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Marcus Höpperger

International Protection of Geographical Indications Overview and Recent Developments Tbilisi, October 28, 2009. Marcus Höpperger. WHAT DO THE FOLLOWING PRODUCTS HAVE IN COMMON?. The Indication “Switzerland”. AND WHAT MAKES THEM DIFFERENT FROM EACH OTHER?. QUALITY? ORIGIN?

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Marcus Höpperger

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  1. International Protection of Geographical IndicationsOverview and Recent Developments Tbilisi, October 28, 2009 Marcus Höpperger

  2. WHAT DO THE FOLLOWING PRODUCTS HAVE IN COMMON?

  3. The Indication “Switzerland”

  4. AND WHAT MAKES THEM DIFFERENT FROM EACH OTHER? QUALITY? ORIGIN? • cheese • chocolate • knives • watches

  5. Geographical Indication In a non-technical sense: an indication that a given product originates in a given place (country, region, town, etc)

  6. Geographical Indications • Interrelation between product and origin • «Terroir» theory • Wine and spirits • Cheese, ham and cigars • Watches and knives • Not owned privately

  7. Cognac Scotch Havana Grappa Porto Champagne Darjeeling Direct Reference

  8. Indirect reference

  9. Indirect reference

  10. Indirect reference

  11. Indirect reference

  12. Acquired Geographical Meaning • Muscadet (?) • Basmati (?) • Vodka (?)

  13. Industrial Property … has as its object … “indications of source” or “appellations of origin” (Article 1(2) PC)

  14. Industrial Property … “shall apply likewise to agricultural industries […] and to natural products, for example wines, grain, tobacco, leaf, fruit, cattle, minerals, mineral waters, beer, flowers and flour”. (Article 1(3) PC)

  15. TERMINOLOGY

  16. Indication of Source “Indication referring to a country or to a place situated therein as being the country or place of origin of a product”

  17. MEMBERS OF THE PARIS CONVENTION (173)

  18. Paris Convention • Article 1(2) and (3) • Indications of source or appellations of origin • “manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.” • Article 6ter (State emblems) • Article 7bis (Collective marks) • Article 10 (Indications of source) • Article 10bis (Unfair competition)

  19. MADRID AGREEMENT (Indications of Source ) (35)

  20. Appellation of Origin “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 geographical environment, including natural and human factors” (Lisbon)

  21. STATES PARTY TO THE LISBON AGREEMENT (26)

  22. Lisbon Agreement • Protection of appellations of origin • and their international registration • Definition of subject matter • Scope of protection • 813 registrations in force • of 887 originally registered

  23. Geographical Indication “Indication which identifies 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” (TRIPS)

  24. The TRIPS Agreement • WTO Members (152) • Protection of Geographical Indications • TRIPS Article 22 to 24 • Negotiations • Article 23.4 • Doha Round

  25. Relationship (i)

  26. Relationship (ii)

  27. Generic Designation An indication of a place where a given product was originally produced, and which has become the common name of that product. Determination under national law.

  28. National Protection • in the absence of any international agreement • appreciation in accordance with national law and perception by the local consumers • geographical indication may be • distinctive • generic

  29. Types of Protection • protection against unfair competition (passing off) • Collective or certification marks • sui generis protection • administrative systems of protection

  30. Unfair CompetitionPassing Off • showing of an acquired reputation • likelihood of confusion (misappropriation of reputation) • damage

  31. Trademark Law • Collective Mark • Certification Mark

  32. Collective Mark

  33. Certification Mark

  34. Sui Generis Systems • Protected Appellations of Origin • e.g., France • Registered Geographical Indications • e.g., EU, Australia, Switzerland

  35. Administrative Systems E.g., U.S. (labeling requirements of BATF for wines and spirits)

  36. Geographical Indications • Collective rights • No individual owner • No assignment • Enforcement

  37. International Protection International Treaties: • bilateral treaties • multilateral treaties

  38. Bilateral International Treaties • long tradition (e.g., France since 1895) • exchange of lists with protected g.i. • conditions for protection • bind only contracting countries

  39. Multilateral International Treaties • Paris Convention (1883) • Madrid Agreement (1891) • for the Repression of False or Deceptive Indications of Source on Goods • Lisbon Agreement (1958) • for the Protection of Appellations of Origin and their International Registration • TRIPS Agreement (1994)

  40. The Issue • Distinctive signs for collective use • How is the use attributed? • Who has the right to administer attribution? • Can it be monopolized by an individual? • Collective use • Who defines conditions of use? • Who looks after it? • Quality control? • Enforcement?

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