‘Geographical Indications’ (GIs) under the Trade-Related Aspects of Intellectual Property Rights (hereafter TRIPS) has been the subject of vigorous scholarly debate across the world in the last decade. The TRIPS is the first multilateral text providing for a comprehensive protection of GIs. It provides for (a) a base-level protection for geographic indications related to all products; (b) an additional protection for wines and spirits; and (c) an extra-additional protection only for wines. The ‘extra-additional’ protection accorded to wines has generated significant controversy and discussion. The TRIPS mandates the need to accord protection for each GI for wines in the case of homonymous indications and the establishment of a multilateral system of notification and registration of GIs for wines eligible for protection in the jurisdictions of those WTO members participating in the system. However, this mandate has not been brought into effect even though it has been a decade since the first discussions on this issue at the Fourth WTO Ministerial Meeting in Doha in November 2001. The lack of consensus of WTO members on this issue in 2001, and at the subsequent meetings in 2003 and 2005 are for once not attributable to the tussle between the so-called ‘old world countries’ and the ‘new world countries’ headed by the European Union and the United States respectively. While the old world/new world tussle was responsible nonetheless for the creation of a hierarchical system of GI protection in the first instance, the reason for the current deadlock is that on the one hand, some Asian, European and African countries are seeking to extend the extra-additional protection to include other products which can help to promote the export of valuable products and prevent misappropriation. On the other hand, countries like United States, Australia, Philippines, Japan and New Zealand are of the view that according higher protection to all GI products will lead to increased administrative costs as well as potentially hinder imports.
It is in this context that this paper attempts to understand the legal framework of GIs under the TRIPS from the lens of the Association of South East Asian Nations (ASEAN) and review the divergent positions leading to the deadlock. The purpose of this discussion is to ascertain whether or not it is possible for ASEAN countries, to take a position with either camp.
* Malobika Banerji