GEOGRAPHIC INDICATIONS
in the country as per Decree no 1,355 of 1994. With regard to geographic indications, Article 22 of the agreement establishes a standard level of protection for all products, in order to prevent unfair competition and misleading behaviour.
Article 23 provides a stronger level of protection for geographic indications
related to wines
and spirits, protected even if the infringement does not mislead the public: “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.”
In addition to that, in order to facilitate the protection of indications regarding wines, the agreement establishes that “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”. Te negotiations towards such multilateral system are far from finished. Finally, Article 24 of
the TRIPS agreement provides for several exceptions.
Article 24.4 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 April 15, 1994, or (b) in good faith preceding that date.
Article 24.6
Nothing in this section shall require a member to apply its provisions in respect of a geographical indication of any other member with respect
“THIS IMPORTANT DECISION SHOWS HOW SERIOUSLY THE COUNTRY IS TAKING THE PROTECTION OF GEOGRAPHIC INDICATIONS, NOT ONLY TO COMPLY WITH INTERNATIONAL OBLIGATIONS, BUT ALSO IN VIEW OF THE NATIONAL INTEREST.”
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.
In light of the present factual circumstances and the current legal framework in Brazil, in 2011 our firm filed on behalf of the CIVC a request before the INPI to have champagne recognised as a geographical indication in the country. Even though a local winery—the only one that insisted on using the term champagne as a synonym of sparkling wine—filed in opposition, the INPI decided to grant our request, arguing that the 1975 Supreme Court decision, issued in light of previous legislation that is no longer in force, is not an obstacle for the recognition of champagne as a designation of origin, as supported by Section 4 of the Madrid Agreement.
Te INPI also established that the local regulation creating technical standards to allow a wine producer to call its products champagne are simply
minimum
standards and not a free pass allowing every producer that complies with such conditions to use the term champagne.
Tis important decision shows how seriously the country is taking protection
of the geographic indications,
not only to comply with international obligations, but also in view of the national
56 World Intellectual Property Review Annual 2013
interest. Te agricultural business is absolutely essential for the Brazilian economy, and the country has huge potential to develop and profit from national geographic indications.
Te INPI has already granted registration for several local geographic indications, such as Regiäo do Cerrado Mineiro, in the state of Minas Gerais, where coffee is produced; Vale dos Vinhedos and Pampa Gaúcho, both in the south, respectively famous for their wine and beef; Paraty and Salinas, in the states of Rio de Janeiro and Minas Gerais, where cachaça, the national drink, is produced; Porto Digital, in the north east, where IT services are provided; and many others, where products such as rice, fruits, leather, shrimp, candy, handmade art products, pottery, cheese, shoes, jewellery, marble, and biscuits are made.
Te recent decision recognising champagne as a geographical indication is another sign that the Brazilian government will continue its efforts to improve the protection of IP rights in the country.
Luiz Leonardos is chairman of Luiz Leonardos & Cia. He can be contacted at:
lleonardos@llip.com
Ricardo Dutra Nunes is a partner at Luiz Leonardos & Cia. He can be contacted at:
rnunes@llip.com
Since the late 1950s, Luiz Leonardos
has helped shape Brazil’s He
IP scenario. founded Luiz
Leonardos Advogados after Momsen Leonardos & Cia ceased its
activities in April 2012. His notable career in IP is widely recognised in Brazil and abroad. Legal excellence makes him one of the most respected IP practitioners of his generation.
Ricardo Dutra Nunes has an LLM degree in IP Law, summa cum laude, from Te George Washington University Law School. He is admitted
to practise law in Brazil and passed the NY State Bar examination in July 2012 (awaiting admission).
www.worldipreview.com
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