Ceremony to mark the 50th anniversary of the adoption of the Lisbon Agreement
Lisbon, October 31, 2008
Francis Gurry - Director General, WIPO
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Today, we celebrate the 50th anniversary of a treaty that was concluded on October 31, 1958 here in the beautiful city of Lisbon and that has commenced enjoying a second youth: the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration.
The conclusion of the Lisbon Agreement back in 1958 was a remarkable achievement. I say this knowing that, since its inception, the Agreement has not been glorified by all. On the contrary, opponents have continuously libeled it.
There are three important reasons why I wish to emphasize the remarkable nature of the result that the founding fathers of the Agreement reached.
The first reason is explained by the fact that the issue of geographical indications had already been hotly debated in the international arena since the late 19th century without multilaterally agreed tangible results concerning the protection of geographical indications going beyond what is laid down in the Paris Convention and the Madrid Agreement for the Repression of False or Deceptive Indications of Source in 1891. Even among like-minded it had not been possible to arrive at common ground for the establishment of an international registration system for geographical indications.
The second reason concerns the fact that the negotiators did not only manage to agree on a definition on the basis of which geographical indications should be measured as being capable for international registration under the Agreement, but also on the level of protection that Member States should provide in respect of such geographical indications.
The third reason why the Agreement represents such a remarkable result is probably the most important one. In all respects, the negotiators found a way to lay down a large degree of flexibility in the provisions of the Agreement without impinging on the effectiveness of the protection to be accorded to geographical indications registered internationally.
Yet, as we all know, in the first four decades of its existence the Lisbon Agreement attracted but a small number of Member States. Several countries, although keen to improve protection for their geographical indications in foreign countries, negotiated – instead of acceding to Lisbon – a range of bilateral agreements, exchanging lists of geographical indications to be protected.
Moreover, three attempts were made in WIPO in that period to arrive at a new system for the international registration of geographical indications, namely in the mid-70s, in the early 80s and in the early 90s. The aim was, obviously, to create a system that would have a much wider geographical coverage. All three attempts remained unsuccessful.
Also in the context of the WTO it has, to date, not been possible to establish an international registration system for geographical indications, as called for by the TRIPS Agreement and the Doha Development Agenda.
Meanwhile, since 1997, we have witnessed 10 new accessions to the Lisbon Agreement, of which 6 since 2004. In addition, several other countries have approached WIPO for information on the Lisbon system, as they are in the process of looking into possible accession.
Is this renewed interest in the Lisbon system surprising? We in WIPO believe it is not, for two main reasons.
In the first place, since the entry into force of the TRIPS Agreement, an ever growing number of countries have taken an interest in the issue of geographical indications beyond the adoption of TRIPS-consistent legislation on geographical indications. Moreover, it is clear that, given the importance of product differentiation as a means to attract customers in today’s globalized and highly competitive market, apart from trademarks, geographical indications have a vital role to play in conveying to the consumer a product’s value-added, which may consist of a certain quality or other characteristics that make the product in question more attractive among competing products on the market.
Many of these countries have established national registration systems for geographical indications and started to promote the use of these systems. And, in doing so, many have opted to focus on the delimitation of the relevant area on the basis of criteria that correspond rather to those stipulated for appellations of origin as defined in the Lisbon Agreement than those stipulated for geographical indications in the TRIPS Agreement. Over 70 countries appear to have a definition in their law that corresponds to that of the Lisbon Agreement.
In this connection, it may be noted that, while unfair competition actions have been available everywhere since long to deal with the misappropriation of geographical indications, they have not obviated the need for additional systems aimed at providing the necessary transparency through ex ante recognition of what precisely is protected and how.
The second reason why we do not find the renewed interest for the Lisbon system surprising lies in the fact that many geographical indications in the countries in question concern products other than wines or spirits. Although WTO Members have an obligation under the TRIPS Agreement to protect such geographical indications, subject to the possible application of any of the exceptions stipulated in the Agreement, they are not obliged to provide the higher level of protection that the TRIPS Agreement prescribes in respect of geographical indications for wines or spirits. The Lisbon Agreement applies equally to appellations of origin in respect of whatever category of product, requiring Member States to ensure protection against “any usurpation or imitation, even if the true origin of the product is indicated or if the appellation is used in translated form or accompanied by terms such as “kind”, “type”, “make”, “imitation”, or the like.”
Recent experience under the procedures of the Lisbon Agreement shows that the provisions of the Agreement are indeed fit to allow for the flexible interpretation that its negotiators had in mind and for the introduction of new procedures in the Regulations, without impinging on the effectiveness of the protection to be accorded to geographical indications registered internationally. As a result, many criticisms advanced with respect to the Lisbon system over the years should be considered vanished.
Protection of geographical indications at national and regional levels is characterized by the existence of a variety of different legal concepts. Those concepts were developed in accordance with different national legal traditions and within a framework of specific historical and economic conditions. These differences have a direct bearing on important questions such as conditions for protection, entitlement to use and scope of protection. As work in the WTO under the TRIPS built-in agenda on geographical indications and discussions in WIPO’s Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications over the past couple of years have shown, this variety in protection systems has remained also after the obligations entered into force that many countries have under the TRIPS Agreement to protect geographical indications as defined in that Agreement.
The Lisbon system, as it was conceived by its founding fathers, is based on a flexible approach under which this variety is recognizable.
But, as the Forum of the past two days has made clear, work remains to be done.
It is for that reason that the Lisbon Union Assembly, last month, decided to establish a Working Group responsible for exploring possible improvements to the procedures under the Lisbon Agreement. The first meeting of this Working Group will be scheduled in March 2009. It will bring together Lisbon Union Member States and other Member States of WIPO as observers as well as certain organizations with observer status in WIPO.
The negotiators of the Lisbon Agreement have taught us back in 1958 that it is possible to get to a result that combines effective protection beautifully with flexibly applicable exceptions.
Minister Costa, it is a great pleasure for me to be able to say, here and now – at this commemoration ceremony for the 50th anniversary of the Lisbon Agreement – that the future of Lisbon appears to bode well. Let us get on with the work on a renewed Lisbon!