Geographical Indications
Marks indicating the geographical origins of goods were the earliest types of trademark1. Prior to the Industrial Revolution in Britain, which commenced in the eighteenth century, industrial production was on a small scale. The corporate form of industrial organization did not yet exist. For this reason, it was unnecessary for the law to develop the notion of protectable goodwill. Until this time, the principal products, which entered international trade, were primary products, such as minerals and agricultural produce and simple manufactured goods, such as pottery and woven fabrics. In the competition to earn revenues from the international trade, which was developing at that time, it became apparent that the products of particular regions were more saleable than comparable products from other regions, because of their superior quality. This superior quality, resulted either from natural geographic advantages, such as climate and geology (eg Seville oranges, Kentish hops, Burgundy wine); recipes and food processing techniques, local to a region (eg Kyoto bean cakes, Malmesbury mead, Frankfurter sausages) or indigenous manufacturing skills (eg Toledo steel, Delft ceramic ware, Korean celadon ware).
To take advantage of the commercial attractiveness of these local reputations, merchants branded their goods with marks which designated the place of origin of these products. These brands utilized depictions of local animals (panda beer), landmarks (Mt Fuji sake), buildings (Pisa silk), heraldic signs (fleur de lys butter) or well known local personalities (Napoleon brandy, Mozart chocolates). These brands were tantamount to a warranty of the quality of these goods. To protect the commercial reputation of these goods, local legislators passed laws to prevent the adulteration of local produce by the addition of inferior introduced goods or ingredients. These laws punished the adulteration of goods and established systems of marking approved local goods with marks certifying their quality (eg wool marks for cloth, hallmarks, for goods made from precious metals) Where the reputation of local goods were attributable to the skills and technology of local artisans, associations, or guilds, of masterworkers grew up. The taxing authorities saw an advantage in preserving the skills and revenue earning capacities of these guilds and conferred upon them a monopoly of manufacture. To regulate this monopoly, the guilds developed service marks, or heraldic-type designs which were placed upon goods produced by guild members. The legislation which sought to protect the commercial reputation of traders in discrete goegraphical localities evolved principally in Europe into systems for the protection of geographical indications. As will be seen below, these systems permit products emanating from the region to carry the geographic indication. Producer representatives from those regions police the use of geographic indications.
The Industrial Revolution, which commenced in Britain in the eighteenth century, saw the emergence of the modern trademark. The development of large scale industrial production led to the desire of individual producers to identify themselves as the place of origin of goods, as a warrant for the quality of those goods. The registered trademarks system was thus developed to permit individual traders to enforce their marks as a private proprietary rights. This contrasted with the system for the protection of geographic indications which conferred public rights upon producers in defined localities.
The evolution of the private trademark system did not result in the disappearance of geographic marks. Particularly in Europe, substantial processed foods markets and markets for alcoholic beverages are dependent upon the continued recognition of geographical marks. Indeed, for European negotiators, the inclusion of these marks in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) was a significant achievement of the Uruguay Round of the GATT.
This paper describes the protection of geographical marks under national and international law, with particular attention to the scheme of protection for such marks under the WTO TRIPS Agreement and under European law.