Uncorking Hierarchy: Rethinking The Hierarchy Of Protection Under Articles 22 And 23 Of The Trips Agreement
Dharani Geddam, O.P. Jindal Global University
ABSTRACT
Geographical Indications (GIs) under the the Trade-Related Intellectual Property Right (TRIPS) Agreement provide for the protection of the unique characteristic and quality of a good essentially attributable to their geographical origin. However, the protection guaranteed under the TRIPS greatly differs between Article 22 and 23. While Article 22 guarantees a general level of protection to all GIs; it is often contingent on the “misleading test” having to prove either likelihood of deception or unfair competition. Article 23 on the other hand provides for extended protection exclusively to wines and spirits. It argued that this creates a hierarchy of protection based on the kind of product which is typically absent under Intellectual Property regime. This was a product of negotiation compromises during the Uruguay Rounds rather than any principled distinction in the nature or value of the goods themselves. This hierarchy also disproportionately impacts whose GIs are vulnerable to free-riding and run the risk of becoming generic, while developed countries, particularly European countries benefit due to location of wines and spirits such as Champagne, Scottish Whiskey. India along with several other countries have continued to take a pro-protectionist stance towards extending Article 23 protection beyond wines and spirits. There is no rational or legal nexus for such a distinction and such a protection has to be extended to goods beyond wines and spirits to prevent free-riding and imitation of these goods.
