Fair Use of Geographical Indications: Another Look at the Spirited Debate on the Level of Protection

Abstract

AbstractOne of the most contested issues in international trade negotiations is the level of protection granted to geographical indications (GIs). WTO Members are divided between the ‘Old World’ represented by the European Union and the ‘New World’ headed by the United States. For decades, conventional wisdom has suggested that the debate is indeed a disagreement over the terroir idea. This article tackles the debate from a largely unexplored perspective, namely, fair use exceptions, which allows us to find the opposite: even if countries embraced the terroir idea equally, the divide on protection level would persist because of divergent approaches to the fair use of GIs. This divergence derives from countries’ different preferences for balancing conflicting interests, different policy goals, and different understandings of what is ‘fair’. Other countries should take these considerations into account when choosing a protection level suitable for their national conditions and goals.