Section
3: geographical indications back to top
Article 22
Protection of Geographical Indications
1. Geographical
indications are, for the purposes of this Agreement,
indications which identify a good as originating in the
territory of a Member, or a region or locality in that
territory, where a given quality, reputation or other
characteristic of the good is essentially attributable to
its geographical origin.
2. In
respect of geographical indications, Members shall
provide the legal means for interested parties to
prevent:
(a) the
use of any means in the designation or presentation of a
good that indicates or suggests that the good in question
originates in a geographical area other than the true
place of origin in a manner which misleads the public as
to the geographical origin of the good;
(b) any
use which constitutes an act of unfair competition within
the meaning of Article 10bis of the Paris
Convention (1967).
3. A
Member shall, ex officio if its legislation
so permits or at the request of an interested party,
refuse or invalidate the registration of a trademark
which contains or consists of a geographical indication
with respect to goods not originating in the territory
indicated, if use of the indication in the trademark for
such goods in that Member is of such a nature as to
mislead the public as to the true place of origin.
4. The
protection under paragraphs 1, 2 and 3 shall be
applicable against a geographical indication which,
although literally true as to the territory, region or
locality in which the goods originate, falsely represents
to the public that the goods originate in another
territory.
Article 23
Additional Protection for Geographical Indications for
Wines and Spirits
1. Each
Member shall provide the legal means for interested
parties to prevent use of a geographical indication
identifying wines for wines not originating in the place
indicated by the geographical indication in question or
identifying spirits for spirits not originating in the
place indicated by the geographical indication in
question, even where the true origin of the goods is
indicated or the geographical indication is used in
translation or accompanied by expressions such as
“kind”, “type”, “style”,
“imitation” or the like. (4)
2. The
registration of a trademark for wines which contains or
consists of a geographical indication identifying wines
or for spirits which contains or consists of a
geographical indication identifying spirits shall be
refused or invalidated, ex officio if a
Member’s legislation so permits or at the request of an
interested party, with respect to such wines or spirits
not having this origin.
3. In
the case of homonymous geographical indications for
wines, protection shall be accorded to each indication,
subject to the provisions of paragraph 4 of Article 22.
Each Member shall determine the practical conditions
under which the homonymous indications in question will
be differentiated from each other, taking into account
the need to ensure equitable treatment of the producers
concerned and that consumers are not misled.
4. In
order to facilitate the protection of geographical
indications for wines, negotiations shall be undertaken
in the Council for TRIPS concerning the establishment of
a multilateral system of notification and registration of
geographical indications for wines eligible for
protection in those Members participating in the system.
Article 24
International Negotiations; Exceptions
1. Members
agree to enter into negotiations aimed at increasing the
protection of individual geographical indications under
Article 23. The provisions of paragraphs 4 through 8
below shall not be used by a Member to refuse to conduct
negotiations or to conclude bilateral or multilateral
agreements. In the context of such negotiations, Members
shall be willing to consider the continued applicability
of these provisions to individual geographical
indications whose use was the subject of such
negotiations.
2. The
Council for TRIPS shall keep under review the application
of the provisions of this Section; the first such review
shall take place within two years of the entry into force
of the WTO Agreement. Any matter affecting the compliance
with the obligations under these provisions may be drawn
to the attention of the Council, which, at the request of
a Member, shall consult with any Member or Members in
respect of such matter in respect of which it has not
been possible to find a satisfactory solution through
bilateral or plurilateral consultations between the
Members concerned. The Council shall take such action as
may be agreed to facilitate the operation and further the
objectives of this Section.
3. In
implementing this Section, a Member shall not diminish
the protection of geographical indications that existed
in that Member immediately prior to the date of entry
into force of the WTO Agreement.
4. Nothing
in this Section shall require a Member to prevent
continued and similar use of a particular geographical
indication of another Member identifying wines or spirits
in connection with goods or services by any of its
nationals or domiciliaries who have used that
geographical indication in a continuous manner with
regard to the same or related goods or services in the
territory of that Member either (a) for at
least 10 years preceding 15 April 1994 or (b) in
good faith preceding that date.
5. Where
a trademark has been applied for or registered in good
faith, or where rights to a trademark have been acquired
through use in good faith either:
(a) before
the date of application of these provisions in that
Member as defined in Part VI; or
(b) before
the geographical indication is protected in its country
of origin;
measures
adopted to implement this Section shall not prejudice
eligibility for or the validity of the registration of a
trademark, or the right to use a trademark, on the basis
that such a trademark is identical with, or similar to, a
geographical indication.
6. Nothing
in this Section shall require a Member to apply its
provisions in respect of a geographical indication of any
other Member with respect to goods or services for which
the relevant indication is identical with the term
customary in common language as the common name for such
goods or services in the territory of that Member.
Nothing in this Section shall require a Member to apply
its provisions in respect of a geographical indication of
any other Member with respect to products of the vine for
which the relevant indication is identical with the
customary name of a grape variety existing in the
territory of that Member as of the date of entry into
force of the WTO Agreement.
7. A
Member may provide that any request made under this
Section in connection with the use or registration of a
trademark must be presented within five years after the
adverse use of the protected indication has become
generally known in that Member or after the date of
registration of the trademark in that Member provided
that the trademark has been published by that date, if
such date is earlier than the date on which the adverse
use became generally known in that Member, provided that
the geographical indication is not used or registered in
bad faith.
8. The
provisions of this Section shall in no way prejudice the
right of any person to use, in the course of trade, that
person’s name or the name of that person’s predecessor in
business, except where such name is used in such a manner
as to mislead the public.
9. There
shall be no obligation under this Agreement to protect
geographical indications which are not or cease to be
protected in their country of origin, or which have
fallen into disuse in that country.
Section
4: industrial designs back to top
Article
25
Requirements for Protection
1. Members
shall provide for the protection of independently created
industrial designs that are new or original. Members may
provide that designs are not new or original if they do
not significantly differ from known designs or
combinations of known design features. Members may
provide that such protection shall not extend to designs
dictated essentially by technical or functional
considerations.
2. Each
Member shall ensure that requirements for securing
protection for textile designs, in particular in regard
to any cost, examination or publication, do not
unreasonably impair the opportunity to seek and obtain
such protection. Members shall be free to meet this
obligation through industrial design law or through
copyright law.
Article 26
Protection
1. The
owner of a protected industrial design shall have the
right to prevent third parties not having the owner’s
consent from making, selling or importing articles
bearing or embodying a design which is a copy, or
substantially a copy, of the protected design, when such
acts are undertaken for commercial purposes.
2. Members
may provide limited exceptions to the protection of
industrial designs, provided that such exceptions do not
unreasonably conflict with the normal exploitation of
protected industrial designs and do not unreasonably
prejudice the legitimate interests of the owner of the
protected design, taking account of the legitimate
interests of third parties.
3. The
duration of protection available shall amount to at least
10 years.
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