EPA Negotiations: Intellectual Property and Sustainable Development for ECOWAS Countries By Catherine Grant Director: Trade Policy Business Unity South Africa

Geographical Indications Article 22 WTO TRIPS Agreement: “indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”

Geographical Indications A geographical indication or GI is a designation which identifies certain qualities or other characteristics or the reputation of a particular product to a specific geographical locality. A GI is designed to designate product quality, highlight brand identity and preserve cultural traditions.

Examples >Champagne >Feta cheese >Kenyan coffee >Nile perch >Parma ham >New Zealand lamb >Darjeeling tea >Florida oranges >Tequila >Swiss watches

Multilateral Protection >Intellectual property agreements including the Paris Convention and Lisbon Agreement >WIPO Standing Committee – model national law >WTO TRIPS Agreement

TRIPS Agreement >Enforceable under WTO dispute settlement system >Wide variety of means used by WTO members to protect GIs including specific laws, trademark law, consumer protection law or common law >Article 22: general level of protection for GIs > Protection of GIs to avoid misleading the public or to prevent unfair competition

TRIPS Agreement >Article 23: heightened level of protection for wines and spirits > Use of the GI does not need to mislead the public >Article 24: exceptions > Previous use of GIs (grandfathering) > Trademarks > Terms customary in common language > Names of people

TRIPS Agreement >Article 24.9 “There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.”

Doha Round Negotiations >Three key issues related to GIs: 1.Creation of a multilateral register for wines and spirits 2.Extending the higher level of protection beyond wines and spirits 3.Linkage between GIs and the agriculture negotiations – clawback for terms in common usage

GIs in FTAs >Provisions on GIs have been included in many recent FTAs especially those negotiated by the EU, EFTA and the US >Starting point is usually a commitment to existing multilateral obligations >Specific agreements reached on wines and spirits by some countries >Example: South Africa – EU Trade Development and Cooperation Agreement (TDCA) Protocol on Wines and Spirits

GIs in the EPAs >Cooperation vs. commitments >Reinforcing the existing international architecture >TRIPS plus commitments > Extension of higher level of protection to all products > Positive obligation to protect GIs > List of terms that do not constitute terms customary in common language > Internet use >Implementation period >Least Developed Countries >Subject to dispute settlement provisions

Possible Benefits >Maintain reputation of products >Premium prices >Greater returns to local producers >Niche marketing opportunity >Possible tool to protect traditional knowledge

Possible Costs >Restrictions on producers’ use of GIs > Renaming > Labelling > Rebranding/marketing > Possible legal challenges > Trade barrier >Administration of system for protection of GIs – human and financial costs for governments >Costs and requirements of registration of local GIs

Way Forward: Towards a Positive Agenda >Assessment of current protection offered to GIs under the domestic and regional regimes >Potential benefits to be gained from TRIPS-Plus commitments including in the context of the EPA as a whole >Likely costs of TRIPS-Plus commitments >Specific GIs that could be protected >Common terms that need to retain >Technical assistance needs in the area of GIs e.g. awareness raising

THANK YOU! MERCI! Catherine Grant Director: Trade Policy Business Unity South Africa