Consequences of Extension of Protection

It is not quite simple that the protection can be extended to all GIs in the case of developing nations. One has to understand the consequences of the extension of protection in the context of the economic standing of the developing nations, as it would entail substantial legislative and administrative costs to the developing countries concerned. The effect of such extension is that if a developing country has no or only a few GIs of its own, the country would have the obligation to protect a number of GIs from other member nations whether the country likes it or not in the light of the legislative and administrative costs involved.

The following examples may illustrate the magnitude of the issue: In Australia there is the protection for just less than 80 Australian wine GIs. But in the case of European wines there are more than 4500 of them enjoying the protection of GI. If protection is offered in its fullest extent the developing countries would end o protecting a few of their GIs while extending protection to more than thousands of European GIs.

The implementation of the TRIPS would get more and more complicated by amending the TRIPS Agreement to this effect and it would directly hit the developing countries, as they are the ones who have been forced to implement TRIPS Agreement since the year 2000. This will also have the effect of requiring those countries in which legislative measures were taken recently for compliance may have to consider major changes to their domestic regime in quick succession.

This again would involve considerable additional legislative and administrative costs. A major impact of the extension may be the requirement that the countries which have been producing certain goods under particular names may have to give up those names. This would result in: Confusion caused by unfamiliar terms cropping in on the elimination of the familiar terms and would also increase the costs to consumers and also

The producers who were hitherto marketing the products without names can no longer do so and this will imply some trade implications for them. There would be additional costs to establish new brands, promote them especially in export markets with no tangible benefit to the traders in the short run. There would also arise chances of more disputes between different members of WTO who claim same GI and also between the various producers in various WTO member countries over the possession and application for geographical indications.

Another major area of concern in the matter of implementation of TRIPS that is being considered is the inclusion of ‘disclosure requirements’ as a part of the TRIPS Agreement itself. Requirements for the disclosure of origin and legal provenance of genetic resources and additional knowledge in intellectual property applications are currently offered as the most transparent and practical solution to generate positive synergies and mutual support under the TRIPS Agreement.

TRIPS Agreement through the disclosure requirements wants to generate mutual support between the member nations by providing access and the benefit sharing and protection of traditional knowledge among the countries. The concept of the disclosure requirements has been put to test by a number of technical and academic studies as to the assessment of the legal viability and validity of the requirements in the context of international intellectual property law and the prescription of TRIPS.

There are different views on the disclosure requirements; some advocating the use of legal provenance as the basis for disclosure while some others prefer the geographical origin as the means through which the objectives of the international intellectual property law and the TRIPS Agreement. However there are certain legal issues concerning the disclosure requirements irrespective of the means being used which have practical implications in developing countries. Some of the legal and policy issues that may arise are:

.The prospective role of the patent system in controlling shaping up the contracts, licensing arrangements and integration with other areas of legislative measures and jurisdictions in practice in the country. The issues may also relate to the resolution of selecting the particular international law or other choice of law regarding the determination of and application of jurisdictions of contractual obligations in the use of Genetic rights and traditional knowledge.

Issues relating to nature of disclosure obligation to decide whether the mechanism will represent the one to control the monitoring of compliance with other laws and regulations by making the disclosure transparent or the law should also provide for the compliance also. “The ways in which patent law and procedure can take account of the circumstances and context of inventive activity that are unrelated to the assessment of the invention itself and the eligibility of the applicant to be granted a patent” (Daniel Gravis)