TPP’s Coup de Grâce: How the Trademark System Prevailed as Geographical Indication System

Abstract

In the struggle for supremacy between two diametrically opposed systems to protect Geographical Indications (GIs), the Trans-Pacific Partnership Agreement (TPP) gives the decisive push in favour of the trademark system. This has profound implications for generic geographical names, not only for TPP members, but also for their trade partners. Appellation d’Origine Contrôlée (AOC), Lisbon Agreement, EU’s Protected Designation of Origin (PDO) and Protected Geographical Indication (PGI) regime and the Geneva Act of the Lisbon Agreement set up sui generis registration systems in order to protect the AOs, PDOs/PGIs and GIs against confusion, dilution, deception and usurpation. These sui generis systems have a shield against becoming generic in common. The question is whether the maximalist doctrine for multilateral treaties have reached its zenith with the Geneva Act of the Lisbon Agreement. Since this multilateral treaty allows intergovernmental organizations to become members, the EU could drastically change the significance of this sui generis system. Then again, the TPP suggests that the pendulum is swinging back for multilateral treaties towards a trademark dominated GI system that protects non-wines and spirits against confusion, dilution and deception, but not against usurpation. By demanding that TPP members be able to protect GIs via trademarks, Article 18.19 TPP gave a deathblow to any exclusive sui generis regime. Nevertheless, a fortiori, the battle for hegemony of the sui generis or trademark system will continue along the vault line of the Old and New Worlds at the level of bilateral free-trade agreements and specific GI agreements.