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Geographical Indications: a Great Opportunity to Foster Trade And © COPYRIGHT by Jesus Bores-Lazo 2016 ALL RIGHTS RESERVED Dedicated to my wife, Juana, our children—Juana, Julia, Jesus, Jimena, and Juncal—and to our families for their love and support. Life has been very generous to me mainly because of you. Research has taken much of our time together but never forget to listen, study, work hard, travel, and learn, using your knowledge and capacities to be happy, good people, and restless dreamers permanently inspiring those around you—no matter how far they might be or how different they are—sharing values, ideas and actions. GEOGRAPHICAL INDICATIONS: A GREAT OPPORTUNITY TO FOSTER TRADE AND DEVELOPMENT UNDER THE TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP AND THE TRIPS AGREEMENT. THE CASE OF BELIZEAN BANANAS BY Jesus Bores-Lazo ABSTRACT Geographical Indications (GIs) are a major intellectual asset as a tool for ensuring the benefits and distinctiveness of unique agricultural products while protecting consumer interests. Furthermore, GIs—as indicators of quality, reputation, and other characteristics linked to origin—serve as a legal and economic mechanism for development, market access, local distribution of added value, preservation of diversity and cultural heritage, and environmental sustainability. Recent inclusion of GIs regulations within important trade agreements signed by the European Union (South Korea, Central America and Canada), announce a very interesting negotiation under the Transatlantic Trade and Investment Partnership Agreement (TTIP) with the United States and the revision of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement). Based on the complexities of existing models for the protection of agricultural products through traditional trademarks or a sui generis GI system, this research provides a new concept of GIs protection including certification, registration, fair trade, and the interest of developing countries to overcome the current legal schemes. ii PREFACE “EACH AGE HAS ITS OWN CHALLENGE. Our world of today in a fast moving, rapidly expanding society in a great process of transition, with the challenge of recognizing the rising demands of people everywhere to a decent standard of living, and to the full recognition of their dignity and their worth as human beings. We are witnessing in recent years a metamorphosis of our world due primarily to the surging tides of technology and the practical applications of vast developments in scientific knowledge. And this is probably still the beginning. Science forges ahead in a hundred directions. The results of researches in inventions feed upon each other continuously and synergetically to enlarge the whole. Human ingenuity and intelligence in engaged in the highly rewarding and at the same time spiritual endeavor to relieve human hardship, liberate the human spirit and provide for conditions of enjoyment of life. This endeavor must reach affluent and poor peoples alike. Failure to extend the benefits of technology and science to large parts of the world is not only morally wrong, but in the long run it denies to the total system its ultimate fulfillment. Prosperity like peace is indivisible. The accelerated pace of the West’s own economic progress could be nullified by the failure of the rise in the standard of living of the larges part of the world.” Stephen P. Ladas1 (father of U.S. Trademark Law). 1 Stephen P. Ladas, Existing Uniformity of Industrial Property Laws and Revised Patent of Introduction: Means for Transfer of Technical Information to Less Industrialized Countries, 12 IDEA 163, 163 (1968). iii ACKNOWLEDGMENTS I would like to sincerely thank my faculty adviser, Christine Farley, for her guidance, encouragement and support. Prof. Farley guided me with her deep understanding of industrial property law, and her global and practical views, as well as her expertise and knowledge on the United States legal system. My gratitude must be extended to Alberto Díaz Moreno, Jonas Anderson and José Carlos Vázquez Cueto who provided me with helpful assistance, comments, and insights to develop the research. Thanks also to Fernanda Nicola, Padideh Ala’i, and Elisa Alonso for their precious observations. I also wish to sincerely thank the Pence Law Library (particularly John Heywood and Bill Ryan) and the Sevilla University Law Library (especially Ana Isabel Moreno and Pilar Romero) who provided me everything that was needed for my research. Special gratitude to my research companions Cristiane Dias, Abdulmajed Alrajhi, and Young (Maxwell) Joo, for their friendship and support. To Chelsea Zimmerman, I wish to convey my deep appreciation and thanks for editing and discussing this dissertation. Brussels, Washington D.C., and Belize provided me contacts, data, and experiences while working with Alessandro Petrini and Fiorentino Delogu (PROATEC), the European BAM Program, and international organizations such as the European Union, UNDP, OSCE, IADB, World Bank. I really appreciate the experiences shared with outstanding international experts, such as Cesar Saldaña, Edith Flores, Palmira López-Fresno, Dominique David, Carlos Gauggel, Gabriel Fernández, Valentín Diaz, Roberto Alfonzo, Theresa Francis, Pawel and Izabela Strzelecka, Joern Doesch, and John Briggs. iv As a lawyer, professor, and international consultant, my professional life and passion for justice, trade, and development is due to my father, Jesus Bores Saiz. Of course, there are other great people as well, specifically Guillermo Jiménez Sánchez as a unique intellectual reference but also Juan Antonio Carrillo Salcedo, Jose Manuel Peláez Marón, Javier Puech Suances, Carlos Camacho Gaos, Juan Ramón Iturriagatoitia, Enrique Sánchez, Ulf Renzenbrink, Telmo Baltazar, Cristina Lobillo, Cristina Miranda, Jose María Cueto, Asko Linqvist, Pilar González, Magdalena Requena, and Ignacio Gallego Jiménez. Thanks also to the American University Washington College of Law, the University of Seville, the Maastricht University, the Europaische Recht Academie and other institutions that provided me the opportunity to learn from great professors and belong to the global research community. Naturally, I take full responsibility for any errors or omissions and the views expressed herein are my own. v TABLE OF CONTENTS ABSTRACT ............................................................................................................................... ii PREFACE ................................................................................................................................ iii ACKNOWLEDGMENTS ............................................................................................................ iv LIST OF FIGURES ................................................................................................................... xii LIST OF TABLES ..................................................................................................................... xiii LIST OF ACRONYMS .............................................................................................................. xiv CHAPTER 1: INTRODUCTION ................................................................................................... 1 1. WORKING AND RESEARCH HYPOTHESIS .................................................................................... 6 2. SCOPE AND LIMITATIONS IN THE DISSERTATION ....................................................................... 8 3. RESEARCH METHODOLOGY ....................................................................................................... 9 CHAPTER 2: REGULATION AND IMPORTANCE OF GEOGRAPHICAL INDICATIONS AND GLOBAL DEVELOPMENT ..................................................................................................................... 11 1. A LEGAL CONCEPT COMPELLING US TO THINK GLOBALLY AND ACT LOCALLY .......................... 11 1.1. Legal Concepts of Geographical Indications .............................................................. 17 1.2. Quality and The “Market for Lemons”: GI Economic Theories and Value ................. 30 1.3. The Value of GIs and Potential Opportunity for Developing Countries ..................... 44 1.4. Complexities Deriving from Lack of Consensus on GI Concept in a Globalized but Legally Fragmented World ................................................................................................................ 50 2. INTERNATIONAL REGULATION ON GIS .................................................................................... 53 vi 2.1. GIs Under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) ............................................................................................................................ 55 2.1.1. Legal Concept of GIs under the TRIPS Agreement ............................................................ 58 2.1.2. Negotiations and Proposals to Reinforce the Global System of GI Protection ................. 62 2.2. International Conventions Regulating GIs ................................................................. 66 2.2.1. The 1883 Paris Convention for the Protection of Industrial Property .............................. 68 2.2.2. The 1891 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods 70 2.2.3. The Madrid System for the International Registration of Marks Governed by The 1891 Madrid Agreement Concerning the International Registration of Marks and the 1989 Protocol Relating to that Agreement 71 2.2.4. The 1929
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