Geography Reference
In-Depth Information
situations where geographical indications might have an impact upon trade
mark protection.
13
(ii) 'Legal means'
In relation to (a) Art 22.2 does not specify the legal means to protect GIs. This
is left for Members to decide. Thus GIs could be protected under consumer
protection laws or as an aspect of trade marks laws, such as by a certification or
collective mark. In relation to (b) GIs could be protected under unfair com-
petition laws or under actions such as passing off.
2.46
(iii) 'Interested parties'
In
EC - Trademarks and Geographical Indications (US)
the Panel explained that
the obligation in Art 22.2 is to provide certain legal means to 'interested parties'
who are nationals of other Members in accordance with the criteria referred to
in Art 1.3. The interested parties must qualify as 'nationals of other Members' in
accordance with the criteria referred to in Art 1.3. The Panel pointed out that
these persons can be private parties, which is reflected in the fourth Recital of
the preamble to the agreement, which reads '
[r]ecognizing
that intellectual
property rights are private rights'.
14
2.47
2.48
Although the term 'interested party' is also used in Art 10(2) of the Paris
Convention (1967) as incorporated in the TRIPS Agreement, by Art 2(1) of
the TRIPS Agreement, in
EC - Trademarks and Geographical Indications (US)
,
the Panel observed that Art 10(2) of the Paris Convention (1967) did not set
out a criterion for eligibility for protection for the purposes of the TRIPS
Agreement although it may provide guidance on the interpretation of Articles
22 and 23 of the TRIPS Agreement.
15
(c) Non-protection of expired geographical indications
Article 24.9 provides that there is no obligation under the TRIPS Agreement to
protect GIs 'which are not or cease to be protected in their country of origin, or
which have fallen into disuse in that country'.
2.49
(d) Non-diminution of geographical indications protection
Article 24.3 of the TRIPS Agreement requires that in implementing the GIs
provisions a WTO Member shall not diminish the protection of GIs that
existed in that Member immediately prior to the date of entry into force of the
WTO Agreement.
2.50
13
Panel Report,
EC - Trademarks and Geographical Indications (Australia)
, para 7.714.
14
Panel Report,
EC - Trademarks and Geographical Indications (US)
, paras 7.742-7.743.
15
Panel Report in
EC - Trademarks and Geographical Indications (US)
, para 7.170.
