The Trips Agreement and Geographical Indication, Research Paper Example

The TRIPS Agreement, was enacted on January 1^st, 1995, and it is currently considered to be the most all-encompassing multilateral agreement on intellectual property. The TRIPS Agreement  covers intellectual property issues, specifically as it relates to copyright, patents, trademarks, appellations of origin, industrial designs patents, geographical indications, and undisclosed information like test data or secrets of trade.  Some of the general provisions of TRIPS entails   Article 1.3, which defines members who are subject to the regulations within the TRIPS agreement.  Articles 3, 4 and 5 of the TRIPS agreement cover the key regulations governing the treatment of foreign nationals by the favoured and most favoured member countries as they relate to all aspects of intellectual property issues. The World Trade Organization notes that Article 22.1 of the TRIPS Agreement defines geographical indications as factors that “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”  The main premise of this definition is that geographical indication is not just reliant on branding or patent, but also applies to characteristic factors inherent in a product that can only be attributed to a specific geographical location. If the quality, reputation or other aspects of the product’s existence are fundamentally tied to its geographical place of origin then that product may claim protection under geographical indications. There are fundamental differences in a wide range of products which claim protection under the TRIPS Agreement. The reason these differences exist is due to the fact that the TRIPS Agreement sets minimum standards allowing member countries to expand on these standards as they see fit. One of the key reason why brands need protection internationally has to do with the marketability of products. This can specifically be seen with developing countries which largely rely on the marketing, manufacturing and exportation of their products. In regards to pharmaceutical products, brand infringement can lead to health issues, or even death. International products under the guides of the TRIPS agreement are perceived as more or less different due to geographical indication. The reason geographical indication plays such a significant role in the rationale behind why brands are claimed as being more or less different is due to the fact that geographical indications are directly tied to the reputation, quality and other characteristics of particular regions or member countries from which the products originate.

Thesis statement

The following will assess existing treaties on intellectual property rights to establish an understanding of their effectiveness in handling matters of geographical indication; the findings will provide a further assessment as to whether or not the current European proposal to strengthen mechanisms of enforcement for “denominations of origin” is necessary.

Introduction

In Taubman, Wager, and Jayashree’s handbook, the authors describe the historical legal background of the World Trade Organization’s TRIPS Agreement, the authors assess the true nature of the agreement as it relates to international intellectual property rights and globalization over the years. When, in 1994, near the end of the Uruguay Round of trade negotiations, the government settled on a range of agreements that ultimately established and defined the guidelines associated with the WTO. The Agreement on Trade-Related Aspects of Intellectual Property Rights, otherwise known as TRIPS Agreement, was established as a treaty to stand on its own without entering into “legal force on its own,” but is one of the multilateral trade agreements (MTAs) to comes out of the far reaching Marrakesh Agreement Established by the World Trade Organization” (Taubman, Wager, and Jayashree, xx). The authors further point out that in 1995, the TRIPS Agreement entered into force, in part as set of trade agreements that collectively bind countries that make the decision to join the WTO. The WTO Agreement applied guidelines and regulations to dispute processes related to international intellectual property rights, specifically in regards to trade. On the issue of why TRIPS was needed in the first place:

Almost A Decade Ago, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) was the pennant of the Uruguay Round trade agreements,2 and regarded by most commentators as the most significant development in international intellectual property, certainly of the twentieth century.3 Much like its notable predecessors, 4 the TRIPS Agreement was anineluctable consequence of increased global economic interdependence. (Okediji, 22).

The three main features of the Agreement entail standards, enforcements, and disputes. Standards entail the minimum requirements each member must provide in regards to protection, such as the proposed subject-matter that needs to be protected, the duration of the protection, and the rights awarded to and permissible exceptions to those rights, and the minimum duration of protection. The Agreement establishes standards through mandating that the requirements set by the conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) as well as the requirements set in the convention in Berne, which over-sought issues regarding the Protection of Literary and Artistic Works. With the exception of the provisions of the Berne Convention on moral rights, All provisions associated with the WIPO convention are incorporated as integral parts of the TRIPS Agreement making them mandatory requirements to be followed by all TRIPS Member countries; such provisions can be found in Articles 2.1 and 9.1 of the TRIPS Agreement, as these are the main terms adapted from the Berne and Paris conventions. In addition to these provisions, the TRIPS Agreement also stipulates a significant number of requirements based on pre-existing conventions. This is why the TRIPS Agreement is often referred to as “the Berne and Paris-plus agreement” (The World Trade Organization, 1).

The second key aspect of the TRIPS is Enforcement. These provisions entail factors dealing with solutions regarding the enforcement of intellectual property legislation as well as those associated with domestic procedures. The TRIPS agreement sets out the principles related to all aspects of intellectual property rights enforcement guidelines and relevant procedures, as well as guidelines related to administrative and civil procedures and the necessary steps to lead to their resolution. The enforcement section of TRIPS also entails procedures and requirements associated with the criminal prosecution process and border regulations. These guidelines enable intellectual, copyright, and trademark right holders to and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.

The final and third aspect of TRIPS relates to the dispute settlement process and all guidelines related to it. The TRIPS agreement ensures all conflicts between WTO Members must be evaluated based on TRIPS WTO dispute guidelines. In addition to this there are specific principles which allow for, “national and most-favoured-nation treatment, and some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement” (The World Trade Organization, 1). While these requirements apply equally to all member countries, developing countries are allotted more time to incorporate them into national policy. TRIPS also provides developing countries transitional support that have no patent protection in place for pharmaceutical products as the unregulated distribution of such products could have a hazardous impact on global health as a whole. It should also be noted that the TRIPS Agreement just sets minimum standards and countries are encouraged to establish even stricter legislation to oversee international patent right and copyright issues.

Literature Review

Primary to the topic of international intellectual property rights is its importance. In Keith Eugene Maskus’s text “Intellectual property rights in the global economy,” he notes that, policy makers and economists are recognizing more and more that managing the powerful shifts that arise in technological change and market globalization entails a need to setup legal institutions that can support change while limiting it from getting out of control. He further states that:

“central to this challenge is international reform of intellectual property rights (IPRs)—patents, copyrights, trademarks, and trade secretes—which provide the foundation for building and extending markets for new technologies. Indeed, the construction of such institutional architecture is arguably becoming more important than liberalization of traditional barriers to market access, including tariffs and quotas” (Maskus, ix)

Integral within Maskus’s assessment of the current climate in regards to intellectual property rights across borders is the idea of quality and how the quality of certain products in itself can and should be trademarked. This places products within the conversation of geographical indication, as there are many products where the quality is largely reliant on, or associated with, their place of origin.  It also brings into question whether or not geographical indication is even necessary within the TRIPS Agreement, if trademark regulation can simply cover it. Maskus does an assessment of the significance of trademark legislation within the TRIPS Agreement. He notes that three of the key advantage of trademark legislation is that there is little room for monopolies as there are an endless supply of trademarks, and that legal structures in regards to trademarks tend to be supplemental to trademarks being driven by quality as opposed to capital. Finally, the true measure of quality is the consumer (Suh, Jeongwook, and MacPherson, 581). When certain trademarks fall out of favour with the consumer, it becomes necessary to improve the quality of the product or risk losing market share. Maskus also notes that “unauthorized duplication of a mark or use of a confusingly similar name or mark constitutes trademark infringement” (Maskus, 49). This is very similar to geographical indication as regulations within the TRIPS Agreement protect against the false representation of a product’s place of origin. Maskus goes on to talk about the importance of protecting trade secrets, another valued asset that falls within the realm of geographical indication.

In Lesser’s study on the impact of TRIPS on the economic activity of developing countries, he notes that December 31, 1999, marked the deadline:

“for all but the least-developed countries to comply with the Trade-Related Aspects of Intellectual Property Rights (TRIPs) requirements of the WTO2 for extending and harmonizing Intellectual Property Rights (IPR). Many countries have complied in full while others are in process in some regards, but virtually all developing countries are asking, what are the economic implications of compliance?” (Lesser, 24).

Improved insights into the potential benefits of intellectual property rights can assist national governments to draft more effective economic policy. This will enable them to provide a counter objectives to voices concerns like those heard in Seattle in 1999, which are roundly condemning much of the globalization taking place under the WTO process. In the developing countries, strengthened IPR are a particular target of that rhetoric. Lesser notes how international intellectual property rights have changed in previous years pointing out that since the 1970’s, a substantial number of foreign countries are now technologically advanced when it comes to business operations in certain sectors. Despite this, Lesser further points out that there are still many developing countries that still need to take advantage of products produced by the developed western world, resulting in developed countries emphasizing the importance of stronger IPR regulations. In addition to the fact that innovation is an important aspect of international trade, there is the risk that too much regulation could impeded innovative process. The TRIPS Agreement allows for governments to treat the fine line between enforcing intellectual property law while enabling innovators to create and advance markets.

Lesser points out the fact that strong Intellectual property rights tends to lead to increased international foreign investment in developing nations. He attributes this concept to the fact that strengthening intellectual property rights (IPR) can leads enhanced internationalization due to the fact that more multinational corporations are willing to do business with regions they know protect their patents. He states that “clearly the protection aspect is significant, for IPR tend to be more important for more valuable and readily copied inventions” (Lesser, 21). Yet a major aspect of the score used here and in prior studies is based on the transparency of legal systems – the options to protect one’s properties in whatever forms. Hence, improvements in IPR can provide for analysis to supplement other legal and governmental initiatives. This is especially true in regards to how countries engage in bilateral agreements and programs where countries are forced to interact with one-another. At the same time, investors might look to the operation of property rights systems as an indicator of the general system for protecting property rights. Others have suggested this role for IPRs for a long time; in Pen words, “it may be that cooperation in the [patent] system on the part of less developed countries will help them to obtain the cooperation of [multinational] firms” (Lesser, 21). Lesser’s results reveal that international investors, seeking to invest in developing and emerging markets, are deeply concerned with how countries handle their intellectual property rights. In this respect, elements like geographical indication serve as another layer of protection, further increasing the value and appeal the results in general combined with the survey results do support the view that investors are very aware of IPR systems in individual countries and act carefully within that context. Countries wishing to attract that group are advised to strengthen the IPR systems accordingly (Lesser, 21).

Geographical Indication & International Treaties

Geographical indication represents a distinct classification of intellectual property that has evolved since the culmination of certain treaties being drafted. One very distinct and unique aspect of geographical indication is noted by Hughes in his text “Surrendering Words to the EU,” where he talks about how the final decision on how geographical indication will be handled is still up in the air. Hughes points out that the main difference between copyrights and patents and how they are handled within the TRIPS Agreement verses how TRIPS deals with geographical indication is that language of the law is much more forward thinking in respect to geographical indication. Hughes attributes the forward looking nature of policy language associated with geographical indication to the fact that the WTO acknowledges there will most likely be need to account for ever evolving international norms. When he points out how adaptable and easily modifiable the policy is within the TRIPS agreement. He notes that, “The European Union has used this opening to propose a system in which any one WTO member can announce a new geographical indication and every other country must protect the new GI” (Hughes, 2). This proposed amendment to geographical indication functions as a policy within the TRIPS Agreement is just one of many adaptions to the concept that have been proposed or drafted from treaties throughout the year.

The main treaties relevant to Geographical indication are the 1883 Paris Convention on Intellectual Property, the 1891 Madrid Agreement on indications of source, the 1958 Lisbon Agreement, the 1891 Madrid Agreement Concerning the International Registration of Marks, and of course the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Paris Convention was the very first multilateral agreement to place an emphasis on source indication and origin appellation (O’Connor, 2). It’s noted that while the Paris Convention does identify geographical indication as an intellectual property right within itself, separate from other concerns. Article 1(2) of the Paris Convention specifically states that, “the protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellation of origin, and the repression of unfair competition” (O’Connor, 2). Despite the fact that the Paris Convention places a distinctive emphasis on the importance of geographical indication, the treaty provides no detailed definition of the concept, or real ramifications for infringing on the policy. The 1891 Madrid Agreement is the first multilateral Agreement to apply specific regulations to implement in enforcement of violations for those who falsely deceive their indication of source. The 1958 Lisbon Agreement extended protections and provided a detailed definition of appellation of origin, referring to it as, “the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographic environment, including natural and human factors” (O’Connor, p.4). This is the first time a comprehensive detailed definition of location indication legislation was applied to the policies of a treaty. Finally, the WTO Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), further expanded the definition of appellation of origin, redefining it as geographical indication stating that “… 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” (O’Connor, 6). This definition expands on those stipulations put in place within the Lisbon Agreement, extending it to include the term “indication”. The problem with geographical indication and the debate that stems from whether or not it’s necessary is that, as Hughes points out, “control of production standards is not needed to foster traditional production” (Hughes, 21). Hughes further points out that on the industrial scale level, production of many of Europe’s most coveted wines and cheeses reveals that geographical indication is incapable of guarding and securing the sanctity of traditional agriculture. This is largely why many critics of the policy promote the need for European policy that emphasizes denomination of origin.

When a policy focuses on geographical place of origin, it focuses specifically on the location, and disregards the indication of that location which also includes culture and distinct characteristics associated with that region. This distinction still applies the minimal protection under the TRIPS Agreement while it is still possible and in some cases necessary for member countries within the agreement to setup bilateral arrangements that provide further protection under geographical indication. These bilateral agreements are usually established additionally between the European Community and a particular country and they are referred to as bilateral agreements concluded by the EC for the protection of geographical indication and they focus on denominations.

European Proposal-Denominations

In many ways, denomination of origin represents the EU’s addendum to geographical indication, as it works as a final step in bilateral agreements to strengthen pre-existing language drafted in the TRIPS Agreement in respect to geographical indication. In Juan Gonzalez Blasco’s report on the 40^th European Congress (European Monetary Union and Regional Policy), he addresses the fundamental views and objectives behind the European Commission’s push to legally emphasize denominations of origin. He points out that the core objective the European policy seeks to accomplish to increase diversification of agriculture and food production, in addition to promoting the significance of other types of products based on their place of origin. It should be noted that the denomination of origin is a European policy that applies as a supplemental additive to geographic indication and related policies within the TRIPS Agreement. The first aspect of the policy relates to the denomination of a product that links it to a particular origin based on a specific stage of production. This ties into what the TRIPS agreement refers to as geographical indication. The second aspect of the denomination of origin EU policy is that (Blasco, 2).

The author notes that according to the specific ruling, first published on July 14^th, 1992, “denomination of origin is understood as being the name of a region, a specific place or, exceptionally, a country which is used to designate an agricultural product or foodstuff” (Blasckp, 2). Similar to the definition of geographical indication, denomination of origin seeks to add credibility and legal support to products, brands or key exports of regions that might otherwise go unprotected or be loosely protected under the TRIPS Agreement (Watal, 20). An example of European denomination of origin can be seen with the European Commission’s recent registration of “Sklandrausis” as a Traditional Specialties Guaranteed item. Sklandrausis is a Latvian pie that holds significant value within Latvian culture. Through the denomination of origin, the food item’s name is now protected at the EU level. The products itself if traditionally eaten with milk or tea and it’s served cold. It’s composed out rye flour dough and then filled with layers of carrot filling and boiled potato. The denomination is added to the list of over 1,100 products, which are protected by the legislation governing geographical indication. If the quality, reputation or other aspects of the product’s existence are based primarily on its location of origin, then geographical indication comes into play as a significant factor (Taubman, 5). Within the guidelines of  geographical indications, within TRIPS, all parties involved in the distribution of products must put in place the legal recourses necessary to ensure they do not infringe on the geographical indications of other products or mislead the public in regards to how they represent the geographical origin of a certain good.

Analysis

Some of the general provisions of TRIPS entail Article 1.3, which defines members who are subject to the regulations within the TRIPS agreement.  These members are referred to as “nationals” but it includes all persons, natural or legal entities, who are closely connected to one another. The basis used to establish whether a person can be a member that benefits from the protection setup by the agreement is decide by guidelines drawn out in the WIPO conventions (Bronckers, 1246).  These guidelines pay respect to all WTO Members. The conventions from which regulations are taken and applied to members specifically are the Producers of Phonograms and Broadcasting Organizations (Rome Convention), the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty), the Paris Convention, the Berne Convention, and the International Convention for the Protection of Performers. This puts in place a system that has both favoured and unflavoured nationals.

Articles 3, 4 and 5 of the TRIPS agreement covers the key regulations governing the treatment of foreign nationals by the favoured and most favoured member countries as they relate to all aspects of intellectual property issues (Dreyfuss,  21). These articles cover substantive standards of protection as well as all matters influencing the availability, scope, maintenance, acquisition, and the actual implementation of intellectual property rights. . Discrimination among members is forbidden by the “most-favoured-nation treatment clause.”

The core objectives of the TRIPS Agreement are collected within the Preamble of the Agreement. This introductory section sets out all of the basic negotiating established through the  Uruguay Round objectives documented  in the TRIPS area by the 1986 Punta del Este Declaration, as well as the 1988/89 Mid-Term Review (Dreyfuss,  21).  The policies laid out entail the reduction of impediments and distortions to international trade, as well as the efficient safeguarding of intellectual property rights. These objectives also see that no actions taken to implement protocols become barriers in the process of legal trade. In this way the TRIPS Agreement ensures that intellectual property rights do not violate the rights of members, but also do not prevent or limit technological innovation.

It is essential to note that the TRIPS Agreement only covers minimum protection within policy so that it could be seen as necessary to provide further protection through EC denominations (Reichman, 41).  This is largely due to the fact that through EC denomination countries can better protect their main exports through which they are most commonly known. The articles provided within the TRIPS Agreement enable countries to establish bilateral agreements that can essentially result in establishing these denomination policies.

As previously revealed by Lesser, a legitimate measurement of whether a country has sound intellectual property rights can be seen in their level of Foreign Direct investment. Lesser finds there is a direct correspondence between FDIs and the efficiency with which a country pursues intellectual property rights. This includes securing the legitimacy of trademarks, brands, and geographical indication. The study identifies some of the following factors as variables influencing why foreign direct investors will chose one country over another distinctively respective of how well they enforce intellectual property laws, for businesses both international and domestic. Lesser notes that, “based on the preceding, the independent variables can be grouped into three categories as follows:

“1. Classical ‘gravity’-type variables describing business justifications for selecting one country over another, such as market size, costs openness and taxation, 2. Agglomeration benefits like infrastructure, FDI stock and degree of industrialization, and 3. Riskiness, such as the rule of law and exchange rate variability” (Lesser, 22).

The dependent variables in Lesser’s assessment are represented by all if the exports and foreign direct investors reported for every TRIPS Agreement member country.  Lesser utilized additional dependent variables, like tech exports and residuals earned or paid where data is available. What Lesser reveals is that enhanced intellectual property protection improves the economic development of a region through making it more appealing to investors.

Conclusion

In sum, international products under the guides of the TRIPS agreement are perceived as less different due to geographical indication. The reason geographical indication plays such a significant role in regards to intellectual property law is due to the fact that brands, trademarks and copyrights fail to take into account the unique characteristics are claimed as being more or less different is due to the fact that geographical indications are directly tied to the reputation, quality and other characteristics of particular regions or member countries from which the products originate. Improvements in intellectual property law can provide for analysis to supplement other legal and governmental initiatives. This is especially true in regards to how countries engage in bilateral agreements and programs where countries are forced to interact with one-another. In assessing the existing treaties, on intellectual property rights to establish an understanding of their effectiveness in handling matters of geographical indication, the findings revealed that treaties have progressively expanded aspects of international intellectual property rights, improving on their distinct definitions of policy. The natural progression of this transition has resulted in the European proposal to strengthen mechanisms of enforcement for “denominations of origin” which essentially empowers bilateral agreements to be more effective in safeguarding TRIPS member countries from having their trademarks violated through infringement of geographical indication. The data shows that denomination of origin adds an extra layer of policy to geographical indications of the TRIPS Agreement, while supplementing avenues for innovation and market entry. Currently, denomination of origin is used in bilateral agreements to enhance both awareness about, and ensure the quality of, certain trademark products that tie their production quality and notoriety to a particular region of the world. Many of these products are the ones most prone to being counterfeited for their marketability which does not just negatively impact the impression of the product but the country as well. In this respect, denomination of origin serves provides a much needed layer of regulatory enforcement and accountability that can produce policy that is shaped perfectly for the members involved.

Work Cited

Agarwal, Sanjeev, and Michael J. Barone. Emerging issues for geographical indication branding strategies. Midwest Agribusiness Trade Research and Information Center, Iowa State University, 2005.

Blasco, Juan, Gonzalez. “40^th European Congress (European Monetary Union and Regional Policy).” Dept. of Applied Economics. University of Granada.

Bramley, Cerkia, Estelle Biénabe, and Johann Kirsten. “The economics of geographical indications: Towards a conceptual framework for geographical indication research in developing countries.” The Economics of Intellectual Property (2009): 109.

Bronckers, Marco CEJ. “The impact of TRIPS: Intellectual property protection in developing countries.” Common Market Law Review 31.6 (1994): 1245-1281.

Correa, Carlos M. “The TRIPS Agreement and Developing Countries.” The World Trade Organization: Legal, Economic and Political Analysis. Springer US, 2005. 2010-2046

Dreyfuss, R. C. (2004). TRIPS-Round II: should users strike back. U. Chi. l. reV., 71, 21.

Dreyfuss, Rochelle Cooper, and Andreas F. Lowenfeld. “Two achievements of the Uruguay

Lesser, William. “The effects of TRIPS-mandated intellectual property rights on economic activities in developing countries.” World Intellectual Property (WIPO) Studies 1 (2001): 1-24.

Hughes, Justin. “Surrendering words to the EU.” Managing Intellectual Property 129 (2003).

Maskus, Keith Eugene. Intellectual property rights in the global economy. Peterson Institute, 2000.

Maskus, Keith E., and Jerome H. Reichman, eds. International public goods and transfer of technology under a globalized intellectual property regime. Cambridge University Press, 2005.

O’Connor, B. “Geographical indications and TRIPs: 10 Years Later… A roadmap for EU GI holders to get protection in other WTO Members.” Brussels: European Commission (2007).

Okediji, Ruth L. “Back to bilateralism? Pendulum swings in international intellectual property protection.” U. OTTAWA L. & TECH. J. 1 (2004): 127.

Round: putting TRIPs and dispute settlement together.” Va. J. Int’l L. 37 (1996): 275.

Reichman, Jerome H. “TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries, The.” Case W. Res. J. Int’l L. 32 (2000): 441.

Suh, Jeongwook, and Alan MacPherson. “The impact of geographical indication on the revitalisation of a regional economy: a case study of ‘Boseong’green tea.” Area 39.4 (2007): 518-527.

Taubman, Antony, Hannu Wager, and Jayashree Watal, eds. A handbook on the WTO TRIPS agreement. Cambridge University Press, 2012.

The World Trade Organization. TRIPS: A More Detailed Overview of The TRIPS Agreement. Geneva, Switzerland, 2014.

Watal, Jayashree. “Access to essential medicines in developing countries: does the WTO TRIPS agreement hinder it?.” Science, Technology and Innovation Discussion Paper 8 (2000)