Geography Reference
In-Depth Information
(d) Use of terms common in the trade
Article 24.6 provides that nothing contained in section 3 of the TRIPS
Agreement containing the GIs provisions shall require a WTO Member to
apply its provisions in respect of a geographical indication of any other Member
with respect to goods or services for which the relevant indication is identical
with the term customary in common language as the common name for such
goods or services in the territory of that Member.
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(e) Use of person's name
Article 24.8 of the TRIPS Agreement provides that section 3 of the TRIPS
Agreement containing the GIs provisions shall in no way prejudice the right of
any person to use, in the course of trade, that person's name or the name of that
person's predecessor in business, except where such name is used in such a
manner as to mislead the public. The equivalent provision in trade marks law
requires the use of a person's name to be in good faith. Article 24.8, instead of
focusing upon motive, addresses the effect of the use of the name. It requires the
public to be misled, rather than the narrower focus of consumer protection
legislation, which typically prohibits the misleading of consumers or potential
consumers. The relevant focus will have a bearing on the standard of credulity
which a court may impose. The name of a person known to consumers of a
particular product, might not be known to the public at large. Of course, to fall
within this provision the relevant name would have to indicate a geographical
origin.
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3. Additional protection for geographical indications for wines and spirits
In addition to the general protection for GIs for wines and spirits within the
general context for the protection of GIs contained in Art 22, additional
protection is accorded GIs for wines and spirits by Art 23.
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(a) False indications
Article 23.1 provides that:
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Each Member shall provide the legal means for interested parties to prevent use of a
geographical indication identifying wines for wines not originating in the place
indicated by the geographical indication in question or identifying spirits for spirits not
originating in the place indicated by the geographical indication in question, even
where the true origin of the goods is indicated or the geographical indication is used in
translation or accompanied by expressions such as 'kind', 'type', 'style', 'imitation' or the
like.
