Do Geographical Indications for Handicrafts Deserve a Special Regime? Insights from Worldwide Law and Practice

Abstract

According to the TRIPs Agreement, Geographical Indications (GIs) identify a good as originating in a region where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin, be it an agricultural or non-agricultural product such as a handicraft. However, in Europe, and until recently in France, GIs are limited to agricultural products and foodstuffs along with wines and spirits, in contrast to the flourishing registration of GIs for handicrafts in other WTO member States, especially in Asia. Due to the absence of a uniform framework for all types of goods, negotiations in bilateral agreements are less smooth and international trade is hampered while European artisans cannot obtain protection for their handicraft’s GIs. The purpose of this chapter is to analyze the legal basis for the protection of GIs over time and over practice in several countries worldwide and whatever the product is, to question the relevance of a product-based approach. The key findings of this theoretical and empirical analysis suggest that the discrimination between products is not justified, including the existence of a special regime for wines and spirits. The chapter recommends the use of the same criteria of the link to the origin to be applied to GIs for all kinds of goods. Whatever the product is, it is recommended to apply a two-level GI reference according to the presence or absence of natural factors. Such insights cast new light on the existing legal regimes for GIs and suggest potential avenues for reform: in France, which has just passed a new law on GIs for handicrafts; in the EU where the protection of GIs for handicraft is a debated issue; as well as in international treaties on GIs, be that the TRIPs or the Geneva Act of the Lisbon Agreement for the international registration of appellations of origin and geographical indications.