Conflicts Between U.S. Law and International Treaties Concerning Geographical Indications

It should not be surprising that the United States is not a major proponent of the protection of geographical indications. Countries that stand to benefit the most from this protection are those that have a long history of traditional industries, such as many European countries. These historical differences may help explain the stance that the United States has taken with regard to the protection of geographical indications, as compared to its stance towards other intellectual property rights negotiated in TRIPs Agreement. But the inability of the U.S. to benefit to the same extent as European countries, because of its apparent dearth of traditional industries, does not fully explain U.S. resistance to the protection of geographical indications. Instead, the discord is of a more fundamental nature having to do with the basic approach each continent takes to trademark law. Since the earliest days in Europe, geographical indications were used to protect certain industries. As local reputations grew for certain products, use of the place names became attractive. To some extent such markings served as a warranty for the quality of the goods. To ensure the locale\u27s reputation, the local industry would agree to certain standards of production. The granting of a right to use a geographical term associated with particular goods exclusively to the producers within a certain region served to limit competition, especially from producers outside that region. This purpose is in contrast with the theory behind the prohibition of uses of false indications of origin in the United States. In the U.S., such use is prohibited not to protect an industry, but to protect the consumer against any resulting deception. In the U.S., generally speaking, there are no rights in a term or sign until that term or sign has become distinctive in the minds of the relevant consumer as an indicator of source. Thus, we are reluctant to view these types of terms as conveying any kind of property rights in and of themselves before they have been invested with meaning resulting from use in commerce.https://papers.ssrn.com/sol3/papers.cfm?abstract_id=121806