IRJMSH Vol 7 Issue 1 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

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TRIPS AGREEMENT: IMPACT ON PROTECTION OFGEOGRAPHICAL

INDICATION

Ms. DEEPIKA TIWARI

LLB, LLM (SPECIALIZATION IN IPR)

INTRODUCTION

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international

agreement between the member nations of World Trade Organization (WTO). The TRIPS

Agreement is aimed at harmonizing the Intellectual Property and related laws and regulations

worldwide.1 The TRIPS Agreement the pieces this motive by setting minimum standards for

protection of various forms of IP. The nations that is signatory to the TRIPS Agreement has to

abide by these minimum standards in their national laws related to IP.2 The coverage of the

TRIPS Agreement encompasses the different areas of IP intellectual property including patents,

trademarks, copyrights, geographical indications, industrial designs, etc.

History of Agreements for GI Protections

In 1944, for the first time an international agreement was reached upon to govern the

international monitory policy. These were called the Bretton Woods Agreement. The Bretton

Woods accommodation created two institutions to govern the international monitory policy:

International Bank for Reconstruction and Development (IBRD, the World Bank) in 1945 and the

International Monetary Fund (IMF) in 1946. Subsequently, the General Agreement on Tariffs and

Trades (GATT) was established in 1947 to harmonize the trade between various nations. GATT

was the only multilateral instrument governing international business from 1948 until the

establishment of the WTO in 1995.3

WTO (world trade organization) deals with the rules of trade between nations at a global level.

The objective of WTO is to provide the common institutional framework for the observance of

the trade relations among its member nations in matters related to the agreements and associated

legal instruments. WTO (world trade organization) is responsible for negotiating and

implementing new trade agreements, and is in charge of monitoring member countries‘ adherence

to all the WTO agreements, signed by the majority of the world's trading nations. Many new

agreements, regulations, treaties and conventions were introduced to provide the framework for

execution, administration and operation of the multi-lateral trade agreements between member

nations. All these agreements, treaties, conventions and regulations were based on two principles,

namely:

1 TRIPSAgreement, “WhydidIndiasigntheTRIPSagreement?” Availableat: http://www.quora.com/Why-did-

India-sign-the-TRIPS-agreement (Visitedon18/07/2015) 2 PartII: InternationalIPRAgreementsRegulatingPlantVarietiesandPlantBreeders‘ Rights, Availableat:

http://www.fao.org/docrep/007/y5714e/y5714e03.htm (Visitedon18/07/2015) 3 D.C. Kapoor, ―ExportManagement – 1E‖ pp. 117-118, 2009, Availableat:

https://books.google.co.in/books?isbn=8125909397 (Visitedon19/07/2015)

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a) Most Favored Nation treatment: Equal treatment for nationals of all trading partners in the

WTO;

b) National Treatment: Treating one‘s own nationals and foreigners equally.

One of the vital agreements among all of WTO Agreements is the TRIPS Agreements. The

TRIPS Agreement have emerged as the majority widely impacting agreement post WTO leading

to harmonization of IP related laws and regulations among member nations. The TRIPS

agreements are came into force on 1st January, 1995.

Areas covered by TRIPS

As earlier stated, the TRIPS Agreement is an international agreement administered by WTO that

sets down minimum standards for many forms of intellectual property regulations.4 The

Agreement, which came into effect on 1st January, 1995 is till date the most extensive multilateral

agreement on intellectual property.5 And The Agreement covers the following areas of

intellectual property:

Copyrights and Related rights (i.e. the rights of performers, producers of sound recordings

and broadcasting organizations)

Trademarks (including service marks)

Geographical Indications (including appellations of origin)

Industrial Designs

Patents (including the protection of new varieties of the plants)

Layout-designs of the Integrated Circuits

Undisclosed Information (including Trade Secrets and Test Data)

With respect to the above areas of IP, the Agreement governs the following issues:

How basic principles of the trading system and other international IP agreements should

be applied?

How to give sufficient protection to IPR?

How countries should embed intellectual property right IPR adequately in their own

territories?

How to settle disputes on IP intellectual property between members of the WTO?

To Special transitional arrangements during the period when the new system is being

introduced.

The Agreement is the first agreement under world trade organization under which the member

nations are expected to establish relatively detailed norms within their national legal systems, as

4 KailashChoudhary, “India: Cross-RetaliationUnderTheWorldTradeOrganizations (WTO-

DSM)”2013,Availableat:

http://www.mondaq.com/india/x/219478/international+trade+investment/CROSSRETALIATION+UNDE

R+THE+WORLD+TRADE+ORGANIZATIONS (Modifiedon04/02/2013) 5 Overview: theTRIPSAgreement,Availabelat:

https://www.wto.org/english/tratop_e/trips_e/intel2c_e.htm (Visitedon19/07/2015)

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well as to establish enforcement measures and procedures meeting minimum standards.6 The

three important features of this Agreement are:

Standards

Enforcement

Dispute Settlement

First, in respect of each of the areas of IP covered by the Agreement, each of the member nations

is obliged to provide a minimum set of standards for protecting the respective IPR. Under each of

the areas of intellectual property covered by the Agreement, the main elements of protection are

defined, namely the subject-matter to be protected, the rights to be conferred and permissible

exceptions to those rights, and the minimum duration of protection. Second each member nation

is grateful to provide domestic procedures and remedies with respect to protection of intellectual

property right IPR. The Agreement lays down certain general principles applicable to all

intellectual property right IPR enforcement procedures.7 The Agreement also lays down few

other provisions on civil and administrative mechanics and remedies, special requirements related

to border measures and criminal procedures8, which specify, in a certain amount of detail, the

procedures and remedies that must be available so that right holders can effectively enforce their

rights. Third, under the Agreement disputes between WTO member nations regarding the

respectful of the TRIPS obligations are subject to the WTO's controversy settlement procedures.

TRIPS Agreement

The three important features of the Agreement, it means standards, floatation and the dispute

settlement are covered in seven parts it means the Agreement consists of the seven parts.9 Part I

deal with the usual provisions and basic principles. Part II describes the standards regarding the

availability, and scope and use of IPR with respect to different types of IP. And the Part III

describes the IPR floatation obligations of member nations, and Part IV addresses the provisions

for acquiring and maintaining IPR. Part V is operated specifically to dispute settlement under this

Agreement. Part VI concerns transitional arrangements, and the Part VII concerns different

institutional the arrangements.

Basic Principles

Part I of the Agreement deals with the usual provisions and the basic principles. Parts I of the

Agreement have been eight Articles out of which Articles 3 and 4 form the basic fundamentals of

the Agreement. Article 4 deals together Most-Favored-Nation Treatment. Under the provision of

this article, with regard to the protection of intellectual property rights, any advantage, favor,

privilege or immunity granted by a member nation to the nationals of any other country shall be

6 WTODisputeResolutionandCrossRetaliationunderTrips: IsitSanctionedPiracyofIntellectualProperty? –

ACaseStudyoftheUS - Gambling (Antigua) Case, Volume- 3, Issue – 1, Availableat:

http://www.westminsterlawreview.org/Volume3/Issue1/wlr16.php (Visitedon20/07/2015) 7 DeepaGoel, ShominiParashar ―IPR, BiosafetyandBioethics‖, pp. 34, (PearsonEducationIndia), Availableat:

https://books.google.co.in/books?isbn=9332514240 (Visitedon20/07/2015) 8 M.K. Sateesh, ―BioethicsandBiosafety‖, pp. 338, 2010, Availableat:

https://books.google.co.in/books?isbn=8190675702 (Visitedon20/07/2015) 9 UruguayRoundAgreement: TRIPSTrade-RelatedAspectsofIntellectualPropertyRights, Availableat:

http://www.wipo.int/treaties/en/text.jsp?file_id=305907 (Visitedon21/07/2015)

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accorded immediately and unconditionally to the nationals of all other member nations, except

for a few exceptions mentioned in this article.10

Part II of the agreement consists of 22 articles which deal with each of the areas of intellectual

property covered by the Agreement with respect to the main elements of protection, such as, the

subject-matter to be protected, the rights to be conferred and permissible exceptions to those

rights, and the minimum duration of protection.11

Part III of the Agreement on the Enforcement of IPR sets out the obligations of the member

nations to establish administrative and judicial mechanisms through which IPR holders can seek

effective protection of their interests.12

The common obligation of member nations to provide

floatation mechanisms requires that enforcement procedures should be available under their

national law so as to permit effective action against any act of infringement of IPR covered by the

Agreement, including expeditious remedies to prevent infringements and remedies which

constitute a deterrent to further infringements.

Member nations are obligated to ascertain that enforcement procedures are ―fair and equitable‖,

and ―not unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted

delays‖ regarding the civil administrative procedures and remedies, and Agreement endue for the

equal rights for both the respondent and complaining parties. The rules of the compromise

provide that both parties should have the occasion to present and contest evidence, and that

adequate remedial measures should be available. The Agreement permits member nations to

exclude the grant of injunctions in situation involving compulsory licenses and other uses.

The Agreement obligates member nations to make provision for the ordering of expedite and

effective provisional measures to prevent entry of ignore goods into channels of commerce and

preserve evidence against such infringing goods and their traders.13

This means that the

intellectual property right holder should be entitled to seek a prompt action against the

infringement, whether or not the party alleged to be acting in an infringing manner can be

notified and given opportunity to be heard.

Maintenance of intellectual property rights (IPR)

Part IV of the Agreement deals with acquisition and maintenance of intellectual property rights.14

It provides that member nations are obligated to apply reasonable procedures and formalities in

connection with the grant or maintenance of IPR, which registrations will be undertaken within a

reasonable period of time, and that service mark registrations will be subjected to the same basic

Paris Convention procedures as trademark registrations. The procedures by which intellectual

property right IPR are granted or denied are of great interest to applicants, those opposing

10

PartI — GeneralProvisionsandBasicPrinciples, Availableat:

https://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm (Visitedon28/09/2015) 11

WTO, Trade-RelatedAspectsofIntellectualPropertyRights, pp. 4, 2008, Availableat:

https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/8_bgd_trips_89_e.pdf (Visitedon28/09/2015) 12

Overview: theTRIPSAgreement,Available at:

http://www.wto/english_etrips_e/intel2.e.htm (Visitedon28/09/2015) 13

AgreementEstablishingTheWorldTradeOrganization, Availableat:

http://www.wto.org/english/docs_e/legal_e/04-wto.doc (Visitedon28/09/2015) 14

PartI — GeneralProvisionsandBasicPrinciples, Availableat:

https://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm (Visitedon28/09/2015)

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applications and the population that uses the subject matter of such IPR. The Agreement endows

limited guidance in this area.

Dispute Settlement and Prevention

Part V of the agreement deals with controversy settlement and prevention.15

Article 63

establishments the transparency requirements. Under these requirements there is an obligation on

the part of member nations to unfold or otherwise make available legitimate texts such as laws

and judicial decisions. As regards the wines, TRIPS provisions arrange for additionally protecting

for every GI for wines in the instance of the homonymous signs and founding of a

multidimensional registering for GIs for the wine products. Specified the marketable purposes,

legal protection of GI accepts huge implication. Devoid of an appropriate legal protection, the

competitors not having any valid rights on the GIs may ride free on its repute. Such

discriminating business applies consequence in the damage of revenue for the great right-holders

of the GI and as well misinforms customers. 16

Article 64 deals with the controversy settlements. The Articles XXII and XXIII of GATT 1994 as

described and applied by the controversy Settlement accommodation (WTO‘s procedure for

resolving the trade quarrels) also applies to consultations and the settlement of disputes under the

Agreement except as otherwise specifically provided. Article XXIII of the GATT 1994 provides

for three types of reason of action (a set of facts sufficient to justify a right to sue) in GATT

controversy settlement: ―violation‖, ―non-violation‖ and ―situation‖.

Transitional Arrangements

Under the transitional arrangements of the Agreement, and the member nations were allowed

some Epidemic period to make the national laws compliant with the Agreement.17

The

developing and least developed countries were given an extra period as compared to developed

nations. Developing countries were granted a grace period of five years (it means up till 2000) to

make a national laws compliant with TRIPS. An additional grace period of five years (it means

up till 2005) was given to the developing countries to acquaint product patent protection in those

fields of technology in which there were no provisions for product patent protection.

Institutional Arrangements

The Council for TRIPS monitors execution of those Agreements.18

To also the council for

TRIPS monitors member nations‘ and compliance with the obligations expected under the

Agreement. The council for TRIPS affords member nations the chance of consulting on matters

related to TRIPS. It also carries out other responsibilities entrusted to it by the member nations,

and provides any maintainer requested by them in the context of dispute settlement procedures.

15

ArvindPanagariya, ―CoreWTOAgreements: TradeinGoodsandServicesandIntellectualProperty‖, pp. 46,

Availableat: www.columbia.edu/~ap2231/Policy%20Papers/wto-overview.doc (Visitedon28/09/2015) 16

ArunimaSingh, ―TowardsTheTRIPSAgreement‖, Feb14, 2015, Availableat:

http://www.lawctopus.com/academike/trips-agreement/ (Visitedon28/09/2015) 17

PartI — GeneralProvisionsandBasicPrinciples, Availableat:

https://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm (Visitedon28/09/2015) 18

AgreementOnTrade-RelatedAspectsOfIntellectualPropertyRights, Availableat:

https://www.wto.org/english/docs_e/legal_e/27-trips.doc (Visitedon28/09/2015)

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TRIPS Agreement and India

The India became a party to the TRIPS Agreement in since April 1995. The Agreement changed

the face of the intellectual property regime in the world. Many developing countries, including

India, which had weaker IPR systems (for example, patents) had to extensively revise their patent

laws, or where there were no intellectual property right regimes (the most important examples

being plant variety protection, layout designs and geographical indications) had to put in place

new IPR systems.

The implication of the Agreement has pros and cons. On the positive side, with the amendment of

patent laws, and a stronger patent protection system came into being which is of international

standards, because of which the foreign investors were encouraged to invest in India. It may be

required that while domestic investment may not reaction to a stronger patent regime in a big way

in either the short or long term, Foreign Direct Investment (FDI) might.

ADDITIONAL PROTECTION FOR WINES AND SPIRITS

Article 12 of the TRIPS Agreement provides for the more absolute form of protection in relation

to GIs for wines and spirits.19

According to Article 23.1, interested parties must have the legal

means to prevent the uses of a geographical indication identifying the wines for wines not

origination in the place indicated by the geographical indication. Protection must also be

available against the registration of a trademark for wines, which contains geographical

indication identifying wines, if the wines do not have the origin indicated by the geographical

indication. Similar protection must be given to the geographical indication identifying spirits.

In respect of use geographical indications for other products and the common standards of

protection under Article 22 apply.

In the case of the homonymous geographical indication (that is, different geographical indication

which consist of or contain the same identifier)20

, the protection must be accorded to each

homonymous indication. The Agreement implants a specific rule about homonymous GIs for

wines.

Exceptions Balanced by Provisions for Future Negotiations Aimed at Increasing Protection

Article 24 contains a numbers of the exceptions regarding the protection of geographical

indications.21

However, it is also contains the provisions concerning the negotiations aimed at

increasing the protection of geographical indications and which WTO Member are not allowed to

refuse into or conclude on the basis of the existing exceptions applied in accordance with Article

24.

19

SureshCSrivastava, ―GeographicalIndicationsunderTRIPSAgreementandLegalFrameworkinIndia: PartI‖,

JournalofIntellectualPropertyRights, Vol. 9, pp. 9-23, January2004 20

MatthijsGeuze, ―TheProvisionsonGeographicalIndicationsintheTRIPSAgreement‖,

EsteyjournalsVolume10Number1, 2009 21

M. K. Sateesh, ―BioethicsandBiosafety‖, pp. 344, 2010, Availableat:

https://books.google.co.in/books?isbn=8190675702 (Visitedon06/08/2015)

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There are three main exceptions that are of the special relevance in respect of the additional

protection of geographical indications for wines and spirits. The first main exception provides a

Member State is not obliged to protect a geographical indication in cases where a geographical

indication has become the generic name in a country for the products in question or for a grape

variety.

Enforcement of intellectual property rights under the Trips agreement

The TRIPS Agreement‘s provisionson enforcement are contained in Part III, which is divided

into five Sections.22

The first Section lays down usual obligations that all origination procedures

must meet. There are notably aimed at ensuring their ascendency and that few basic principles of

because process is met.

The Agreement makes a primitive between infringing activity in general respect of which civil

judicial procedures and remedies must be available and counterfeiting and piracy, the more

blatant and egregious from of infringing activity in respect of which additional procedures and

remedies also be provided namely border measures and criminal procedures.

Protection of Geographical Indications under Section 3 of Part II of the TRIPS Agreement

The Agreement defines geographical indication in Article 22.1 as indications which identity a

good as origination in the territory of a member, or a region or locality in same territory, where a

given quality, reputation or the other characteristic of the goods is essentially attributable to its

geographical origin.23

Thus, this definition specifies that the quality, reputation or the other

characteristics of a good can be sufficient base for the eligibility as a geographical indication,

where they are essentially attributable to the geographical origin of the good.

General Standards of Protection

Indian acts are effective in handling protection of GI. However, this sort of protection under

national laws turns out to be challenging, in the case Article 22 of TRIPS Agreement fails to

arrange for adequate intellectual property protection for the value of the sincere right-holders of a

GI. For case illustration, a producer not belonging to the geographical region specified by a GI

might utilize the sign as long as the product‘s real origin is designated on the label, in that way

free-riding on its goodwill and reputation.

Rural development as tool potential

Protecting GIs is as well justified from the perspective of economic factors, and the empirical

evidences of European policies and regulations, give added focus on the GI potential for the

purpose of advancing livelihoods in rural areas on the basis of local resources and therefore the

mission of rural development is accomplished, as sign of welfare state. Globally the communities

in the rural parts of the world have developed typically products oriented interface amid local

22

UruguayRoundAgreement, ―PartIII — EnforcementofIntellectualPropertyRights‖, Availableat:

https://www.wto.org/english/docs_e/legal_e/27-trips_05_e.htm (Visitedon21/07/2015) 23

UruguayRoundAgreement, ―PartII — Standardsconcerningtheavailability,

scopeanduseofIntellectualPropertyRights‖, Availableat: https://www.wto.org/english/docs_e/legal_e/27-

trips_04b_e.htm (Visitedon21/07/2015)

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knowledge and explicit environment situations in the forms of soil and climate. Nevertheless, the

market fails to give assurance so far as the value adding to the time-honored products are

concerned and whilst it adds value but the issue remain unresolved as regards accruing the

producers.24

To producers can enter niche markets and try to extract a premium thereby contributing to

improving their living conditions through increase incomes. Furthercome, the link between the

origin labeled product and its territory derives not only from the pseudo-climatic specificities and

its strong link with localized specific production assets; it also drives form the local culture as it

characterize the ―historical memory‖ of the local population and represents a catalyst of identity

As such, the geographical indications draw from the both natural and human resources located

within the territory, thereby stimulating all the components of the rural economy.

In assessing the impact of origin-labeled products on rural development/rural25

village, a

multifunctional influence should be followed, accounting also for ―secondary‖ development

objectives such as the preservation of biodiversity and traditional knowledge. As such, the

assessment of the development impact should not be limited for the standard criteria (the higher

prices, increased sales and employment and the income levels). Instead the distribution of rents

within the rural area, the level of participation of local actors, the sustainability and reproduction

of the social system and environment impact are all factors which should be considered.26

Of particular concern in developing county context is the hazard of large agribusiness capturing

the rents embedded in geographical indication without any benefits and flowing to smaller, rural

actors who are often the original custodians of the local resource Policies around geographical

indications should, therefore, provide for the potentially exclusionary effects flowing from GI

protection27

.

As per definition, Origin labeled products reflects a strict link between product28

and origin given

that the product derives its unique characteristics from the climatic, human and technical

environment of the region29

. As such, origin labeled products is one of the most evident

manifestations of locality and is often considered useable instruments through which to preserve

the local culture and traditions and to support rural development especially in disadvantaged

areas.

24

Tregear, A., F. Arfini, G. BellettiandA. Marescotti, ‗RegionalFoodsandRuralDevelopment:

TheRoleofProductQualification‘, JournalofRuralStudies, Vol. 213, Issue1, pp. 12-22, (2007).

25

Originlabeling, Article26 (5) ofRegulation (EU) No1169/2011, Availableat:

http://ec.europa.eu/agriculture/milk/origin-labelling/index_en.htm (Modifiedon21/05/2015) 26

LauraGerman, GeorgeC. Schoneveld, andPabloPacheco,

―TheSocialandEnvironmentalImpactsofBiofuelFeedstockCultivation: EvidencefromMulti-

SiteResearchintheForestFrontier‖ (E&S, Vol – 16, Art. 24 , 2011) 27

RoshniChaddaandNehaJain, ―AnalysisOfTheGIProtectionMechanismInIndia‖ (2011) 28

CountryofOriginLabellingforFoodProducts, Canada, Availableat:

http://www.inspection.gc.ca/food/information-for-consumers/fact-sheets/country-of-

origin/eng/1329519448771/1329519600512 (Modifiedon29/04/2014) 29

AlexandraLillandSarahGräber, ―Human-EnvironmentalInteractions‖, (EcologyCentreKiel –

Master‘sProgramme EnvironmentalManagement,2006)

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The second impact on rural development relates to an inclusive territorial benefit to all actors

within the region. The latter refers to the indirect benefits which may flow from establishing a

geographical indication for the certain regional products as reflected in for example, the

employment levels and income support. Furthermore, the geographical indications may

contribute to the local economy by maintaining the economic and social activities in

underprivileged areas, thereby stabilizing the activities it promotes30

.

CURRENT DEVELOPMENTS

A. WTO DISPUTE SETTLEMENT

Article 64 deals with the controversy settlements.31

The Articles XXII and XXIII of GATT1994

as described and applied by the controversy Settlement accommodation (WTO‘s procedure for

resolving the trade quarrels) also applies to consultations and the settlement of disputes under the

Agreement except as otherwise specifically provided.32

Article XXIII of the GATT 1994

provides for three types of reason of action (a set of facts sufficient to justify a right to sue) in

GATT controversy settlement: ―violation‖, ―non-violation‖ and ―situation‖.

Dispute settlement is the central pillar of multilateral trading system, and the WTO‘s unique

contribution to the stability of global economy. Settling disputes is the responsibility of Dispute

Settlement Body (the General Council in another guise), which consists of all the WTO members.

The Dispute Settlement Body has the sole authority to establish ―panels‖ of the experts to

consider the case, and to accept or reject the panels‘ findings or the results of an appeal. It

monitors the implementation of the rulings and recommendations, and has the power to authorize

the retaliation when a country does not comply with a ruling.

Without a means of the settling disputes, the rules-based system would be less effective because

the rules could not be enforced. The WTO‘s procedure underscores the rules of law, and it makes

the trading systems more secure and predictable. The system is based on the clearly-defined rules,

with timetables for completing a case. First rulings are made by a panel and endorsed (or

rejected) by WTO‘s full membership. Appeals based on the points of law are possible.

However, the point is not to pass the judgments. The priority is to settle the disputes, through

consultations if possible. By January 2008, only around 136 of the nearly 369 cases had reached

the full panel process. Most of the rest have either been notified as the settled ―out of court‖ or

remain in a prolonged consultation phase — some since 1995.

A dispute arises when one country adopts a trade policy measure or takes some action that one or

more fellow – the WTO members considers to be breaking the agreements, or to be a failure to

live up to the obligations. A third group of the countries can declare that they have an interest in

the case and enjoy some rights.

30

Socialandeconomicempowerment (2011), Availableat: http://www.gsdrc.org/go/topic-

guides/empowerment-and-accountability/social-and-economic-empowerment (Visitedon06/06/2015) 31

RobertHowse, ―TheWorldTradingSystem: Disputesettlementintheworldtradingsystem‖, pp. 316, 1998,

Availableat: https://books.google.co.in/books?isbn=0415123666 (Visitedon29/09/2015) 32

PoonamSaini, ―ProjectReportonWTO‖, April18, 2015, Availableat: http://docslide.us/documents/project-

report-on-wto.html (Visitedon29/09/2015)

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A procedure for the settling disputes existed under the old GATT, but it had no fixed timetables,

rulings were easier to block, and many cases dragged on for a long time inconclusively. The

Uruguay Round agreement introduced a more structured process with more clearly defined stages

in procedure.33

It introduced a greater discipline for the length of time a case should take to be

settled, with flexible deadlines set in various stages of the procedure. The agreement emphasizes

that the prompt settlement is essential if the WTO is to function effectively.34

It sets out in the

considerable detail the procedures and the timetable to be followed in resolving disputes. If a case

runs its full course to the first ruling, it should not normally take more than about a year – 15

months if the case is appealed. The agreed time limits are flexible, and if the case is considered in

urgent (e.g. if the perishable goods are involved), it is accelerated as much as possible.

The Uruguay Round agreement also made it impossible for that country losing a case to block the

adoption of the ruling.35

Under the previous GATT procedure, the rulings could only be adopted

by the consensus, meaning that a single objection could block the ruling. Now, the rulings are

automatically adopted unless there is a consensus to reject a ruling — any country wanting to

block a ruling has to persuade all other WTO members (including its adversary in the case) to

share its view.

Although much of the procedure does resemble a court or tribunal, then its preferred solution is

for the countries concerned to discuss their problems and settle the dispute by themselves. The

first stage is therefore consultations between the governments concerned, and even when the case

has progressed to the other stages, consultation and mediation are still always possible.

IMPACTS OF TRIPS ON GEOGRAPHICAL INDICATION (10 YEARS)

Geographical indications associate names and places or production areas with products. Scotch,

Tequila, Bordeaux, Roquefort (cheese), Parma (ham) are prime examples of the GIs as high-value

commercial denominations. A whole section (Part II, section 3) of TRIPS Agreement is dedicated

to these Geographical Indications. The GIs are distinctive signs which permit the identification

of the products in market. If they are used in a proper way and well protected, they can become

an effective marketing tool for a great economic value. The GIs make it possible to add value to

the natural riches of a country and to t skills of the population, and they give local products to a

distinguishable identity.36

GIs protection enable the companies in the global agriculture products business to capitalize on

the opportunities in the market through moving away from time-honored commodity markets to

more profitable niche markets putting into application differentiation. Tag of location is worthily

33

UnderstandingtheWTO: SettlingDisputes, Availableat:

https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm (Visitedon29/09/2015) 34

IntroductiontoSurveillanceandtotheDisputeSettlementSystemintheWTO, Availableat:

https://ecampus.wto.org/admin/files/Course_385/Module_1565/ModuleDocuments/DS-L1-R1-E.pdf

(Visitedon29/09/2015) 35

WorkingoftheTRIPS, April7, 2015, Availableat: http://lawfarm.in/working-of-the-trips/

(Visitedon07/08/2015) 36

F. Addor, ―GeographicalIndicationsbeyondWinesandSpirits‖, 2002, Availableat:

https://www.ige.ch/fileadmin/user_upload/Juristische_Infos/e/PDF-doku3.pdf (Visitedon29/09/2015)

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developing into a strategic tool for favoritism in the markets of agriculture products.37

Distinct to

TRIPS, in the GI Act does not confine itself to wines and spirits. Moderately, it has had been left

to the decision of the Government of India to decide which goods or products ought to be

rendered advanced points of protection. This method and system has had consciously been

undertaken by the drafters of the Indian Act with the objective of giving strict protection as

guaranteed under the TRIPS Agreement to GI of Indian origin38

and spirits extended to cover GIs

for all products.

For companies and marketers in global agriculture products markets, the success is not an easy

going. This is because consumers in the market are now more conscious of the measures relating

to protecting of GIs and the starter regulations levied by the TRIPS .Companies are looking back

into the traditional-cultural approach of marketing together with giving assurance of offering high

quality products39

, where a given quality, reputation or other characteristic of the good is

essentially attributable to its geographical origin‖ (Article 22(1)). The main advantage of giving

producers rights to the regional names of their products is that it prevents consumers from being

misled by products having similar names but is in fact imitations.

The Trade Related Property Rights (TRIPS) agreement which seeks to harmonize global

intellectual property (IP) laws have been a main factor in strengthening worldwide property rights

systems. However, since its formulation, the TRIPS agreement have been the subject of valued

controversy and a source of concern among developing nations that feel it favors developed

countries. Particularly, the protections of traditional knowledge have been a cause of discussion

over the granting of property rights to firms for minor alterations of traditional practices or

varieties. GI is one aspect of intellectual property that may afford protection to traditional

knowledge without conferring absolute power to any one individual.

As part of this compromise, the WTO member states agreed in the Article 23 of the TRIPS

Agreement to negotiate the establishment of multilateral system of notification and

registration for wines and spirits.40

Several proposals have been presented over the years on this

subject, and they can be generalized into two main themes of the argument: one theme proposed

by the EU and the other by the United States.

The extension of the level of the GI protection of Article 23 of the TRIPS Agreement to the

products other than wines and spirits is a more delicate issue.41

Distinct to TRIPS, in the GI Act

37

TradeCooperationProgram - IntellectualPropertyRights (TRIPSandGIs), 2013, Availableat:

https://www.eda.admin.ch/content/dam/countries/countries-content/serbia/en/resource_en_229022.pdf

(Visitedon29/9/2015) 38

B. Graham, ―TRIPS: TenYearsLater: CompromiseorConflictoverGeographicalIndications‖, Feb26, 2004,

Availableat: http://jost.syr.edu/wp-content/uploads/trips-ten-years-later-compromise-or-conflict-over-

geograph.pdf (Visitedon29/09/2015) 39

GeographicalIndications, ―TypesofProtection‖ Availableat:

http://www.inta.org/TrademarkBasics/FactSheets/Pages/GeographicalIndicationsFactSheet.aspx

(ModifiedonJune2015) 40

World Intellectual Property Organization,

―SymposiumontheProtectionofGeographicalIndicationsintheWorldwideContext‖, pp.50, 1999, Availableat:

https://books.google.co.in/books?isbn=928050777X (Visitedon29/09/2015) 41

STEFANIAFUSCO, ―GeographicalIndications:

ADiscussionontheTRIPSRegulationAftertheMinisterialConferenceofHongKong‖,

MarquetteIntellectualPropertyLawReview, Volume12, Issue2, 2008

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does not confine itself to wines and spirits. Moderately, it has had been left to the decision of the

Government of India to decide which goods or products ought to be rendered advanced points of

protection. This method and system has had consciously been undertaken by the drafters of the

Indian Act with the objective of giving strict protection as guaranteed under the TRIPS

Agreement to GI of Indian origin. Even though several of WTO members are not obliged to

guarantee Article 23-type protection to all Indian GI, in that way leaving scope for their misuse in

the global pitch. In India, the laws or acts make provision that GI requires to be originally be

registered for a period of ten years, and it may well be transformed on time intervals for further

periods of 10 years.‖42

TRIPS Agreement‘s Article 24(3) plainly declares and specifies that in enacting the TRIPS

provisions as regarding protecting for GIs. In accordance with the provision of this article a

member is not obligatory to lessen the protection of GIs that be real in that member

instantaneously previous to the entry date. This tractability has Had been used by India in the

national laws as implemented by Government of India in keeping the right of action against

passing-off, which has had been a measure of the common law convention of India, even

previous to the initiation of the TRIPS Agreement. 43

TRIPS Impact on Economic and Social Rationale of GIs

Many countries of the world, including India, have achieved self-sufficiency in knowledge

intensive sectors by allowing for a loosely defined intellectual property regime (IPR). The

implementation of the TRIPS worldwide essentially represents a big step in the opposite direction

as it refers to a tightening of national IPR systems. Its impact on the production and innovative

capacity of the developing countries such as India, Sri Lanka, Pakistan etc., in the knowledge

intensive sectors is not at all clear.

The basic economic function of the geographical indications is to protect the goodwill of products

to which they relate. There is no agreed definition of the goodwill, at least in international

trademark law. It could be conveniently defined as ―tendency or likelihood of a consumer to

repurchase the goods or services based on the name or source of goods and services‖44

.

The TRIPS Agreement defines counterfeiting, in a footnote to article 51 in section 4, as follows:

―counterfeit trademark goods shall mean any goods, including packaging, bearing without

authorization a trademark which is identical to the trademark validly registered in respect of these

goods, or which cannot be distinguished in its essential aspects from such trademark, and which

thereby infringes the rights of owner of the trademark in question under the law of the country of

importation‖.

There is, however, an additional economic impact of the geographical indications. By virtue of

their basic function of distinguishing that the goods or services of one enterprise from the same or

42

TRIPSNegotiatingGroupMinutes, MTN.GNG/NG11/9 (Oct. 13, 1988) 43

KrantiMulikandJohnM. Crespi,

―GeographicalIndicationsandTheTradeRelatedIntellectualPropertyRightsAgreement (TRIPS):

ACaseStudyofBasmatiRiceExports‖, Publishedonline (JournalofAgricultural&FoodIndustrialOrganization,

ISSN (Online) 1542-0485, DOI: 10.2202/1542-0485.1336), Volume9, Issue1, May25, 2011 44

WorldIntellectualPropertyOrganization (WIPO),

―Economicimportanceoftrademarksandgeographicalindicationsandtheiruseincommerce‖, 2003

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similar goods or services of the other enterprises, trademarks are the main building block of

market identity.45

GIs serve to protect the intangible assets such as a market differentiation, reputation and quality

standards. They enable the links of a specific product to the territory from which it originates. A

GI is a collective right that is open to all the producers in the region that observe the specified

codes and produce in the demarcated geographical region.46

The ―holders‖ of a GI do not have

the right to assign the indication, which is provided to the holders of trademarks (article 20 of

TRIPS Agreement) and patents (article 28.2, TRIPS Agreement).

Effective protection involves a balance of the interests among consumers, producers and

governments. Consumers have an interest in not being misled by the geographical indications, the

producers have a trade interest in protecting those reputational characteristics of product that are

related to its geographical origin, and governments have an interest in ensuring that international

obligations relating to geographical indications are administered in an efficient and equitable

manner. Opponents of the extended protection for all GIs argue that such conditions would

effectively be protectionism. In addition to the benefit of the economy scale, this could offer their

products new opportunities in a competitive global market.47

The impact of TRIPS on the

consumer welfare will be mixed in terms of availability of the products in the Indian market.

Much will dependent over the clause of compulsory licensing is used.

45

KDas, ―Protectionofgeographicalindications: anoverviewofselectissueswithparticularreferencetoIndia‖,

2007 46

UshaSridharandSridharMandyam, ―OnStructuredBuyer-SellerNegotiationforAgriculturallandAcquisition –

SimulationExperimentswithRule-basedmodelsandUtilityfunctions‖, pp. 70-71, 2009 47

ChaudhuriSudip, 'TRIPsagreementandAmendmentofPatentsActinIndia'. EconomicandPoliticalWeeklyVol.

37, No. 32, 3354-3360, 2002.