Geographical Indications and the Scramble for Africa
| DOI | 10.3366/ajicl.2017.0190 |
| Pages | 199-220 |
| Published date | 01 May 2017 |
| Date | 01 May 2017 |
The ‘Scramble for Africa’ at the end of the nineteenth and beginning of the twentieth centuries involved the European world powers of the time colonising African territories to secure resources as a means of pursuing their international rivalries. At the beginning of the twenty-first century the world's intellectual property powers have again turned to Africa to enlist support for their global intellectual property conflicts.
The Uruguay Round of the General Agreement on Tariffs and Trade (GATT) had culminated in 1994 with the formation of the World Trade Organisation. On the initiative of the USA an instrument securing the enforcement of intellectual property rights had been accepted as a negotiating objective at the commencement of the Uruguay Round in 1986.
The European concern to protect ‘indications of source or appellations of origin’ dated back to the first international intellectual property agreement: the 1883 Paris Convention on Industrial Property. This was supplemented a few years later by the Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods 1891 (enacted as a special treaty under the Paris Convention). These agreements were driven principally by the lobbyists from the wine industries of France, Spain and Portugal.
A more comprehensive stratagem introduced in the Lisbon Agreement on the Protection of Appellations of Origin and their International Registration 1958 was the establishment of an international system for the registration and protection of appellations of origin. This Agreement, which is administered by the World Intellectual Property Organisation (WIPO), did not attract much support, with only 15 signatories in its first 20 years and only 28 signatories by September 2013. An examination of all current appellations on the Lisbon register disclose that 11 countries hold 97.5 per cent of all registrations and with the top three holding over 78 per cent, of which France holds 62.5 per cent (almost 90 per cent of which were for wines and spirits).
The TRIPS Agreement, which managed to secure the support of most countries of the world,
the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;
any use which constitutes an act of unfair competition within the meaning of Article 10
However, in addition to the general protection contained in Article 22, additional protection is accorded to geographical indications for wines and spirits by Article 23. Article 23.4 provided that ‘in order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.’
This article examines the role of African countries in the TRIPS Council debates concerning the establishment of a system for the registration of geographical indications and the extension of the protection for wines and spirits to agricultural products. It notes the conflict between ‘Old World’ and ‘New World’ countries over the forms which geographical indications protection should take and the attempt of the European countries to enlist African support for the European conception of
The privileging of the position of wines reflecting the European contribution to the TRIPS negotiations was probably offensive to those countries in which the consumption of alcohol is forbidden. In 1999, prior to the Seattle WTO Ministerial, Turkey proposed the extension of the multilateral register beyond wines and spirits.
Considering that Ministers made no distinction between the two above-mentioned products, the African Group is of the view that the negotiations envisaged under Article 23.4 should be extended to other categories, and requests, in this regard, that the scope of the system of notification and registration be expanded to other products recognizable by their geographical origins (handicrafts, agro-food products).
At the TRIPS Council meetings in 2000 misgivings were expressed by some delegations about the extension of Article 23.1 protection and the multilateral register beyond wines and spirits. In the meeting of the TRIPS Council held on 26–29 June 2000 the representative of Kenya said that: ‘It was difficult to explain to people in the developing world that their representatives were involved in negotiations in the WTO concerning additional protection for wines and spirits without any benefit being offered to developing countries.’In October 2001 the delegations of Bulgaria, the Czech Republic, Egypt, Iceland, India, Kenya, Liechtenstein, Pakistan, Slovenia, Sri Lanka, Switzerland and Turkey submitted that the extension of geographical indications to products other than wines and spirits be formally included as an extension of the negotiating agenda.
The debates in the TRIPS Council, for which African support has been sought, have addressed two matters: the legal effect of the multilateral register and the range of products to which the multilateral register should apply. In relation to the scope of the proposed register, it was questioned how wines and spirits received the additional protection of Article 23 of TRIPS whereas all other products received only the general protection of Article 22. At the TRIPS Council meeting of 21 and 22 September 2000, Egypt, Kenya and Pakistan requested their delegations to be reflected as co-sponsors, as well.
The relevant TRIPS provisions are the result of trade-offs which were specific to the circumstances prevailing at the time of the Uruguay Round negotiations, in particular during the Brussels Ministerial Conference (1990). This was, to some extent, due to the link at that time between the negotiations on geographical indications and the negotiations on agriculture.
There is no systematic or logical explanation for the distinction made in Section 3 of Part II of the TRIPS Agreement. This distinction ignores that geographical indications for categories of goods other than wines and spirits are equally important for trade. The economic and political significance of geographical indications is growing as increasing quality awareness and higher quality requirements promote the demand for products of a specific geographical origin. The added value to exported goods increases the chances for such legitimate goods to reach the market which is part of the global vision for a multilateral trading system. That is why, since the end of the Uruguay Round, the awareness of the need for an extension of additional protection to products other than wines and spirits has continuously increased and spread among Members.
At the TRIPS Council meetings of 27 to 30 November and 6 December 2000 the representative of Mauritius said that extending the scope of...
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