Thailand Law Journal 2012 Fall Issue 1 Volume 15

A. The Resolution to the Challenge of Insufficient Protection under General Protection
The protection under article 22 is considered to be insufficient due to the conditions of proving that the public is misled and the scheme unfair competition. The issue is more controversial when wine and spirit is protect under GI regime without burden of such the proof. Further, the effective protection under the scheme of prohibition from using GI including other related words such as ‘style’ or ‘type’ is limitedly provide to wine and spirit while other product is not protect the use of GI in such the case.

The resolution to make the GI protection more effective in the international level, therefore, is to protect all product in the same level. To this extend, the protection under article 23 should be extended to all product. Then, all product will be protected regardless to the public or unfair competition. Moreover, the use of GI on the product originated from place other than the GI indicated will be prohibit to all product even the true origin is indicated. The protection also includes the prohibition of using GI in translation or accompanied by the term such as ‘kind’, ‘type’, ‘style’ or ‘imitation’.

When all products is protected in the same level as wine and spirit, the producer, especially in the developing country will enjoy the protection without difficulties such as costs to prove public misled or unfair competition, and leads to the capacity to compete in the international market. In short, the answer to the question how to make the protection GI sufficient to all product is to provide the protection to all product in the same level as wine and spirit.

B. The Resolution to the Challenge on Diversity of GI Protection

V. Addressing Concerns

As discuss above, TRIPs agreement is the significant international tools to protect the GI product in the globalization regime. One of the most important reasons is that, the enforcement and the dispute settlement of TRIPs is reliable and sufficient. TRIPs agreement provides the sanction, including civil and administration as well as the penalty, to the members who breach the agreement. Further, with a large number of member states, it is ensured that the protection will cover widely enough. Hence, the endeavor to highlight the resolution in the future development of GI protection will be possible through the legal framework provided by TRIPs agreement. With this viewpoint, the negotiation on substance including the extension of the protection of article 23 to other GI products should be set out instantly. Further, the systemic term such as the multilateral register system should be add to the TRIPs agreement for the same.

A. The Amendment of Article 23 of the TRIPS Agreement 
As discussed in the previous sections, extending the GI protection under Article 23 to all GI products is considered to be one of the most practical solutions to promote the completion of international regime concerning the protection of GIs. More importantly, the extension should be developed through the TRIPS Agreement by amending Article 23.

Arguably, the amendment of TRIPS Article 23 to protect all products in the same level as wine and spirit is possible through the negotiations under the mandate of Doha Declaration. In order to refer the Doha Declaration to the extension of TRIPS Article 23, paragraph 18 has to be read in relation to Article 12. Paragraph 18 of the Doha Declaration,³² noted that the issue related to the extension of article 23 of the TRIPs Agreement will be reflected in the Council for TRIPS refer to paragraph 12 of the Doha Declaration.³³ Considering paragraph 12, it provides a negotiation mandate specific in the Doha Declaration. Since the member states of TRIPs Agreement agreed, under the Doha Declaration, to implement the outstanding issue including the extension of article 23 of TRIPS Agreement to all products in paragraph 18 of the declaration, it is plausible to address such the extension to the negotiation of TRIPs Agreement. Consequently, the member states should be obligated to negotiate the issue of amending article 23 of the TRIPs Agreement to include all products to be protected in a higher level as well as implement the extension of article 23 to their domestic protection.

Currently, there have been numbers of proposal attempted to extend the protection under article 23 to all GI product, for example the proposal from the EU, Guinea, India, Jamaica, Kenya, Madagascar, Mauritius, Morocco, Pakistan, Romania, Sri Lanka, Switzerland, Thailand, Tunisia and Turkey. The negotiation is still on-going but when it can be concluded in accordance with the supporters of the extension. The international protection of GI will be the potentially developed and become the sufficient tool to protect the product of, in particular, the developing countries in the global scheme.

B.  Inclusion of Multilateral Registration System in the WTO Regime
The registration system of GI is still diversity throughout the world. Where the products are sold widely in the international market, the possibility to protect GI in every single place is extravagance. As a result, the registration of GI should be in the single procedure. The feasible system should be the multilateral registration where once the certain GI has registered, it will be protected every state.

The international registration of GI has been found in some international agreement such as the Lisbon Agreement. However, the protection under the most significant legal tool, namely the TRIPs Agreement, is not, yet, developed such the system to its recognition of the GI protection on all products. Although article 23 provides the negotiation for the multilateral notification and registration, such the negotiation is limited to wine and spirit. Thus, the international registration system for all products is still in absence. Similar to the extension of article 23, the international registered system can be address in the TRIPs agreement by refers to the Doha Declaration, paragraph 12 and 18. The negotiation on the establishment of multilateral registration of GI over wine and spirit is already in the mandate of the Doha Declaration. The extension of the multilateral registration, which already exist in the mandate, to all products, therefore, should be in the scope of the negotiation. Thus, it is possible to enact the multilateral registration system to the TRIPs Agreement. When such the system is addressed in the TRIPs Agreement, the GI protection will become harmonious and feasible to protect all GI product in the international regime.

B. Inclusion of Multilateral Registration System in the WTO Regime
The registration system of GI is still diversity throughout the world. Where the products are sold widely in the international market, the possibility to protect GI in every single place is extravagance. As a result, the registration of GI should be in the single procedure. The feasible system should be the multilateral registration where once the certain GI has registered, it will be protected every state.

The international registration of GI has been found in some international agreement such as the Lisbon Agreement. However, the protection under the most significant legal tool, namely the TRIPs Agreement, is not, yet, developed such the system to its recognition of the GI protection on all products. Although article 23 provides the negotiation for the multilateral notification and registration, such the negotiation is limited to wine and spirit. Thus, the international registration system for all products is still in absence. Similar to the extension of article 23, the international registered system can be address in the TRIPs agreement by refers to the Doha Declaration, paragraph 12 and 18. The negotiation on the establishment of multilateral registration of GI over wine and spirit is already in the mandate of the Doha Declaration. The extension of the multilateral registration, which already exist in the mandate, to all products, therefore, should be in the scope of the negotiation. Thus, it is possible to enact the multilateral registration system to the TRIPs Agreement. When such the system is addressed in the TRIPs Agreement, the GI protection will become harmonious and feasible to protect all GI product in the international regime.