Legal News
Improved protection for South African geographical indications

Author: Emmie de Kock - Date: June 2003

Introduction:
The protection of geographical indications remains a controversial issue, as strong opposing views exist regarding the extent of protection which should be granted. This issue relates to the protection of names of particular food products, wines and spirits associated with specific geographical places. Like other intellectual property rights, geographical indications are sought to be protected by traders and producers with a view to benefit and profit from the associated qualities, characteristics or reputation of the particular location in which the products originate.

There are a number of different definitions for geographical indications. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was signed on 1 January 1995, provides minimum standards for the protection of certain intellectual property types including names of products which are associated with specific geographical places.

Section 3, Article 22(1) of TRIPS defines geographic indications as those names “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 geographic indication.” An example of a geographical indication is scotch whisky.

Members of the WTO often have different views about the extent of protection of geographical indications which should be granted. In this regard, on the one side, the members of European Union and its supporters are generally seeking broad protection for a wide-variety of agricultural and other products. This group includes countries like Kenya, Mauritius, Nigeria, Pakistan, Sri Lanka, Switzerland and Thailand. The other side of the debate is usually represented by a group of members who are generally opposed to the extension of additional protection beyond wines and spirits. This group generally includes countries like the United States of America, Argentina, Australia, Canada, Japan, New Zealand, Namibia, Ecuador and Chile.

The result of a matter heard by the WTO panel earlier this year, relating to the issue of geographical indications, had some positive implications for South Africa. This matter is discussed below.

Amendment ordered of EC Regulation 2081/92:
On 19 April 2005, the WTO’s Dispute Settlement Body ruled in favour of the United States of America that certain provisions of the EC Regulation 2081/92 contravened with the European Union’s obligations under GATT and TRIPS Agreement and that it should be amended.

It was claimed that the Regulation discriminates against foreign geographical indications and that it allegedly infringes the National Treatment principle. The National Treatment obligation under Article III of GATT 1994 requires that each WTO member accords to the nationals of other WTO members, treatment no less favourable than it accords its own nationals. The operation of the National Treatment principle extends to the TRIPS agreement and requires WTO members to provide the same intellectual protection for foreign nationals, that it provides for its own nationals.

EC Regulation 2081/92 was adopted in 1992 to protect the geographical indications and designations of origin for agricultural products and foodstuffs. The Regulation inter alias provides that geographical indications for products originating outside the European Union may only be registered, if the government in whose territory the geographical indication is located, adopts a system for geographical indication protection that is equivalent to the European Union’s system; and provides reciprocal protection to geographical indications from the European Union. The Regulation furthermore required the foreign geographical indications government to provide and monitor the necessary inspection structures used to ensure the product meets the European regulatory standards.

The WTO panel ruled that the conditions for registration under the EC regulation 2081/92 constituted less favourable treatment of foreign products and therefore violates the National Treatment principle. The European Union failed to prove why cooperation by governments is necessary to ensure that geographical indications meet the requirements. It furthermore found that the requirement for government monitored inspection structures discriminated against foreign nationals.

In response to the WTO ruling, the Agricultural Council of the European Community adopted EC Regulation 510/2006 to replace EC Regulation 2081/92. The new regulation came into operation on 31 March 2006.

In terms of the new regulation, protection available for EU geographical indications is extended to foreign geographical indications, irrespective of whether the foreign government affords equivalent and reciprocal level of protection to European Union geographical indications. Foreign geographical indication producers may now apply directly to the Commission, instead of having to apply to local government for assistance.

Implications for South Africa:
Before this development, South African geographical indications enjoyed limited protection. The new regulation now presents the opportunity to producer groups to apply for protection of South African geographical indications throughout the European Union. The new regulation provides for producer groups to apply directly for protection and it is no longer necessary to call on government to take the necessary steps in securing protection for South African geographical indications in the European Union. This therefore empowers South African producers of high value agricultural products with geographical linkages, to take ownership of the process of protecting their territorial assets.

You are welcome to contact us, if you require any further information or assistance.

Sources:
1. Bramley, Cerkia (18 July 2006) EC Regulation 510/2006: Towards improved protection for SA geographical indications in the EU retrieved at http:/rta.tralac.org/scripts/content.
2. Grant, Catherine (November 2005) Geographical indications: Implications for Africa for the Trade Law Centre of Southern Africa.
3. Berkley, Judson (April 2000) Implications of the WTO Protections for Food Geographic Indications retrieved at http://asil.org/insights.

 

 

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