EU Geographical Indications and Intangible Cultural Heritage

Abstract

Misappropriation of intangible cultural expressions occurs in countries other than their state of origin and is therefore of a transnational nature. In 2003 the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage was adopted to safeguard intangible cultural heritage (ICH) at the domestic and international level. However, this Convention lacks rules on transnational misappropriation. To safeguard ICH across borders, the States Parties adopt intellectual property rights (IPRs) of a collective nature, in particular geographical indications (GIs). However, registration of GIs in the country of origin of the ICH cannot safeguard it across the globe. Indeed, GIs must not only be registered in their country of origin, but also in other jurisdictions. Hence, certain States Parties register GIs in their respective territories, as well as in other countries. In particular, EU GIs are registered by non-EU Member States. However, multi-state registrations of GIs still cannot safeguard ICH transnationally, since the parallel GIs must currently be enforced in each and every country of registration, even in the case of EU GIs. In fact, the EU Quality Schemes Regulation does not establish a system of cross-border enforcement of GIs and must be integrated in the EU private international law rules of the Brussels system. This system applies an exclusive jurisdiction rule to transnational disputes on IPRs, however, which implies multiple parallel proceedings, with the risk of conflicting judgments, considerable litigation costs and inequalities between parties, particularly when IPR holders are the ICH bearers, and are therefore communities, groups or individuals. Yet, unlike transnational disputes concerning IPRs, those regarding GIs do not fall under the exclusive jurisdiction rule of the Brussels system. Thus, this system allows for their consolidation before a single competent court. This consolidation would be in line with recent international academic proposals, among them the International Law Association Committee on Intellectual Property and Private International Law.