Intellectual Property Law and Geography

Written by: Faisal Amaan

In the world of digital and global economy, Intellectual Property (“IP”) laws safeguard the results of human development which includes inventions, designs, artistic works, trademark and copyright. IP laws are enhancing day by day. However, such enhancement is influenced by the geographical factors of the region.

The interplay between IP laws and geography is a complex and essential factor for individuals involved in international commerce, innovation, or the safeguarding of cultural heritage. Diverse nations and regions have unique frameworks and cultural contexts that influence the development, usage, and protection of IP. One of the sharpest connections between IP laws and geography is through the Geographical Indications (the “GIs”). As all regions have its own uniqueness and culture through which people produce products which can only be produce in that particular environment due to their geographical factor.

In this article, we will discuss: (i) what is GIs; (ii) how geography plays a role in IP laws formation; (iii) why it is important to protect the GI; (iv) how GIs can be protected.

GIs are a sigh used and marked on products that have a specific geographical origin or holds qualities, reputation and characteristics from a particular location. Such products can include agricultural products, foodstuffs, wine and spirits, or even handicrafts. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.

A GIs right enables and provide those who have the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. For example, in the jurisdictions in which the “Darjeeling” GI is protected, producers of Darjeeling tea can exclude use of the term “Darjeeling” for tea not grown in their tea gardens or not produced according to the standards set out in the code of practice for the GI. However, a protected GI does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. Protection for a GI is usually obtained by acquiring a right over the sign that constitutes the indication. Other examples could be ‘swiss watches’ which originated from Switzerland; champagne from France; or tushetian guda cheese from Georgia. These all are protected under GIs for their quality and the process for its creation.¹

Studies reveal that their number of factors in which geography influences the IP law creation and its implementation.  The most significant factors are:

1. Differences in Economic Development: the economic development of a country often dictates how IP laws are applied and enforced. In developed economies, strong IP protection is typically seen as essential to encouraging innovation and fostering economic growth. Establishments in these developed countries often rely heavily on patents, copyrights, and trademarks to secure competitive advantages. However, in the developing countries’ economies may prioritize the sharing of knowledge and access to IP protected goods over strict enforcement. This divergence in priorities reflects broader economic differences, where the balance between protecting IP and prompting access becomes a crucial issue.

    

2. Legal Traditions: IP laws also vary depending on a particular country’s legal system, which is often shaped by its geography and history of the county. Countries with common law systems, like the UK and the US, tend to have more flexible IP systems that allow for case-by-case interpretations. On the other hand, countries like civil law systems, like France, China and Germany, often have more codified and rigid IP frameworks. This can affect how IP disputes are resolved and how rights are protected across different jurisdictions

    

3. Cultural Influences: Geography often defines cultural perspectives on creativity, ownership, and IP. Some countries place greater emphasis on collective rights and the sharing of knowledge, while others prioritize individual ownership and control over creative works. Indigenous communities, for example, may hold different view of IP, open emphasis communal ownership of knowledge rather than individual ownership. This has led to calls for more regionally tailored IP protection that consider cultural nuisance, such as protecting traditional knowledge and folklore.

Using of GIs without authorization create a confusion between the consumer as they think such product which they are buying are genuine with having specific qualities and characteristics of particular geography. However, in reality they get an imitation. Having registered marked GIs hold a reputation of an intangible asset. If such GIs are not protected, they could have unauthorized access by parties and geographical producers of that product suffer damage which may ultimately undermine the GI's reputation and goodwill.

Safeguarding a GI allows the producer to take action against unauthorised individuals who exploit GI without consent and capitalise on its reputation without compensation to the producer. The rights provided to GIs are like all other IP rights, which are enforced by the application of national legislation, which is normally done in court. In some countries the function of granting GI protection is carried out by a special IP office body responsible for GI protection.

GIs are safeguarded in various countries and regional systems using a diverse array of methods, these methods can be of mixing of two or more of the methods delineated below. These methods were established in conformity with various legal traditions and within the context of certain historical and economic circumstances.

There are four primary methods for protecting the GIs, which are as follows:

1. so-called sui generis systems (i.e. special regimes of protection);
2. using collective or certification marks;
3. methods focusing on business practices, including administrative product approval schemes; and
4. through unfair competition laws.

These methods highlight variations concerning critical issues, including the criteria for safeguarding and the extent of that protection.¹

To enforced GIs in IP laws, each country has developed IP laws which are regulated by a confluence of domestic legislation and international agreements. International agreement includes treaties like the Berne Convention for the protection of literary and artistic works, the Paris Convention for the protection of industrial property, and the Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) aim to establish a more unified global framework for safeguarding IP rights (IPR); the Lisbon agreement for the protection of appellations of origin, that is, the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographic environment, including natural and human factors, and the Madrid agreement that makes possibility to protect a mark in a large number of countries by obtaining an international registration that has effect in each of the designated contracting parties.²

In conclusion, relation between IP and geography plays a crucial and important role in protecting GIs from any unlawful infringement. GIs illustrate how IP laws adapted to protect the product uniqueness of their place of origin and helping in preventing customer confusion from any imitation. Further, securing GIs through local laws and internation agreements protects the product for its authenticity and culture value of particular region.

References:

1. https://www.wipo.int/geo_indications/en/
2. https://www.wipo.int/treaties/en/