Institutional and Legal Framework for GIs: Needs and Governance
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1 Institutional and Legal Framework for GIs: Needs and Governance Discussion Points FAO/SINER-GI Meeting on Sharing Views on Quality Products Linked to Geographical Origin: How Can They Contribute to Rural Development? Christoph Spennemann, Legal Expert, IP Team Division on Investment, Technology and Enterprise Development UNCTAD UNCTAD/CD-TFT 1
2 Basic requirements for GIs domestic legal frameworks (1) Domestic laws on GI protection need to reflect A country s economic policy goals & industry structure A country s legal traditions & international commitments A country s institutional framework UNCTAD/CD-TFT 2
3 Basic requirements for GIs domestic legal frameworks (2) Domestic protection is a prerequisite for any effective international protection Article 24.9, TRIPS Agreement Article 1 (2), Lisbon Agreement UNCTAD/CD-TFT 3
4 Diversity of domestic legal protection for GIs: different degrees TRIPS minimum standards Laws on unfair business practices; or trademark (TM) approach; or sui generis GIs TRIPS-plus Article 23 TRIPS extension to other products (mandatory exceptions under Article 24, e.g. prior use of TM) Appellation of origin approach (Lisbon): right to authorize termination of use of prior TMs, Article 5 (6) Bilateral recognition of names & practices Automatic protection (no examination of GI eligibility) Absolute protection (no exceptions: mandatory termination of use of prior TMs) UNCTAD/CD-TFT 4
5 Degree of protection Permissive system («Type A») Prescriptive system («Type D») or Variations in between («Types B, C») Choice depends on Policy goals & structure of domestic production Legal traditions & international commitments Existing institutional infrastructure UNCTAD/CD-TFT 5
6 Policy goals & structure of domestic production (1) Prescriptive system (sui generis GI, AO) where Small scale producers of niche & luxury products GIs as alternatives to mass production GIs as incentives to promote knowledge in traditional production methods, ecological production & sustainable use of biodiversity (UNCTAD BioTrade Facilitation Program for developing countries; UNCTAD/CD-TFT 6
7 Policy goals & structure of domestic production (2) Permissive system (TRIPS minimum; TM approach) where Large scale exporters of mass food production no interest in niche products strict AO/sui generis approach would prevent use of foreign names on home market Food processing industries & food marketers AO/sui generis systems extend protection to food processing may affect industry Example: 2003 judgment of European Court of Justice Consorzio del Prosciutto di Parma : not only production, but slicing & packaging as part of GI UNCTAD/CD-TFT 7
8 Legal traditions & international commitments GIs protection & promotion through state actors (sui generis/ao systems) GIs protection & promotion through private actors (TM systems) Commitments under international regimes: GI TM interface TRIPS Article 16: Prior TMs have general priority over GIs (EC/US WTO Panel; possible exceptions under Article 17) US FTAs: Refusal of GIs if consumer confusion with prior TMs EU FTAs: TRIPS-plus: GI priority over conflicting TMs irrespective of consumer confusion or prior TM use UNCTAD/CD-TFT 8
9 Existing institutional infrastructure (1) For efficient sui generis system, legislation alone is not sufficient Creation of infrastructure Producers associations Administrative & quality control agencies Enforcement authorities controlling misuses Know how by producers as to showing link between origin and product characteristics Know how & continuous efforts as to marketing Considerable expertise & resources required UNCTAD/CD-TFT 9
10 Existing institutional infrastructure (2) Consequence: no «one-size-fits-all» solutions, but case-by-case examination of local conditions regarding each particular product UNCTAD BioTrade Facilitation Program case studies (2005) Maca plant (Peru; nutritive & medical properties): favorable conditions Borojo fruit (Colombia): lack of origin quality link; lack of expertise & bodies to ensure uniform quality UNCTAD/CD-TFT 10
11 GIs and market access GIs provide negative right; no guarantee to access foreign markets Foreign sanitary requirements may act as potential market access barriers Foreign GI adminstrative system may complicate market access. Example: EU Regulation 510/2006 (agricultural products & foodstuffs): national inspection structures required for marketing of all GI products within EU UNCTAD/CD-TFT 11
12 Conclusions Succesful marketing of GI products requires elaborate legal & administrative framework, resources, expertise and political commitment Domestic legal frameworks should take account of policy priorities, structure of industry and available infrastructure & administration UNCTAD-ICTSD Project on IPRs & Sustainable Development: assistance to DC governments & firms in the use of GIs Regional workshops (Africa, Asia, Latin America) Case studies of successful GI marketing Exchange of experiences in GI management (regulatory councils) UNCTAD/CD-TFT 12
13 Contact Christoph Spennemann Legal Expert Intellectual Property Team Division on Investment, Technology and Enterprise Development (DITE) UNCTAD Tel: ++41 (0) Fax: ++41 (0) UNCTAD/CD-TFT 13
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