Legal Challenges in Global GI Protection: Navigating International Trade Disputes

Abstract

Geographical Indications (GIs) are indispensable to protect products that are linked to a place, but their protection on a global scale is confronted with huge legal challenges. This article discusses the intricacies of GI protection in world trade in light of the TRIPS Agreement, critical controversies, and maintaining a balance of national interests and world trade. It brings out issues such as overlapping claims, enforcement challenges, and the necessity of global harmonized standards, and provides insights into how these controversies could be resolved through legal mechanisms and international coordination.

Introduction

Geographical Indications (GIs) are labels applied to products with a definite geographical origin and qualities or a reputation based on that origin, like Darjeeling tea or Champagne. GIs have to be protected at an international level to preserve cultural heritage and economic interests but easily result in complicated trade conflicts owing to variations in national laws and means of enforcement. This paper examines the international legal framework, prominent controversies, and resolution strategies for the legal issues of international GI protection. Through the exploration of how domestic laws intersect with international obligations, it seeks to gain an integral grasp of how best to handle these controversies, particularly in light of the current global trade environment as of June 30, 2025.

Legal Framework for GI Protection

The primary international legal framework for GI protection is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), part of the World Trade Organization (WTO) agreements. Key provisions include:

• Article 22: Defines GIs and mandates protection against misleading use and unfair competition, requiring WTO members to provide legal means to prevent such misuse.

• Article 23: Affords further protection for GIs for wines and spirits, excluding use even where the actual origin is specified, i.e., "kind" or "style."

• Article 24: Covers international negotiations and exceptions, including the setting up of a multilateral system of GI registration, ongoing under the Doha Development Agenda.

The Doha Round, which began in 2001, is still conducting talks on expanding higher protection to other than wines and spirits and establishing a multilateral register, but agreement has not yet been reached. National legislation differs considerably: the European Union has a strong sui generis system under Regulation 1151/2012, whereas the United States protects GIs under the law of trademarks, resulting in varying levels of protection and common disputes. For example, the EU regime for cross-border GI registration for foodstuffs and beverages is outlined in Regulation 479/2008, but with high enforcement burdens, particularly on Least Developed Countries (LDCs) such as Bangladesh.

Case Studies of International Trade Disputes

Some recent cases demonstrate the obstacles:

• WTO Dispute (2005): Australia and the US complained to the EU's GI system, alleging it discriminated against foreign goods. The WTO Panel concluded the EU system did not accord national treatment, citing enforcement concerns. 

• ECJ Decisions: The European Court of Justice (ECJ) gave Greece sole rights for "feta" in 2005 and decided the Prosciutto di Parma case, with a requirement for cutting and packaging within the demarcated area, demonstrating the EU's rigid stance. 

• Feta Cheese Dispute (Recent): Feta has been safeguarded by the EU as a Protected Designation of Origin (PDO) since October 2002, linked to Greece, but US producers say it's generic and stand to lose $400 million in annual exports to Mexico. This controversy, outlined in a 2018 report, highlights tensions in FTAs.

• India-Bangladesh Dispute: India's GI registration of Bangladeshi GIs such as Jamdani saree and Fazli mangoes risks Bangladesh's interests. Bangladesh's 2013 GI Act seeks to counteract this, but does not provide procedures for shared cross-border GIs, leaving a legal vacuum in South Asia.

Challenges in Global GI Protection

Inadequate Universal Policy: The lack of a harmonized global regime for cross-border GI protection harms LDC trading interests, such as Bangladesh's nascent system.

Enforcement Problems: Administrative fees and enforcement charges are high, particularly for developing nations, with various national practices making protection difficult.

Competing Claims: Conflicts result from competing claims that entail historical and cultural proof, frequently ending up in WTO Dispute Settlement, where private plaintiffs have no standing and must depend upon governments.

Developing Country Challenges: Making GI names economically valuable in countries with few GI-denominated goods is difficult, and the interplay with indigenous knowledge protection adds complexity.

Navigating International Trade Disputes

• WTO Dispute Settlement: The process involves mandatory consultation (at least 60 days), Panel establishment if failed, and potential appeals, with implementation by the Dispute Settlement Body (DSB). For example, BSCIC may challenge Indian GI registrations, with appeals under Section 31 of the Indian GI Act 1999.

• Bilateral and Regional Agreements: FTAs, like the US-Australia 2004 side letter protecting Bourbon and Tennessee whisky, offer tailored solutions. 

• Protection Strategies: Governments and companies may employ historical facts, cultural understandings, and arbitration to settle differences, with special attention to avoiding ambiguity in agreements to reduce miscommunications.

Way Forward

• Harmonization: One common world GI protection system may help minimize conflicts, possibly through a multilateral register under TRIPS.

• Capacity Building: LDC assistance with GI registration and enforcement, e.g., training and funding, is essential.

• Multilateral Register: Negotiations pursuant to Article 23.4 continue to seek an arrangement for notification and registration of GIs, increasing protection and transparency.

Conclusion

International GI protection is crucial for economic and cultural conservation but is encumbered by legal obstacles from variations in national laws and enforcement. Trade conflicts, such as the feta conflict, emphasize the call for harmonized norms and efficient conflict resolution. With WTO mechanisms, bilateral arrangements, and capacity building, stakeholders can overcome these obstacles, facilitating GIs to support international commerce while upholding national interests.

References 

1. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994, Arts. 22–24.

2. WTO Panel Report, EC – Trademarks and GIs (DS174 & DS290), 2005.

3. Regulation (EU) No 1151/2012 on Quality Schemes.

4. Geographical Indications of Goods (Registration and Protection) Act, 1999 (India).

5. Geographical Indications (Registration and Protection) Act, 2013 (Bangladesh).

6. Case C-465/02, Commission v. Germany (Feta Cheese Case), ECJ (2005).

7. Dev Gangjee, Relocating the Law of Geographical Indications, Cambridge University Press.

8. WIPO, “Geographical Indications,” https://www.wipo.int/geo_indications/en/

DISCLAIMER- This article has been submitted by Priyanshu Dadhich, trainee under the LLL Legal Training Program. The views and opinions expressed in this piece are solely those of the author.