Geographical Indications at the WTO: An Unfinished Agenda

Abstract:Over the recent past, Geographical Indication (GI) has emerged as one of the most contentious categories of intellectual property (IP). Two among the three TRIPS issues presently under discussion at the WTO pertain to GIs, the third being the relationship between the TRIPS and the CBD. Interestingly, in sharp contrast to the archetypical North-South divide on IP issues in the realm of the WTO and beyond, in the sphere of GIs one comes across developing countries joining hands with developed countries either as demandeurs or opponents in the ongoing WTO talks, depending on their respective stakes on GIs. The aim of this paper is to provide a concise account of the ongoing WTO discussions on GIs. However, the dynamics of the current negotiations cannot be put into perspective unless judged in the light of the key reasons underlying the discordance between the two sides of this highly contentious area, namely the ‘Old World’ and the ‘New World’. With this aim in view, the paper explores some of the key historical, legal and economic reasons underlying the GI row. Given that the issues presently under discussion have their origin in the Uruguay Round negotiations and the compromise deal on GIs that they culminated into, the paper undertakes a rigorous assessment of the drafting history of the Uruguay Round. It then goes on to track the ongoing negotiations and analyzes various negotiating proposals under consideration on the three GI issues: multilateral register for wines and spirits; extension of the higher level of protection presently available for wines and spirits to all product categories; and the ‘claw-back’ proposal of the European Communities (under the agriculture agenda). The paper argues that the recent emergence of a strategic alliance of more than 100 Member countries in support of a parallelism on the three IP issues may be helpful in pushing the GI agenda forward, including the case of ‘extension’ that has been strongly supported by many developing countries including China, India, Pakistan, and Sri Lanka, among others. However, adequate legal protection at the international level through the ‘extension’ route can at best be regarded as necessary but in no way sufficient for reaping the commercial benefits out of the Southern GIs in the global market. Hence, the developing country proponents of GIs need to weigh the costs and benefits among various issues of interest to them before taking any particular stance at the WTO in the future. Given that the aforesaid strategic alliance was reached at the cost of a significant compromise on the part some of these developing countries on the TRIPS/CBD front, it remains an open question whether such a compromise was worth making for these countries, many of whom could actually have benefited more by getting a better deal on TRIPS/CBD than on GIs!