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The Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration: An Assessment of a Controversial Agreement

Abstract

After a brief review of the main features of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, this article analyzes its controversial revision process and outcome, the recently adopted Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, in order to assess to what extent the new Act features the flexibility necessary to make it more attractive and the consequent role of the Geneva Act in the broader context of the development of international law on geographical indications.

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Notes

  1. On the notion of GIs and AOs see, among others, O’Connor (2004), p. 22 et seq.; Gangjee (2012), pp. 2 et seq.

  2. See specification of Parmigiano Reggiano cheese in force as of 29 August 2011, available at www.parmigianoreggiano.com.

  3. See, among others, van Caenegem (2003), pp. 861–869.

  4. See Council Regulation 1151/2012, OJ L343/1. On the EU system see, among others, Blakeney (2014), pp. 68 et seq.; Mantrov (2014), pp. 113 et seq.

  5. For example, they may differ concerning the establishment of a registration system, the scope of application (all goods or only food) and product specification requirements (Kireeva and O’Connor 2009, pp. 277–286).

  6. For an overview of different legislations, see Echols (2008), pp. 99–158; O’Connor and Company (2007).

  7. On the uniqueness principle and on theoretical divergences between the new and the old world see, among others, Das (2010), pp. 450–459. On Champagne in particular see Hughes (2006), pp. 374–378.

  8. Paris Convention for the Protection of Industrial Property 1883, 828 UNTS 305.

  9. Indications of source were introduced by the Washington Revision Conference in 1911 and AOs by the Hague Revision Conference in 1925.

  10. Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration 1958, revised 1967, amended 1979, 923 UNTS 205.

  11. See also the International Convention on the Use of Appellations of Origin and Denominations of Cheeses (Stresa Convention) 1951.

  12. See Regulations under the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, Rules 3(1) and 5.

  13. Actes de la Conférence de Lisbonne, 1963, at 836 and 846.

  14. See Law of 6 May 1919 on Appellations d’Origine Contrôlée. On AOs in France see, among others, Gangjee (2012), pp. 77 et seq.

  15. For a different interpretation see Ficsor (2008), para. 11.

  16. On the notion of reputation in the Lisbon Agreement see, among others, Gervais (2009), p. 90; Gangjee (2012) pp. 145–146.

  17. Lisbon Union Council, Report, AO/V/8, September 1970.

  18. On the “absolute” label see Gangjee (2012), pp. 158 et seq.

  19. Article 10bis(3)(3) prohibits “indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods”.

  20. In this terms see UNCTAD and ICTSD (2005), p. 294. See also Taubman (2008), pp. 251–252.

  21. In this sense already Bodenhausen (1968), p. 144.

  22. It is out of the scope of this paper to argument on the conundrum of IP rationales to justify GIs which are of course very peculiar IP rights, as trademarks are (see, among others, Raustiala and Munzer 2007, pp. 352 et seq.) nor on justifications of the “absolute” protection (on this see, among others, Rangnekar 2010, pp. 529–536).

  23. See, among others, Geiger et al. (2010), pp. 150 et seq.; Ficsor (2008), pp. 4 et seq.

  24. Actes, supra note 13, pp. 813 et seq.

  25. Actes, supra note 13, pp. 814–815 and 831. See also Gangjee (2012), p. 148 and Ficsor (2008), para. 27.

  26. Geiger et al. (2010), p. 151.

  27. Working Group on the Development of the Lisbon System, Results of the Survey on the Lisbon System, LI/WG/DEV/2/2, 18 June 2010, para. 5.

  28. See also Art. 9 providing that parties shall protect registered GIs and AOs “within its own legal system and practice […] and on the understanding that Contracting Parties that do not distinguish in their national or regional legislation as between appellations of origin and geographical indications shall not be required to introduce such a distinction into their national or regional legislation”.

  29. Draft treaty on the Protection of Geographical Indications, Committee of Experts on the International Protection of Appellations of Origin and other Indications of Source, TAO/II/2, 25 August 1975; Committee of Experts on the International Protection of Geographical Indications, The need for a new treaty and its possible contents, GEO/CE/I/2, 9 April 1990.

  30. Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Agreement Establishing the World Trade Organisation 1994, 1869 UNTS 299.

  31. On TRIPs negotiating history and provisions concerning GIs see, among others, UNCTAD and ICTSD (2005), pp. 267 et seq.; Gervais (2003), pp. 184–211.

  32. Communication from Albania, Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group, Draft modalities for TRIPS-related issues, TN/C/W/52, 19 July 2008.

  33. On the negotiations within the WTO see, among others, Das (2010), pp. 473–511; Rangnekar (2004), pp. 19–23.

  34. See, among others, Dagne (2015), pp. 135 et seq.; Dutfield (2013), p. 175; Giovannucci et al. (2009), pp. 2 et seq. See also Calboli, (2015), pp. 447–457.

  35. On TK see WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The protection of traditional knowledge: draft articles, WIPO/GRTKF/IC/28/5, 2 June 2014: “Traditional knowledge [refers to]/[includes]/[means], for the purposes of this instrument, knowhow, skills, innovations, practices, teachings and learnings of [indigenous [peoples] and [local communities]]/[or a state or states] […]”. See also, among others, Nijar (2013), pp. 1205–1209.

  36. Lisbon Union Assembly, Preparation of certain amendments to the regulations under the Lisbon Agreement: Establishment of a Working Group, 31 July 2008.

  37. Lisbon Union Assembly, Further work of the Working Group on the Development of the Lisbon System, LI/A/25/2, 19 June 2009.

  38. Working Group on the development of the Lisbon system, Summary by the chair, LI/WG/DEV/1/3, 20 March 2009, para. 21.

  39. The International Bureau received 13 contributions from Lisbon member states, 12 contributions from non-Lisbon members and few other contributions from intergovernmental organization, non-governmental organizations, professional organizations, academia and private enterprises (LI/WG/DEV/2/2, supra note 27, para. 3).

  40. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 1989.

  41. Preparatory Committee of the Diplomatic Conference for the Adoption of a Revised Lisbon Agreement on Appellations of Origin and Geographical Indications, Verbatim Report, LI/R/PM/7, especially paras. 16 and 29.

  42. See, among others, Sands (2011), pp. 967–969.

  43. Bangui Agreement Relating to the Creation of an African Intellectual Property Organization, Constituting a Revision of the Agreement Relating to the Creation of an African and Malagasy Office of Industrial Property 1977.

  44. Diplomatic Conference for the Adoption of a New Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, List of participants, LI/DC/INF/2, 28 May 2015.

  45. Diplomatic Conference for the Adoption of a New Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, Rules of procedures, LI/DC/2, 11 May 2015, Rules 2 and 33.

  46. Preparatory Committee of the Diplomatic Conference for the Adoption of a Revised Lisbon Agreement on Appellations of Origin and Geographical Indications, Proposal by the delegations of Argentina, Australia, Bhutan, Canada, Chile, Israel, Japan, New Zealand, Panama, Republic of Korea, Singapore, the United States of America and Uruguay prepared by the Secretariat, LI/R/PM/5/Rev. 3, 31 October 2014.

  47. On consensus see, among others, Wolfrum and Pichon (2010), para. 3.

  48. LI/R/PM/7, supra note 42, paras. 141–143.

  49. Ibid. However, although not possible to examine exhaustively the issue here, it can be argued that only one objection could not amount to a veto (see, among others, Akande 2013).

  50. See especially Sands (2011), p. 983; Villiger (2009), pp. 522–524.

  51. LI/R/PM/7, supra note 42, especially paras. 16, 26 and 29.

  52. Records of the Diplomatic Conference for the Conclusion of a Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, Madrid, 1989, at 70.

  53. Diplomatic Conference for the Adoption of a New Act of the Hague Agreement Concerning the International Deposit of Industrial Designs, Rules of Procedure, H/DC/12, 23 June 1999, at 13; Preparatory meeting for the Diplomatic Conference for the Adoption of a Revised Trademark Law Treaty, Report, TLT/R/PM/3, 26 April 2005, Annex III, at 12.

  54. See WIPO Development Agenda, Recommendation 15.

  55. WIPO General Assembly, Matters Concerning the Administration of the Geneva Act of the Lisbon Agreement: Proposal of the United States of America to the WIPO General Assembly, WO/GA/47/3, 4 September 2015.

  56. WIPO General Assembly, Draft Report, WO/GA/47/19PROV, 2 November 2015, para. 326.

  57. Lisbon Union Assembly, Proposal to update the fee schedule under Rule 23 of the Regulations under the Lisbon Agreement, LI/A/32/2, 19 August 2015, para. 6. Indeed a major point raised by the US within the Working Group was the financial sustainability of the system, but a compromise, especially on the increase of fees, has not been reached (Working Group on the Development of the Lisbon System, Report, LI/WG/DEV/9/8, 17 October 2014, paras. 285 et seq.).

  58. Patent Cooperation Treaty, 1970.

  59. Madrid Agreement Concerning the International Registration of Marks, 1989.

  60. Maple Leaf Food Inc. has used the trademark “Parma” since 1958 and registered it in 1971.

  61. Marie-Vivien (2010), pp. 123 et seq.

  62. Within the EU see Case C-10/89, SA CNL-SUCAL NV v. HAG GF AG, [1990] ECR I-3711.

  63. International symposium on geographical indications jointly organised by WIPO and the State Administration for Industry and Commerce of the People’s Republic of China, Geographical indications at the national level a variety of approaches and institutional aspects, WIPO/GEO/BEI/07/1, 6 June 2007, at 4–6.

  64. See Basole (2015), p. 142; Yeung and Kerr (2011), pp. 363–364.

  65. Dagne (2015), pp. 138–143.

  66. See, among others, Evans (2010), pp. 229 et seq.

  67. See the standard of protection of TK that would be provided for by the international instrument drafted within WIPO (WIPO/GRTKF/IC/28/5, supra note 36).

  68. See the Lanham Act 15 USC §1054. See also Evans (2013), pp. 23–26.

  69. Actes, supra note 13, at 835–838.

  70. LI/WG/DEV/2/2, supra note 27, paras. 68 et seq.

  71. See Geiger et al. (2010), pp. 155–157.

  72. See supra note 12.

  73. LI/WG/DEV/2/2, supra note 27, para. 93.

  74. See Working Group on the Development of the Lisbon System, Report, LI/WG/DEV/8/7, 12 June 2014, para. 234; Working Group on the Development of the Lisbon System, Report, LI/WG/DEV/10/7, 21 April 2015, paras. 149–167.

  75. LI/WG/DEV/9/8, supra note 58, para. 92; LI/WG/DEV/10/7 supra note 75, para. 35.

  76. LI/WG/DEV/8/7, supra note 75, paras. 91 and 97.

  77. LI/WG/DEV/2/2, supra note 27, paras. 15–16. It is beyond the scope of this article to examine the link between land and quality and on the consequent justification for higher protection for GIs, which are not always linked to quality (see Hughes 2006, pp. 352–368).

  78. According to TRIPs, Art. 22.1 “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” (see, among others, O’Connor 2004, p. 54).

  79. Gangjee (2012), p. 139.

  80. LI/WG/DEV/9/8, supra note 58, para. 54.

  81. Ibid., para. 39.

  82. Ibid., para. 47.

  83. Working Group on the Development of the Lisbon System, Report, LI/WG/DEV/5/7, 16 November 2012, para. 110.

  84. See Dagne (2015), p. 162. In general on the human element see Gangjee (2012), pp. 141–143.

  85. LI/WG/DEV/5/7, supra note 84, paras. 140 et seq.

  86. On these notions see Gangjee (2012), pp. 162–177.

  87. See Regulation 1151/2012 supra note 4, Art. 13(1)(b) and the Case 132/05, Commission v. Germany, [2008] ECR I-957 concerning the possibility for holders of the Italian protected designation of origin “Parmigiano-Reggiano” to prevent the marketing of a cheese under the name “Parmesan” in Germany.

  88. Working Group on the Development of the Lisbon System, Report, LI/WG/DEV/6/7, 26 April 2013, para. 177.

  89. According to Art. 16.3 TRIPs: “Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use”.

  90. LI/WG/DEV/6/7, supra note 89, para. 53.

  91. See, among others, Gangjee and Burrell (2010), pp. 282 et seq.

  92. Ficsor (2008), paras. 36–42.

  93. See, among others, the Agreement between the European Community and the United Mexican States on the mutual recognition and protection of designations for spirit drinks, OJ 1997 L 152, Art. 6; the Agreement between the European Community and the Swiss Confederation amending the Agreement between the European Community and the Swiss Confederation on trade in agricultural products, OJ 2009 L 136, Art. 5(4); the Free Trade Agreement between the European Union and its Member States, of the one part and the Republic of Korea, of the other part (signed on 6 October 2010, provisionally applied since 1 July 2011), Art. 10.25(3).

  94. See, in particular, LI/WG/DEV/8/7 supra note 75, paras. 25 and 131.

  95. See LI/WG/DEV/5/7 supra note 84, para. 163: “As regards the possibility for trademark systems to confer a high level of protection to geographical indications in accordance with Article 3 of the current Lisbon Agreement, the Representative of ORIGIN referred to the findings of a recent study on the American system that ORIGIN had conducted together with eminent American lawyers and law professors. The conclusions of the study were that with some minor amendments to US legislation, the US trademark system could achieve a level of protection that would be compatible with article 23 of the TRIPS Agreement, which was similar to article 3 of the Lisbon Agreement. He therefore expressed the view that aiming at a high level of protection within the Lisbon system would not automatically mean excluding all trademark protection systems.”

  96. In this regard see LI/WG/DEV/6/7, supra note 89, paras. 52 and 114 et seq.

  97. See for example LI/WG/DEV/8/7, supra note 75, par. 25, LI/WG/DEV/9/8, supra note 58, paras. 236 et seq.

  98. Council Regulation 2081/92, OJ 1992 L 208, art. 14.

  99. WTO, “EC – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs”, Report of the panel, 15 March 2005, WT/DS174/R; on this see Pires de Carvalho (2014), pp. 290–303.

  100. See LI/WG/DEV/9/8, supra note 58, paras. 142 and 213 and 216.

  101. However, as indicated in the Lisbon Conference Records (Actes, supra note 14, at 838), exceptions to this general rule may apply so members may already provide for acquiescence according to Gervais (2012), p. 130 quoting Geuze, “Let’s Have Another Look at the Lisbon Agreement: Its Terms in Their Context and in the Light of Its Object and Purpose”, WIPO/GEO/BEI/07/10, 18 June 2007, at 8.

  102. In this regard see also Pires de Carvalho (2014), pp. 382–383.

  103. See, for example, the Agreement between the European Community and Australia on trade in wine, OJ 1994 L 86: this provided for the protection of a great number of European GIs, some of which were used by Australian companies, and, for certain sensitive GIs such as Chianti, Beaujolais and Champagne, a transitional period in order to give more time to manufacturers to rebrand their products.

  104. Ibid.

  105. See, among others, the Agreement between the European Community and the United States of America on trade in wine, OJ 2006 L 87; the Agreement between the European Community and Australia on trade in wine, OJ 2009 L 28; CETA consolidated text, available online at http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf. Accessed 8 November 2015.

  106. Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part (signed on 6 October 2010, provisionally applied since 1 July 2011).

  107. Gervais (2012), p. 143.

  108. See TRIPs Council special session, Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits, Draft Composite Text, JOB/IP/3/Rev.1, 20 April 2011, attached to TRIPs Council, Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits, Report by the Chairman, TN/IP/21, 21 April 2011.

  109. See in this regard also WTO, TRIPs Council, Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits, Report by the Chairman, TN/IP/22, 1 April 2014, para. 6.

  110. Pugatch (2006), pp. 177–207.

  111. Taubman (2008), pp. 260–263; O’Connor (2014), p. 66.

  112. It has to be noted that at the moment the Lisbon Agreement is in force only in seven EU Members (Bulgaria, Czech Republic, France, Hungary, Italy, Portugal and Spain). It cannot be forgotten that also at the EU level interests between northern and southern countries are different.

  113. See supra note 108.

  114. TPP Treaty: Intellectual Property Rights Chapter, Consolidated Text (5 October 2015) https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf. Accessed 8 November 2015.

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Micara, A.G. The Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration: An Assessment of a Controversial Agreement. IIC 47, 673–696 (2016). https://doi.org/10.1007/s40319-016-0496-3

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Keywords

  • Geographical indications
  • Appellations of origin
  • WIPO
  • TRIPS