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Geographical Indications Trade

Abstract:

Geographical indications (GIs) as a fragment of Intellectual Property has become an significant issue in the International level along with the other issues i.e International Trade and Agricultural policy. Geographical Indications indicates that the product originates in a specific region, where a given quality of the product is attributable to its place of Origin. Well-known products of geographical indications includes Pro-sciutto- di- Parma (Italy) ,Feta Cheese (Greece) ,Scotch Whisky(Scotland),BasmatiRice(India). As a part of Intellectual Property, Geographical Indications have been debated at the global level for the improvement of advanced point of safety for agricultural products .Many countries have participated in this conference & raised about the authenticity and defense for the agricultural products and came to the conclusion that the geographical indications should be protected at the worldwide level, among them European Union have also demanded for the increase of higher degree of fortification to the agricultural food products.

CHAPTER : 1(Introduction)

1. GEOGRAPHICAL INDICATIONS

Geographical Indications can be assessed through product differentiation in the field of agriculture were certification cost are necessary to serve the geographical indications which provides not only high quality products but also benefits the welfare of the consumers .The TRIPS Agreement is the First Multilateral Agreement which dealt with Geographical Indications on April 15^th 1994. According to the TRIPS Agreement under Article 22(1) the Geographical Indication is a symbol which identifies the products from a specific geographical region which possess the qualities and reputation that are due to it's climatic conditions .The purpose of Article22(1) is to provide sufficient information regarding the products and to prevent the consumers from wrongful misappropriations regarding the geographical area and thus avoid the unfair competition .The definition of this Article 22(1) has elaborated the protection into three types, Indications of Source, Appellations of Origin, Geographical Designation of Origin.

Indications of Source:

Indication of Source is also known as geographical designations, which gives sufficient information to the consumers that particular product comes from a particular geographical area. It is also known as indication of provenance or a simple or qualified geographical indication of origin, which is generally described as Geographical Designations.

Example: Eiffel Towers (Paris),Statue of Liberty(USA), Tajmahal (India),Great Wall ofChina(China),Colosseum(Italy),ChristReedemer(Brazil),Chichenitza(Mexico),Petra(Jordan).

Geographical Designation is also known as Geographical Indications of Origin which is defined under Article 22(1) of TRIPS Agreement.

Appellations of Origin

According to Lisbon Agreement under Article 2 (1) Appellations of Origin means that the product which comes from a particular geographical area must possess the qualities & characteristics which have been derived from it's climatic conditions.

Example: Feta Cheese(Greece),Scotch Whisky(Scotland),Darjeeling Tea(India).

Among these three modes of protection ,indication of source only identifies that the product comes from a particular geographical area, whereas the geographical indications of origin & appellations of origin indicates that the product must have good qualities and characteristics which are due to it's climatic conditions that have been derived from it's geographical area.

INTERNATIONAL PROTECTION FOR GEOGRAPHICAL INDICATIONS:

TRIPS AGREEMENT:

Article 22(2) have provided some principles to protect the Geographical Indications for all the foodstuffs,by the WTO Members by way of legal rights to the involved parties whose goods are imitate or mistreated to the public or commence an act of unfair contest which falls within the implication of Article 10bis of Paris Convention.

Article 22(3) provides that at the request of the involved party the Member State shall not provide any defense to the geographical indications or it may repudiate the registration of a trademark for confusing the products to the consumers in relation to the geographical indication product that are not originated in the territory. However, the TRIPS Agreement does not provide any legal rights to protect the geographical indications, but it is only the national jurisdiction of the Member States who shall provide such protection to the geographical indications.

Paris Convention for the protection of Industrial Property,1883

Paris Convention was the most important treaty which adopt in the 19^thcentury,and was influenced by the Industrial Property Laws & was also adopt by many territories in the 20th century, followed by Madrid Agreement (1891),Lisbon Agreement(1958),TRIPS Agreement(1994). The treaty was the first multilateral agreement which provide protection for indications of source or appellations of origin which is defined under Article 1(2), when compared to the protection given by the TRIPS Agreement , it was the first intercontinental treaty which provided the protection to the geographical indication.

Along with Article 1(2) ,Article 10(1) provides for indications of source, the remedy prescribed in respect of commodities without authorization bearing a brand or a brand name in case of straight or not direct use of fake indication of source of the commodities or the distinctiveness of the manufacturer ,or a company, or a business.

According to the Convention, Article 10(2) provides that the remedies are not available to the involved parties where they unlawfully stated the indication of source on the product,& the product shall be seized or banned for importation.

1. TRADEMARKS:

Trademark as a piece of Intellectual Property Law advanced from the tort of Passing Off .It is an indication of commercial reputation which is related to the products of a trade. According to TRIPS Agreement under Article 15(1). Trade mark is a indication or a symbol which is applied to the products in relation to the trade which differentiates the products from one trader to another trader , or from one manufacturer to another manufacturer, or from one producer to another producer. Trademark may also consist of terms, scripts ,numerals ,sketch or outline of the product ,or their covering & in order to be a valid registration the trademark must be distinctive & not a descriptive .Trademarks even guarantee and provides the information, quality & trustworthiness of the product to the consumers & thus avoid fault & misleading .The registered trademark owner has an exclusive right to prevent the other traders or manufacturers or producers to use the similar indication which are identical or similar to their products. If the trader or manufacturer or producer wants to use the same sign for their products then they are permitted to use the symbol only with the approval or permission of a registered trademark owner. In addition to the trademarks, Collective marks & Certification marks indicates that the products have met the standards in relation to service, quality, origin or mode of manufacture.

1. DIFFERENCE BETWEEN GEOGRAPHICALINDICATIONS AND TRADEMARKS:

Geographical Indications is a generic indication which is related to all the traders of a particular geographical area, whereas Trademark is a logo or an indication which differentiate the product from one trader to another trader in relation to the business.

Any unfair misappropriations of geographical indications can be protected by all the traders of a traders organization, whereas in the trademarks the registered trademark owner can be protected by initiating the legal proceedings.

Geographical Indications gives adequate information to the consumers regarding the product which has a good qualities & characteristics that have been processed by the producers of a defined geographical area that are due to it's climatic conditions ,whereas trademark is an identification or a symbol which is used by a trader to distinguish their products from another trader.

Geographical Indications are descriptive in nature & they cannot be registered as a Trademark for goods or services, whereas Trademarks are distinctive in nature & they can be registered by a trader for the goods or services.

In Geographical Indications the principle of exclusivity can be protected by way of Certification or Collection Marks, whereas in Trademarks the registered trademark owner can avoid the other parties from using the similar indications for the similar goods or services in course of a trade under Article 16(1) of the TRIPS Agreement. So the first in time principle applies to the trademark owner who first register's the sign and holds as an exclusive rights.

Trademark is owned by a single owner & it can also be leased or licensed to third party, whereas geographical indications cannot be owned by any person or entity or association & they cannot be leased or licensed to third parties.

CHAPTER:2

Need for geographical protection on Agricultural Products:

For the protection of Geographical Indications, European Union plays a vital role in the WTO where it has adopted a high superiority principles in the agricultural products globally, are now proposing the WTO Members to extend the advance level of protection beyond wines & spirits & this proposal was also satisfied & accompanied by many countries.

However European Union has got many customary ,specalized & agricultural products and the producers who wish to make out their products globally must first register their product in their own territory & then they have to register in other country where they want to access their products ,but still they are not able to recognize their products globally & even other territory members are also exacting for the extension of higher level of protection for the agricultural products & foodstuffs.

By increasing the extended protection for agricultural food products this will not only benefits the producers of the European Union & other countries, but also decreases the registration charges & litigation problems & even it will increases the profit margins for the producers of a defined geographical area, and also helps to expand the rural areas & advances the agricultural sectors. By providing the enhanced protection, it will not only avoid the confusion for the consumers for the product differentiation but also gives the different geographical areas.

But on other hand New World Countries like Australia which are having agricultural subsidies, etc are contrasting the development of registered geographical indications procedure .They are worried if the Geographical Indications has given privileged level of protection then it will not only affect their developments in the agricultural sectors, but it will also affect their exports to the third country markets which will not only create an objections & obligations but also their will be chances of misuses & imitation of their products.

Chapter : 3

Issues involved in the protection of Geographical Indications

Europe has a ample range of quality good foods & when the product entitles the status it not only enters into the global markets but also stands in the contest with other products , because of it's genuinety & when the product reaches in the hands of the consumers then there arises unfair contest, which will not only discourages the producers, but also misleads the public. To avoid uncertainty & dishonest competition the European Union has enacted the regulation in the form of European Union Regulation:2081/92 on 14^th July 1992 for the Protection of Geographical Indications & Appellations of Origin for Agricultural Goods & Food Stuffs ,& after further reviews & amendments the European Union has enacted the 2081/92 regulation into two types i.e European Union 509/2006 for the fortification of geographical indication for agricultural products & foodstuffs which is known as Traditional Specialties Guaranteed(TSG) & European Union 510/2006 for the Protection of Geographical Indications & Appellations of origin for Agricultural Products & Foodstuffs ,both these regulations have been amended on 20^th March 2006. Geographical Indications as an element of Intellectual Property are approved as a separate entity under the council Regulation 510/2006 of March 20, 2006 for the protection of Geographical Indications and Appellations of origin for agricultural products and food stuffs.

Objectives:

The reason of this portion is to provide protection to the agricultural products of GI's that are facing by the producers of European Union in other countries .It focuses some of the problems that have met by the European Union Geographical Indications producers .

The first inconvenience for the European Union producers is to understand the legal frame work that is available in their own country where protection is sought for and the protection is available to the European Union producers who has faced many problems like unfair competition, passing off, trademark laws or a sui generis systems of protection of geographical indications ,whether it is registered or unregistered.

Unlike the agricultural products, most of the European Union Geographical Indications producers have secured protection for wines & spirits outside the European Union through bilateral agreements and these agreements have brought some positive results for the European Union producers, although there are some wine problems in some countries that are facing these abuses. There are still some geographical indication products that struggles to secure the protection in many countries, because of generic or semi-generic names which are signed by the European Union via bilateral agreements . As a result, the defense for these names has left entirely in the hands of producers beyond the European Union.

Consorzio del Prosciutto di Parma

Consorzio del Prosciutto di Parma has file a complaint against the defendant under Article4 of Trade Barrier Regulation in order to avoid certain allegations that has affected the export sales of Prosciutto di Parma to Canada.

Consorzio del Prosciutto di Parma which was established in the year 1963 is an organizing body which protects the Prosciutto di Parma & this was also accepted as a recognition by the Inter-Ministerial Decree on 12^th April,1994 on the basis of Law No:26 on 13^th February 1990.The Consorzio's main aim was to protect not only their product mark which was known as Ducal Crown Mark ,but also to provide protection to the producers, stockbreeders & traders who were involved in processing the ham product against the fraudulent uses, misappropriations & also to prevent the unfair contest.

Consorzio states that the Canada have kept the restrictions for exporting the ham product to their country ,because the name Parma is already being in existence which is being used by Maple Leaf Meats Inc & the Consorzio also claims that Canada kept some limitations regarding the product by stating that they :

1. cannot register the Prosciutto di Parma as Collective Trademark.

2. Providing legal protection only to their trademark which is known as Parma.

3. They does want to import Prosciutto di Parma which is already being used & recognized as geographical indications.

The Consorzio also states that they have register the mark as a Ducal Crown Mark as a Collective Mark in their National Jurisdiction & also dropped an application at World Intellectual Property Organisation to get register their product so that their product can be identified worldwide & now the application has also given a positive response & now the Ducal Crown mark as a Collective Mark has been provided protection not only in their territory, but also in other States like United Kingdom, Belgium, United States of America, etc.

Canada's refusal to accept Italian Product :

Consorzio claim that Canada is not providing any protection to the Italian ham product & also creating some difficulties regarding their products:

1. Unable to register the Italian Ham product either Collective or Certification Mark.

2. Unable to remove the product name which was registered as a trademark from the Canadian register.

3. Creating the restrictions to the Consorzio's product to export their products to Canada.

And the Consorzio also claims that Canada is not registering Prosciutto di Parma as a Collective Mark because the Maple Leaf Meat's has already registered their Ham product as "Parma". Moreover Collective Mark is a sign or an indication which is dealt by large number of people or an association dealing in different types of commodities for which they provide services to the people, but in Canada the geographical indications are protected by way of Certification Marks .

In my opinion the European Countries must also register their products as Collective Marks in their country then they have to file an application for registering their products as Certification Marks in other countries where they want to access their products.

So the Consorzio has dropped three applications in the name of Parma Ham , Prosciutto di Parma , Ducal Crown to register their products , but the Canadian Trademark Office rejected these applications for the obligations made by the Registered Trademark owner Principal Marques who owned from another trademark owner in the year 1996.In the Year 1997 Maple Leaf Meats had acquired the exclusive rights from Principal Marques .Now the Consorzio has initiated the legal proceedings against Maple Leaf Meats to remove the "Parma" from the Canadian Register Book & also to provide them the authoritative power to protect the Ducal Crown Mark & finally the Canadian Trademark office came to the conclusion on 11/02/1998,that the Consorzio shall be identified as authoritative body & also stated some conditions that the Ducal Crown Mark must indicate the Geographical Indication as "Parma" & also provided some restriction stating that this identification should not be used by any other new users

Consumer Packaging & Labelling Act:

According to Article 7(1) of the Consumer Packaging & Labelling Act. The trader shall not make any re-packaging to the product or marketing of the product by giving false or misleading information to public in relation to the product , but here the Canada has repackaged their cured raw ham in the packets & the labeling of the packet also evidenced the description like Italian wordings & Flag colours which clear shows that Canada has made a false representation of the product to the public. .

In my opinion firstly the consumers does not know whether the product is a genuine product 9or not, to provide good quality products to the consumers the government must take some appropriate steps by appointing some persons to inspect or make a small test for the product in front of the consumers so that the consumers can come to the conclusion that the product is a genuine product or not.

Marketing of the Products :

One of the element of Passing off is reputation where the Prosciutto di Parma is maintaining the standards like quality & quantity & in order to achieve their product as geographical indications & the Consorzio is an association which focus on the manufacturing process by putting many efforts in advertising their product globally , where the consumers are always ready to buy the genuine product at higher price ,but in Canada due to lack of protection of geographical indication for the Prosciutto di parma the Canadian traders are not willing to make the Italian product any Marketing & Advertising, as a result the consumers are not given any choice to buy the Italian product ,but they are giving the choices to the consumers to buy the Canadian product.

In my opinion

1. Firstly the Consorzio has to appoint some traders in the Country where they wish to access their product.

2. Secondly they must monitor whether the traders are making a sufficient advertising & marketing of the products.

3. Thirdly they must show the differences between their product & accessing country product to the consumers regarding the quality & quantity.

4. Fourthly the Consorzio must take steps for advertising the products because the single trader does not come forward to make the advertising of the product ,because the single trader thinks that by doing excessive advertisement the profits of the product will also go the other traders.

5. Fifthly the Consorzio must give adequate incentives & profit margins to the traders who make good marketing ,as a result the trader will get more interest in marketing that product.

Confusion of the Product:

Consorzio has initiated the proceedings against the defendant in order to eliminate the identified product "Parma" which they have reveled some facts before the Canadian Court where the defendants have misused the term "Parma", then both the parties have filed their arguments in front of the court:

The Plaintiff have argued that the defendant was selling the ham product in the market which showed the images & descriptions on the packaging where any body can identify that the product comes from Italy.

While the defendant have argued that most of the Canadian people do not recognize that the ham product is a geographical origin which comes from Italy.

By seeing the above evidences the defendant has not only affected the Plaintiff's reputation but also affected their export sales to third country markets where the plaintiff have not registered their products, this also created some sort of confusion even among the third countries markets.

Chapter IV

Present scenario on protection of geographical indication on agricultural food products in EU

EU-Regulation 2081/92

The defense for the geographical indications in the European Community is the Council Regulation (EC) 510/2006 which provides protection not only to the geographical indications and appellations of origin for the agricultural products and foodstuffs ,but also to the Council Regulation (EC) 509/2006 on agricultural products and foodstuffs which is termed as traditional specialties guaranteed (TSG).

Council Regulation 510/2006,was amended on 20 March 2006 , and came into force on 31 March 2006, which states in the fifth recital, that the agricultural products and foodstuffs which contains the label shall be subject to the rules that are laid down in the Directive 2000/13/EC of the European Parliament and the Council of 20 March 2000 for the estimation of the laws of the Member States that is associated to the labelling, presentation and publicity of the foodstuffs. In view of their specific nature, further special provisions should adopt for agricultural products and foodstuffs which comes from a defined geographical area.

According to sixth recital stipulation should be made for a Community to come nearer to the designations of origin and geographical indications .where a legal framework should be made by the community by providing the rules for protecting the geographical indications and designations of origin , by giving a extra standardized approach, it will not only provides fair contest between the manufacturer of goods who beares such indications ,but also increases the reliability of the goods in the consumer's eye.

The eight and ninth recitals of the Regulation states that the scope of this Regulation should be reserved to certain agricultural goods and foodstuffs for which a linkage exist between the manufactured goods or foodstuffs and geographical origin, alternatively its scope should also be extended to include other agricultural products or foodstuffs; Which are identified as Protected Geographical Indications (PGI) and Protected Designations of Origin. (PDO).

1. Protected Designation of Origin (PDO)

Article2(1)(a) provide Protected Designations of Origin .It is defined as term of an area ,a specific place or in rare cases, a country used to illustrate an agriculture product or foodstuff and in order to be confined as Protected Designation of Origin, the name or a particular product must be originated in that region or a place or a country where the qualities or characteristics of such product is really attributable due to it's climatic condition including natural and human factors & it is also necessary that the named product should be primed, processed & formed in a defined geographical area. Example: Basmati Rice( India), Scotch Whisky (Scotland),Prosciutto di Parma (Italy),Feta Cheese(Greece)

Parma Ham

"Prosciutto di Parma is identified as a protected designation of origin under the Italian law and also under the Community law which is laid down in Regulations (EC) Nos. 2081/92 and 1107/96.Parma is a city in Italy & Ham is a Meat product and it is used through Italian pigs .Each step is processed from breeding of the pigs, to the final packaging which is closely monitored and controlled by Istituto Parma Qualita(IPQ) ,the agency for which the Parma Ham Quality Certification is given. Only the IPQ can certify the finished ham with the seal of Parma's fine point Ducal Crown mark ,certifying the ham as a true Parma Ham. The ham product is also been identified as Protected Designation of Origin by the European Community.

1. Protected Geographical Indication

The second type of designation is known as Geographical Indication, and it is also known as Protected Geographical Indication .According to Article 2(1)(b) of the Regulation four basic requirements should be satisfied to be identified as a Protected Geographical Indication : It must contain the name of a region or a place( in exception cases a country)

1. It should describe whether the product is a food product or an agricultural product in which the product originates in that region, place or country

2. The product from which it is derived should have a specific feature, status or characteristics in which the product is attributable to that geographical origin.

3. And the manufactured goods should be developed, formed and or grounding work shall take place in the defined geographical area.

Examples of Protected Geographical Indications are: Newcastle Brown Ale, Rutland Bitter, Whitstable Oysters, Scottish Beef, Welsh Lamb.

The difference between PGI & PDO is merely a link concerning except the place of origin & characteristic of the goods .Another difference between PDO & PGI is that in case of PDO the manufacture, grounding & formation of the product should take place in a defined geographic area, whereas in case of PGI the production or ,preparation or ,processing shall take place in a named area.

1. Generic Names

Article 3(1) of the Regulation provides the name that have turn out to be generic may not be valid for registration, however the generic name means that the agricultural product or a foodstuff which contains a common name that is related to the area or the region where this product or foodstuff was originally created or marketed, and has became a common name in their Community. In establishing whether name has become generic or not, a number of factors shall be taken into the consideration:

1. the present circumstance in the Member states where the name originate and in areas of consumption.

2. The present condition of other Member states.

3. The relevant nationwide or Community law.

Feta Cheese :

In July 1992 the committee ask the member states to give the name of the food products which they are concerned as generic names & sent a request to three new member states. & in their memo they requested the council to include all the names of agricultural products & foodstuffs as generic, and the committee has decided to adopt only the traditional food products that have become generic and sent a request to 8 member states. The Hellenic Republic required the registration of Feta as PDO for salted white cheese which was traditionally produced in Greece & the majority of member states had also asked the commission to include the name feta on the list of generic names & the commission, relied on a market study which conducted in Greece,& concluded that that feta shall be registered as well as recognized as a geographical indication in that country.

1. Food Processing and Packaging as Part of a Protected Designation of Origin:

Prosciutto di Parma v Asda Stores

The Claimant (Consorzio) product was identified as Protected Designation of Origin for the meat product Parma ham, while the defendant was running a Departmental stores in the name of Asda Stores who used to purchase the ham from the member of Consorzio and then they used to process the ham in a sliced form & serve it to the customers in the United Kingdom. By processing & serving the ham product to the customers, the Claimant initiated the proceedings against Defendants from stopping this activity.

The court of Justice gave judgment in favour of member of Consorzio ,stating that the processing of meat product should be produced & prepared in the region of production which gives guarantee to the product as well as to the quality. But in this case Prosciutto di Parma which have been registered as a Protected Designation of Origin could not exercise because this provision did not brought to the attention to the third parties.

Grana Padano Case( C-469/00)

This case deals with Protected Designation of Origin 'Grana Padano', a cheese product which was registered and was subject to the conditions that the grill of the cheese shall be conveyed in the region of manufacture and wrapping. The defendant, had imported, grilled,& re-packaged the 'Grana Padano' cheese in France which it advertise under the name 'Grana Padano râpé frais'. Two Italian cheese producers initiated the legal proceedings against the defendant in the Tribunal seeking an injunction and damages. The Tribunal granted the injunction & damages against the defendant and on appeal the Court uphold the judgment ,stating that there was an acts of unfair contest by selling the cheese in a grill form in France. The Court , to which the defendant appealed sought a preliminary ruling from the European Court of Justice as to whether Article 29 (EC) has to be interpreted then the national legislation by hoarding the Grana Padano as a Protected Designation of Origin for grilling the cheese in the area of making, then such an obligation is not key factor for preserving the specific characteristics for which the product has gained

1. Right to bring an action in respect of a geographical indication

Under Article 173 of the European Community Treaty, a natural or legal person may bring a legal proceedings against the decision decided in favour of him in the form of a directive ,which is concerned to him either directly or separately . By registering a protected designation of origin, under this Regulation No123/97 it provides the opportunities to the trade and industry operators who assures the products according to the standards & specifications that are prescribed in the Article 4 of the Regulation No 2081/92 that is to be annexed to the application for registration ,for which the product is to be protected.

Altenburger Ziegenkase Case( C-447/98)

Two cheese companies raised the objections for the approval made by the German authorities for the regulations which made on 20 December 1993 for the name 'Altenburger Ziegenkäse which was recognized as a designations of origin , and on 26 January 1994 the Federal Republic of Germany requested the Committee to record the name as a Protected Designation of Origin under Article 17 of the Regulation No2081/92,with the approval of Regulation No 123/97,& the Commission has listed the name 'Altenburger Ziegenkäse as a Protected Designation of Origin. The appellants argued that the Cheese to which the area is recognized as geographical origin which were defined in the German Regulations and the application for which the registration was made to the Committee as an area of produce of 'Altenburger Ziegenkäse was too broad .The Court of Appeal upheld the decision of the court of first instance in relation to the Regulation No 123/97 which involved that the appellants objective in the activities for the manufacture of the cheese in relation to the geographical area shall be defined according to the specification and standards that are provided in the Regulation.

1. Infringement Actions

According to Article 13 of the Regulation, a breach of action in relation to the geographical indications may connect either to unlawful use of a secluded Geographical Indications or a Protected Designations of Origin, where a lawful action can be brought either by an individual who is liable for conserving the reliability of the geographical indication; or in relation to a deceptive use of a geographical indication.

Gorgonzola Case (C-87/97)

The Plaintiff product Gorgonzola was registered & protected as cheese product under the geographical indications & designations of origin since 1951 under international conventions treaty as well as under the Community law since 1996 .The defendant used the cheese product Cambozola which he manufactured in Germany & sold in Austria.

The Consorzio for the Plaintiff product initiated the legal proceedings against the defendant for marketing the product in Austria. The Austrian court referred the case to the court of Justice for the preliminary ruling whether any steps could be taken without infringing the community rules on the trade business with the consent of European Union . The Court of Justice concluded that Cambozola is considered as evocation of the title Gorgonzola & also stated that it is for the national courts to decide whether the term Cambozola have made an application for registration in good faith or not.

g)Defense of Good Faith Registration

The Defendant in the "Gorgonzola" case relied on its good faith under Article14(2) of the Regulation No 2081/92 where the defendant have filed the application in good faith for registering the brand name as Cambozola in Austria,. The ECJ held that the fortification enjoyed by the 'Gorgonzola was parallel to the protection which was assured since 1996 by the Community law. It has been experimental that the conception of good faith must be referred in view of the entire body of legislation, both at nationwide and global level at the time when the application for trade mark was registered . However it was for the national court to come to a decision whether the facts of the case was allowed to find in good faith or not.

Chapter 5 :

Protection of Geographical Indications --- Comparative Approach

1. Australia

Australia is one of the leading exporter for the farming products, which aims to liberalize the undeveloped trade, which have signed many agreements resembling Asia-Pacific Economic Co-operation (APEC), Closer Economic Partnership Agreement (CEP) ,Closer Economic Relations Free Trade Agreement (CER) with different territory members ,but it did not tied to sign the WTO Agreements for the proposition of Plurilateral Agreements which were relied on Government Procurement like geographical indications as a result European Community has became the opponent to the Australia.

tax on trade

During the recent years Australian Government have reduced the tariff system on Agricultural products to enter into the New World Markets.

Most of the agricultural area is liberalized except for some products like cheeses, mushrooms, spinaches, juices ,orange marmalade and some bacon ham and small good manufacturing (pork products).

Australia is remote from many diseases and vermin in its plants and fauna, as a result it is very difficult for the Australian Markets to monitor on the Agricultural Food Products, so in order to satisfy their products, they are relying on the Quarantine & Inspection Methods and after completition of these inspections then they are keeping their Food Standards Code

Major problems have arisen for the European Union to export some of the Meat & Cheese products and the Australia's straight forward approach towards the Quarantine and hazard assessment, have become an obstruction to the European Community to export their products. As a result the European Union markets are maintaining self determination in maintaining the agricultural products which are maintained through Common Agricultural Policy . "

The "Parma ham"

In the negotiations on an International Geographical Indications System, Italy has articulated itself in favor of a massive geographical indication protection, in an agreement with the position of the producers of the two Italian best-known products i.e Parma ham and Parmesan cheese.

The feature of the Italy tells that Parma ham has been processed in the Italian region of Parma since Roman times, since long back to 100 BC. In 1963, a group of 23 Parma ham manufacturers came to the conclusion that any body should stand up against any one from outside their region which produces their product by using their traditional recipe and name. This was the establishment of the Consorzio del Prosciutto di Parma, whose aim was to protect the Parma ham, which has some sort of traditional production procedure, by its name and its international reputation.

In 1996, when the European Union regulation for the protection of geographical indications came into force, the Consorzio received a protected designation of origin (PDO) for its ham ;so it identified as real thing in the ham product which comes from the region of Parma which is called 'Parma Ham'.

The Parma Ham is making its production more than 60 countries. The approach of the Consorzio del Prosciutto di Parma for defending their Ham product consists of two things(a) to place the manufactured product in the market & to protect its sign with their local laws either it may be a trade mark or geographical indication protection, or both; (b) and then try to focus on the product, & to take legal actions against every kind of infringement.

There are internal supervisor in Italy, Europe and in other countries where they can get the information of their trade. In case of any violations ,against the product then the Consorzio del Prosciutto di Parma demand them to stop it and if necessary, they may take a legal proceedings. This network is necessary to control the world market and to insure the Parma ham a future as a traditional Italia food.

The dispute between Parma ham and non-Parma ham producers started many years ago. In the first 10years the conflicts were mainly condensed in Italy, but later, by exporting these ham products to other countries , these disputes also extended to the rest of the world.

Australia opens market to Parma and the San Daniele Hams.

The Parma ham is the chief Producer for the imports & exports of the European hams in the markets globally, where the production sales are more in the Italian markets than the export sales to USA, Japan, Canada.

In the Year 2007, the Australian government have made up their mind to launch the Italian Cured Parma Ham into their markets & even the Italian Embassy also granted the permission to import the Parma Ham into the Australian Markets.

As a result ,familiar Italian small products was also acknowledged by the Australian authorities and also by the Italian Authorities who focused on the markets & came to the conclusion that Australian Markets is the Potential Market for bringing up the products and even the Australian Quarantine & Inspection Service(AQIS) was also official approved according to their tests conducted by them and even some of the importers have also have filed the application to obtain the licenses to import the Italian cured raw ham into the Australia

For this even the AQIS have also confirmed their request and granted the license for which the importers have applied and also issued the Phytosanitary Certificate.

1. Canada :

Canada safeguards the interest of the geographical indications by several methods & in case of agricultural food products it is protected by way of Certification Marks, under Canada's Trade-Marks Act,.

Canada also states that by extending the advanced protection to the geographical indications for the agricultural food products,they have to monitor not only there route systems such as mutual registry system, their publication process systems, legal allegations, monetary and organizational responsibilities ,but even they have to take steps to restrict the food products which consist of generic names such as Parmesan or Feta Cheese which will be very expensive & loss to the manufacturing companies, who manufactured these products, even re-labelling will
also cause a misunderstanding among the consumers who will purchase the goods because they do not know that the generic name of a particular manufactured goods has been altered or not , whether the product and quality might remain same.

Certification marks in Canada is more flexible then the procedures which are followed by the European Union. Precautionary steps in maintaining the standards is taken by the owner of the goods who Certify the product ,because the owner of the product wants to create a confidence to the customers so that what he certifies the product with the trust the consumers will also have a trust on the owner who certifies the product.

In my opinion in order to attain the protection for geographical indications in other territory states, the interested party has to apply the Certification Marks for the specific product which he wants to access the sales because these products will be under the control of that markets & if the trader of the accessing market violates or makes any imitation or abuse of that product then the interested party will have a right to file a case against him

Chapter 6 :

Protection of Agricultural Food Stuffs:

Promotion of products with specific characteristics, particularily those coming from less favoured or rural areas &the improvement of the income of the farmers,in return for a genuine effort to improve the quality

One of the main objectives of EEC2081/92 is the fortification of provenance as a channel of promoting urban development , the raise of products having particular characteristics could be of sizeable gain to the country financial system, in context to less-favored or remote areas, by improving the life standards of agriculturalist

.Reflected in the preamble statement is an understanding of the wider socio-economic implications of protecting IGOs. We have noted the regional/local level specialisation within product categories . Most of these products are .land-based.and reflect strong historical and symbolic links between place and product . It is with this understanding of locating these products at the intersection of culture and geography that promotional strategies ofniche marketing and product differentiation might be possible.

Geographical indications are much more than the identification of a product with a place. As a part of intellectual property, that is attached to territory ,they are a means for the social and industrial groups with rights to them to protect and distinguish their products. Small local producers are able to use them to enhance their reputations, and to sell directly to final demand, thus competing more effectively against large corporations.

Earlier GIs are a type of collective monopoly right This has the dual advantage of allowing the users of the indication to differentiate their product in the market whilst simultaneously the indication functions as a barrier to entry into their market segment. To be clear, the specifications articulated in the registration of the GI establish how, where and with what ingredients the product is to be made .For the class of producers (and their products) that qualify for protection, GIs provide an opportunity of capturing the rent embedded in the appellation .However, there are spillovers from protecting GIs since they act to publicize the localities and regions that they use for their names:

Produits de terroir . literally , products of local or regional land. enjoy a small, but not negligible market position when compared to mass-produced agricultural foodstuffs: the share of the total foodstuffs market are10.6% in France, 10.7% in Italy, 6.7% in Spain, 5.2% in Portugal This market segment is growing . Interestingly, the European Regulation (EEC 2081/92) itself is cognizant of this growing trend as reflected in the following statement from the Preamble it has been observed in recent years that consumers are tending to attach greater importance to the quality of foodstuffs rather than to quantity (generating) a growing demand for agricultural products or foodstuffs with an identifiable geographical origin. . Not too dissimilar are growth in market segments that use labels like organic fair trade and ethical trade.

Provision of clear and sufficient information to consumers regarding product origin:

Advertising or Marketing

A particularly important function of trademarks is their use in advertising and product promotion. The way in which trademarks facilitate this process is by their ability to distinguish and identify goods and services. This is important in markets where there is a proliferation of homogenous goods as it allows purchasers to identify the goods of a particular trader. Thus in the market for agricultural. Products, which have tended to be homogenous there has been some success in the marketing of "Chiquita" bananas and "Jaffa" oranges. Cuba has enjoyed success with its trademarks: "Bacardi" for rum and "Havana" for cigars .A trademark is a concise way in which to refer to a product. The success of the advertising increases the mark owner's market power with respect to the goods to which the mark is attached. The more significant the market power of a trade mark owner, the easier it is to penetrate foreign markets .The resulting increase in international trade has had, as one of its consequences, a growth in international advertising activities. The product differentiation and advertising function of trademarks has not been without its critics. It is said that in markets for homogenous products ,the consumer is persuaded that similar products are, in fact, dissimilar. Apparent consumer choice thus appears widened while actual choice remains the same. On the other hand, the development of an advertised brand acts as a powerful incentive for the advertiser to secure repeat purchases to cover the advertising spend, by offering goods of a consistently high standard.

Guarantee of Quality

"Because consumers can use trademarks to identify goods which will meet their needs, an incentive is created for manufacturers and distributors to meet the reasonable expectations of consumers with regard to product quality. Accordingly, the use of trademarks tends to encourage trademark owners to maintain consistent standards of quality for goods and services offered under their marks. This is underscored by the law's insistence upon quality controls in trademark licensing agreements .The value inherent in achieving consumer loyalty to a particular trademark through the maintenance of consistent product quality is referred to as the "goodwill" associated with the trademark. Consumers use information about the origin and likely quality of products to aid them in making purchasing decisions. In places where only one brand is available , consumers use this information in making the decision whether to buy. The benefit of this to consumers, it is alleged, is that they are prevented from making purchasing errors"

CONCLUSION

The experience of many European Union Geographical Indication producers prove that it is very difficult, and often very costly for the geographical indications producers to protect their Geographical Indication via Trademark systems ,passing off actions or on the basis of unfair competition and consumer protection acts, even in many agendas, the issue have been raised to extend the protection to agricultural products & foodstuffs beyond wines & spirits , even many other countries are supporting this extension, but the New World Countries like USA, Canada, Australia are against this extension,& the main issue is related to the costs & access to the markets but no positive results have been identified .So in my opinion in order to over come these difficulties every country should develop the sui generis protection to protect their Geographical Indications.

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