The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the WTO seeks to establish standards and norms for the protection of Geographical Indications (GIs) as an Intellectual Property. It defines GIs as 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 characteristic of the good is essentially attributable to its geographical origin.

A typical example of a GI is Champagne which comes from the Champagne region in France. A GI can also be a non-geographical name - a point important for protection of ‘Basmati’ in India. Even before the TRIPS Agreement, some countries had established legal mechanisms to protect ‘indications of source’ and ‘appellations of origin’. The European Communities and their Members States possess the largest and most diverse portfolio of GIs.

The logic for protecting GIs is similar to that for protecting trademarks. Producers invest in developing unique and differentiated products identified by their geographical origin. Once the product, and therefore the producers, develop goodwill and reputation associated with that product, it follows that they should be protected from misappropriation and unfair competition. There is also a consumer interest in ensuring that they are not misled by misappropriation of the GI associated with the product.

What are the obligations under TRIPS Agreement ?

Under the framework of the TRIPS Agreement, Members are obliged to provide the "legal means for interested parties" to protect and enforce their rights. This allows countries to explore a variety of legal options towards fulfilling the obligation. A survey by the WTO Secretariat involving mainly developed countries led to the identification of three broad options: (a) laws focussing on business practices – using principles of unfair competition, (b) trademark law – allowing for certification marks, etc. and (c) creating a specific legislation for the protection of GIs.

An important issue at the TRIPS Council meetings focuses on the hierarchy in the level of protection – the difference between Article 22 (GI products other than wines and spirits) and Article 23 (GIs for wines and spirits). Wines and spirits are granted a stronger level of protection under Article 23. The TRIPS Agreement further mandates negotiations for the creation of a multilateral system for registration of wines and spirits. These negotiations are currently in progress.

Many developed and developing countries including India have been demanding the removal of the disparity between two types of protection for GIs for wines and spirits, on the one hand, and all other products, on the other. They have been demanding for an expansion of scope of protection available under Article 23 of the TRIPS Agreement to products other than wines and spirits. The basic idea behind seeking extension of Article 23 protection to all other products is that GIs can be used to promote the export of valuable products and prevent misappropriation.

Doha Ministerial Declaration under paragraph 18 directed that this issue would be addressed in the TRIPS Council pursuant to paragraph 12 of the Declaration. Trade Negotiating Committee(TNC) set up after Doha Conference was to report to the General Council by the end of 2002, however as there was no consensus among the Members on this issue, no decision could be arrived at. Draft Cancun Ministerial Text(Second Revision) under para 13 regarding implementation issues, while reaffirming the mandates given under para 12 of Doha Ministerial Declaration and Decision on Implementation-Related Issues and Concerns, instructed the TNC and other negotiating bodies to redouble the efforts to find appropriate solutions as a priority and requested the Director General to continue the consultations undertaken by him on issues including issues related to the extension of the protection of geographical indications provided for in Article 23 of the TRIPS Agreement to products other than wines and spirits. The General Council shall review progress and take any appropriate action no later than […….]. However, since there was no consensus among the Member countries on the draft Cancun Ministerial Text, the above draft language could not be agreed to.

However, the draft language as suggested by India and other like-minded countries on implementation issues was different. India alongwith other like-minded Member countries such as Cuba, Egypt, Indonesia, Jamaica, kenya, Malaysia, Pakistan, Sri Lanka, Tanzania, Uganda and Zimbabwe, while reaffirming that negotiations on outstanding implementation issues shall be an integral part of the Doha Work Programme, noted that there had not been much progress on this issue despite a mandate of ‘utmost importance’ from the Doha Ministerial and had proposed a draft language so as to direct the negotiating groups to address, as a matter of priority, implementation issues being dealt with by them and further direct the TNC to set up a negotiating group under its auspices to address all the remaining outstanding implementation issues contained in JOB(01)/152/Rev.1 as a matter of priority and to put forward decisions for adoption by March, 2004 with further instructions that the General Council would monitor and address the outstanding issues arising from the Decision on Implementation-Related Issues and Concerns with a view to adopt decisions by March, 2004.