Protection of Geographical Indications in ASEAN countries: Convergences and challenges to awakening sleeping Geographical Indications

• Author: Delphine Marie‐Vivien
• Date: 01 July 2020
• Published date: 01 July 2020
• DOI: http://doi.org/10.1111/jwip.12155

J World Intellect Prop. 2020;23:328–349.wileyonlinelibrary.com/journal/jwip328

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© 2020 John Wiley & Sons Ltd

DOI: 10.1111/jwip.12155

ORIGINAL ARTICLE

Protection of Geographical Indications in

ASEAN countries: Convergences and challenges

to awakening sleeping Geographical Indications

Delphine Marie‐Vivien

1,2

1

CIRAD, UMR Innovation, Montpellier, France

2

INNOVATION, Univ Montpellier, CIRAD,

INRAE, Institut Agro, Montpellier, France

Correspondence

Delphine Marie‐Vivien, CIRAD, UMR

Innovation, Montpellier, France.

Email: delphine.marie-vivien@cirad.fr

Abstract

Geographical indications (GIs) that identify products of

origin were born in Southern Europe and extensively

internationalized thanks to the World Trade Organization

1994 Trade Related Aspects of Intellectual Property Rights

Agreement. This paper investigates how GIs have

developed in ASEAN and Asia, the most active new area for

GIs worldwide. We explore the different legislations and

their practical implementation in eight out of 10 ASEAN

countries with a sui generis system (Vietnam, Cambodia,

Thailand, Indonesia, Malaysia, Laos, Singapore, Myanmar);

and in India and Japan, two Asian countries with active

GI policies. Building on a comparative analysis of these

countries and the EU regulations on GIs, this paper focuses

on the following aspects of the GI system: the sui generis

institutional system and the kind of goods protected by GIs,

the scope of protection against misuses, the nature of the

applicants, and the nature of control of the GI before and

after registration. The paper then identifies convergences

and shared challenges and recommends some strategies to

ensure the success of GIs in Asia. The main challenges

shared by Asian countries concern the numerous registered

GIs that are not used on the market, that is, they are

Sleeping Beauties waiting to be awakened. This is explained

by the convergence among ASEAN and Asian countries to a

top‐down state‐driven approach. To move forward, we

recommend more involvement of collective organizations

to bring together value chain stakeholders who should play

a central role in drawing up and managing GIs.

KEYWORDS

ASEAN, Asia, geographical indications, governance, protection,

sleeping beauty

1|INTRODUCTION

A geographical indication (GI) identifies a good as originating in a place where a given quality, reputation, or any other

characteristic of the good is essentially attributable to its geographical origin.

1

GI modern legal protection started in

southern Europe in the early 20th century and has expanded remarkably worldwide since the implementation of the

World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS

Agreement 1994) that includes a chapter on GIs.

2

WTO Governments, producers, and development projects are

attracted by the benefits of GIs, which promote the diversity of agricultural products, food, and handicraft goods linked

to the socioeconomic dynamics of the regions in which they are rooted (Bowen, 2010). GIs achieve thi s by protecting

producers against unfair competition and misappropriation, protecting consumers against a misleading description of

the origin of the product, by supporting rural development and preserving biodiversity and traditional knowledge

(Barham & Sylvander, 2011; Crespi & Marette, 2003; Rangnekar, 2004). The remarkable expansion of GI protection is

particularly noticeable in Asia and ASEAN (Association of Southeast Asian Nations), where there are many origin

products. Even though many ASEAN countries had unfair competition laws, consumer protection laws, food standards

and even appellation of origin before joining TRIPS, in many cases, joining the WTO offered an opportunity to introduce

new legal protection schemes for GIs, following the 1995 ASEAN Framework Agreement on Intellectual Property

Cooperation.

3

Since then, Asian and ASEAN countries have been actively involved in identifying and registering GIs as a

tool to expand their presence on domestic and international markets. In Asia, GIs capture the public imagination

because they seem to correspond to ground realities (Feuer, 2020). Indeed, in January 2020, more than 400 GIs were

registered in ASEAN countries (135 in Thailand, 93 in Indonesia, 86 in Malaysia, 84 in Vietnam, 4 in Cambodia, 1 in

Laos), 79 in Japan,

4

and 361 in India,

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evidence for the interest of Asian countries in GI protection, considering the short

life span of national legal frameworks (see Table 1). Some renowned examples of GIs from Asia are Darjeeling Tea

(India), Khao Hom Mali Thung Kula Rong‐Hai (fragrant rice) (Thailand), Kampot Pepper (Cambodia), Nuoc Mam Phu

Quoc (fish sauce) (Vietnam), Kobe Beef (Japan), Sarawak Pepper (Malaysia), Arabica Gayo coffee (Indonesia). The most

emblematic of them are protected in the European Union (EU), which was achieved using the regular procedure of

applying to the Directorate General of Agriculture of the EU Commission who examines and registers the GI if it fulfills

the conditions of the EU GI Regulations (qualitative link with the place of origin and control mechanisms).

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Asian and

ASEAN countries also protect their GIs on foreign marketst hrough Free Trade Agreements (FTAs), such as EU‐Vietnam,

EU‐Japan, EU‐South Korea, EU‐Singapore, ASEAN‐Japan, Malaysia‐Chile, ASEAN‐Australia‐New Zealand, Vietnam‐

Mexico FTAs. Asian and ASEAN countries are also involved in the Doha Development Agenda, including negotiations

for the extension of the protection of GIs to products other than wines and spirits provided for in Article 23 of TRIPS.

7

Finally, in 2018, Cambodia was the first country to join the Geneva Act of the Lisbon Agreement on appellations of

origin and GIs of 2015 (Gervais & Slider, 2017;Geuze,2016), which provides producers of quality, origin‐linked

products with faster and cheaper access to international protection for their products’distinctive designations.

8

Despite encouraging domestic and international developments, with Asia and ASEAN becoming one of the

most active areas for the protection of GIs in the world, very few studies have examined the Asian way of protecting

GIs at regional level. Some scholars investigated GI protection scenarios at country level in the

Asia‐Pacific region (Calboli & Wee Loon, 2017), in Cambodia (François & Prak, 2006), Thailand (Lertdhamtewe, 2014;

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