M. Geuze
identifying a wine when used on a wine that does not originate in the place indicated
by that geographical indication. In other words, for this form of protection to apply,
there is no requirement to show that the use in question might mislead the public or
amounts to unfair competition, irrespective of whether the true origin of the good is
indicated or the geographical indication is accompanied by expressions such as
“kind”, “style”, “type”, “imitation” or the like. Protection must also be available
against the registration of a trademark for wines, if the trademark contains a
geographical indication identifying wines and the wines do not have the origin
indicated by the geographical indication.15 Similar protection must be given to
geographical indications identifying spirits. With respect to use of these geographical
indications for other products, the general standards of protection under Article 22
apply.
In the case of homonymous geographical indications (that is, different
geographical indications that consist of or contain the same identifier),16 protection
should be accorded to each homonymous indication. However, this protection may not
hold if use of one of the homonymous geographical indications in a given WTO
member would falsely represent to the public in that member that the products in
question originate in the territory of the other homonymous geographical indication.17
The agreement contains a specific rule18 concerning homonymous geographical
indications for wines, laying down that, in the case of such geographical indications,
practical conditions must be determined so as to differentiate the homonymous
indications, taking into account the need to ensure equitable treatment of the relevant
producers and also to ensure that consumers are not misled.
Exceptions
Article 24 contains a number of exceptions regarding the protection of geographical
indications. They should be read in conjunction with the provisions in the same
article19 concerning negotiations aimed at increasing the protection of geographical
indications and which WTO members are not allowed to refuse to enter into or
conclude on the basis of the existing exceptions applied in accordance with Article 24.
There are three main exceptions that are of particular relevance with respect to the
additional protection for geographical indications for wines and spirits. The first main
exception provides that a member state is not obliged to protect a geographical
indication in cases where a geographical indication has become the generic name in a
country for the products in question or for a grape variety.20
The second main exception deals with the situation where a geographical
indication may conflict with pre-existing trademark rights acquired in good faith,
which should be protected in accordance with the TRIPS provisions on trademarks, as
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Estey Centre Journal of International Law and Trade Policy