Co. and a coalition of Napa Valley winemakers.

  23. Conclusion Both sides declared “victory” The EU’s practice of prohibiting the use of GI indicators such as Feta and Bordeaux has been upheld by the WTO under the TRIPS agreement. The US’s claim that the EU was closing off their registry to US GIs, such as Florida Oranges, was also upheld under the TRIPS agreement.

  24. Sources • http://www.findarticles.com/p/articles/mi_qa3846/is_200308/ai_n9269240 • http://www.fb.org/views/focus/fo2003/fo0818.html • http://www.idfa.org/news/stories/2005/01/wto-dispute.cfm • http://www.internationaltraderelations.com/WTO.Geographical%20Indicators%20Case.Conclusions%20(March%202005).htm • http://www.global-trade-law.com/Article.Geographic%20Indicators%20Case%20(Interim)%20(WP%2011.19.04).htm • http://news.ninemsn.com.au/article.aspx?id=46156 • http://usinfo.state.gov/ei/Archive/2004/Jan/06-428636.html • http://www.uspto.gov/web/offices/dcom/olia/globalip/geographicalindication.htm • http://www.american.edu/TED/budweis.htm

  25. Sources Continued… • http://www.customs.gov/xp/cgov/import/commercial_enforcement/ipr/seizure/top_trading_partners.xml • http://www.someplacesomewhere.com/topic.asp?TOPIC_ID=18805 • http://www.someplacesomewhere.com/topic.asp?TOPIC_ID=18805 • http://www.ipr-helpdesk.org/documentos/docsPublicacion/html_xml/8_GeographicalIndications[0000003653_00].html

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