Thailand Law Journal 2012 Fall Issue 1 Volume 15

A. Why the Challenge to International Improvement of GIs Protection is Desirable?

As discussed before that the development of GI protection in the international level is significantly important, especially for the developing countries, including the increase of the GI product values,²³ (for example the premium price that the consumers are willing to pay for the unique quality)²⁴ and reputations and the promotion of product quality. All of these benefits can create the trade opportunities and, more importantly, leads to sustainable development to the country of the product’s origin.

In terms of consumers, recently, the consumers are paying more attention to the GI on the products.²⁵ The improvement of GI will benefit to the consumer on ensuring that quality of the product identified by the GI is reliable.

To achieve the benefits discussed above, the international protection of GI should be developed as follow:

1 Challenge to insufficient protection under the general level
It is argued that the protections of GI under TRIPs agreement is insufficient due to the double standard of the protection.²⁶ Article 23 favors to the states produces wine and spirit where majority of the producers are in the developed countries such as the countries in EU. The challenges how the GI products could be protected at the same level as the protections of wine and spirit leads to the current debate in WTO. The negotiation is the endeavor to expand the additional protection under article 23 to all GI products.

The protection under article 22 creates the difficulties to the interested state to provide that the requirement of unfair competition or public misled is met. While the protection under article 23, provides the protection to wine and spirit, does not require such those conditions. The consequence of problematic proof, required by article 22, reflects disadvantages on the developing countries. Since the developing countries could not prove to satisfy the conditions in article 22, their GI products are left unprotected. In many case, the GI were use in generic terms,²⁷ and will never granted the protection.²⁸

Another different standard is the protection under article 23 prohibits the use of the words such as ‘ style’ and so on whole the protection under article 22 does not limit the use of these words. Examine the example of country A and country B above, the product from country B label country A style product, perhaps just for avoiding the public misled, then the indication of ‘country A’ on the product of country B is allow. The product of country A will not be protect from the use of GI name on country B product unless country A can prove that it is an unfair competition. In the case where the cost of proof is high and the country A cannot afford to prove the requirement, the product from country A will not be protected. This is one of the weak points in article 22 of TRIPs.

2 Challenge to the diversity of GI protection
Another issue on making the GI protection become more effective is to develop the systematic of such the protection. Currently, the protection of GI products under TRIPs agreement is not harmonious. The mandate of the protection under TRIPs leaves the protection in each state to design its own national protection. The result of such the regime is the diversity of the protection scheme. One product is protected differently throughout the member states. To ensure that the protection will be treated firmly and equally to all GI products, the system of protection should be harmonized. The diversity of GI protection is significant and causes problems to the producers applying the diversity regime to their products.

First, The producer, particularly, in developing countries find difficulty to be granted the protection in every member states. One of the most common reasons that the cost of registration. To cover the protection on their GI in all states, it costs highly. Most of the developing countries cannot afford the protection in every states that they export their products to²⁹. The situation is getting worse when the market become globalised, it means the producers of GI products have to pay more to protect their GI. Further, the wider market means the higher risk of infringement. Since they have no ability to pay for the register cost in every countries, their products could not be protect and GI means nothing to their product value. Second, the concept of GI protection as well as the level of protection in each states is different. One GI product may get the higher protection in one state while getting the general protection in another state. For example, in Thailand, the Thai Silk is protected in the same level as wine and spirit under national scheme. Consequently, in order to know the certain protection in every imported countries is confusing. Hence, the protection of GI should be in the same scheme. Lastly, the GI protection in the international level needs to be developed. The answers to the question how to ensure that the GI protection will be more effective and maximize the benefit to the producers of GI products will be discussed in Part IV.

B. Current Debates in WTO/TRIPS Negotiations
The challenges discuss above, including the double standard of GI protection under the TRIPs Agreement and the attempt to use the multilateral registration system, and are also in the attention of the WTO member states. The proposal submitted by the European Commission, under paragraph 18 of  the Doha Declaration, to the General Council of TRIPs required the amendment of Section 3 of TRIPs Agreement in order to extend the protection under article 23 to the other GI products rather than wine and spirit. This proposal reflects the weak point of double standard of the protection between article 22 and 23. The extension of article 23 to other products would abolish the two levels of such the protection. Further, the proposal suggested that the multilateral notification and registration should be included in the TRIPs Agreement³⁰. The supported countries are mainly the developing countries³¹.  However, The debate is still pending and the outcome has not yet been concluded.

IV. The Possible Resolution to the GI Protection