A Comparative Analysis of the Transatlantic Controversy over Geographical Indications


Research project

Investigator:

Xiaoyan Wang

Abstract:

Geographical indications (GIs) are one of the most controversial categories of intellectual property rights. The difficulties of GI protection do not only result from the overlapping dimensions of law, economics, culture, and social policy, but are also caused by the underdeveloped doctrinal basis. In the WTO arena, countries from the Old World and countries from the New World remain deeply divided on issues of creating a multilateral register for GIs for wines and spirits and extending the Article 23 level of GI protection beyond wines and spirits, leading to a deadlock of multilateral negotiations on GI protection.
On the one hand, the US, as a country of the New World, qualifies GIs as commercial signs, not distinguishing them from trademarks and claims that are sufficient to protect GIs under trademark law within the scope of consumer confusion or unfair competition. In the US, GIs are mainly protected as geographical certification marks, which means that the concept of GIs is not supported in the US. On the other hand, the EU, with an abundance of GI resources, established the first legal framework of rules and a system of registration for designations of origin and geographical indications. The EU is the leading advocate for a higher level of protection of all GIs other than GIs for wines and spirits. In response to the gridlock of international negotiations on GI protection, the EU has turned to bilateral agreements, in order to provide an enhanced level of GI protection and reserve European names for local operators.
The debates in the Doha Round and the positions of the US and EU on GI protection reflect a divergent understanding of GIs regarding the underlying concept, purpose, and specific rules between the Old World and the New World, and are closely associated with their trade interests. Therefore, exploring the reasons why these differences emerged and considering the potential of harmonizing these differences between the US and the EU do not only concern the two parties in question, but can also lead to a potential compromise between the New World and the Old World, which would be of significance of bringing WTO Member States closer together again when negotiating these issues on the WTO level, and may lead to new developments of GI protection on an international level.