WORLD INTELLECTUAL PROPERTY RfiPUBLIQUE FRANCAISE

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1 WORLD INTELLECTUAL PROPERTY RfiPUBLIQUE FRANCAISE ORGANIZATION SYMPOSIUM ON APPELLATIONS OF ORIGIN AND INDICATIONS OF SOURCE organized by the World Intellectual Property Organization (WIPO) in cooperation with the National Institute of Industrial Property (INPI) of France Bordeaux, November 3-5, 1988 GENEVE 1989

2 PUBLICATION WIPO No 669 (E) ISBN OMPI 1989 The cover photograph shows the Palais de la Bourse of Bordeaux where the Symposium was held and was supplied by the Bordeaux Chamber of Commerce.

3 FOREWORD This publication contains the texts of the lectures given at the Symposium on Appellations of Origin and Indications of Source held in Bordeaux from November 3 to 5, The Symposium was organized by the World Intellectual Property Organization (WIPO) in cooperation with the National Institute of Industrial Property (INPI) of France. The subject of the Symposium was the national and international protection of appellations of origin and indications of source (for natural and industrial products) and the contribution that such appellations of origin and indications of source can make in the marketing of various products, particularly from developing countries, both at home and abroad. Some 80 participants attended the Symposium from both the public and private sectors in Africa, Latin America, Asia and Europe. Lectures were given at the Symposium by eminent specialists from Cote d'lvoire, Cuba, France and India. I take advantage of the publication of these texts to express again the gratitude of WIPO towards the French authorities particularly the National Institute of Industrial Property (INPI) and the authorities of the City of Bordeaux for their cooperation in the organization of the Symposium and towards the Bordeaux Chamber of Commerce and Industry for having made available its excellent facilities. Arpad Bogich Director General World Intellectual Property Organization (WIPO) Geneva, May 1989

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5 TABLE OF OMITS pages Program of the Symposium 5 The Lecturers of the Symposium Biographical Information 7 Opening Address by Dr. Arpad BOGSCH, Director General, World Intellectual Property Organization (WIPO) 11 General Introduction to the Protection of Appellations of Origin and Indications of Source, by Mr. Jean-Claude COMBALDIEU, Director General, National Institute of Industrial Property (INPI), Paris 15 International Treaties Relating to Appellations of Origin and Indications of Source, by Mr. Ludwig BAEUMER, Director General, Industrial Property Division World Intellectual Property Organization (WIPO) 21 The Protection of Appellations of Origin and Indications of Source of Cote d'lvoire (in particular, those relating to coffee), by Mr. Atse Prosper KOUASSI, Technical Deputy Director, Agency for Stabilization and Support of the Prices of Agricultural Produce, Abidjan 39 The Protection of Appellations of Origin relating to Wine in the Member States of OIV, by Mr. Robert TIMLOT, Director of the International Office of Vine and Wine (OIV), Paris 57 The Protection of Appellations of Origin and Indications of Source of Cuba (in particular, those relating to tobacco), by Mr. Adargelio Garrido DE LA GRANA, Barrister, Empresa Cubana del Tabaco, Havana 73 The Protection of Appellations of Origin and Indications of Source of India (in particular, those relating to tea), by Mr. Prateep Kumar DAS GUPTA, President, Upohar International Pvt. Ltd., Bombay 83

6 page 4 pages The Protection of Appellations of Origin and Indications of Source in France, by Mrs. Dominique FILHOL, Senior Inspector, Directorate General for Competition, Consumption and Repression of Fraud, Ministry of Economy, Finance and Budget, Paris 93 The International Protection of Appellations of Origin Related to Wines and Spirits, by Mrs. Marie-Helene BIENAYME, Head of Legal and Foreign Division, National Institute of Appellations of Origin for Wines and Spirits, (INAO), Paris 105 List of participants 120 ******

7 page 5 PROGRAM Thursday, November 3, Registration Opening ceremony. Opening address by Dr. Arpad Bogsch, ^ Director General of WIPO. Welcoming address by the Representative of the French Government General introduction to the protection of appellations of origin and indications of source Coffee break Presentation by Mr. Jean-Claude Combaldieu, Director General, National Institute of Industrial Property (INPI), France International Treaties Relating to Appellations of Origin and Indications of Source Discussion Presentation by Mr. Ludwig Baeumer, Director, Industrial Property Division, WIPO The Protection of Appellations of Origin and Indications of Source of Cote d'lvoire (in particular, those relating to coffee) Presentation by Mr. Atse Prosper Kouassi, Technical Deputy Director, Agency for Stabilization, '* Cote d'lvoire The Protection of Appellations of Origin relating to Wine in the Member States of OIV Presentation by Mr. Robert Tinlot, Director of the International Office of Vine and Wine (OIV), France Coffee break Discussion 18>3 Reception offered by WIPO

8 page 6 Friday, November 4, The Protection of Appellations of Origin and Indications of Source of Cuba (in particular, those relating to tobacco) Presentation by Mr. Adargelio Garrido de la Grana, Empresa Cubana del Tabaco, Cuba The Protection of Appellations of Origin and Indications of Source of India (in particular, those relating to tea) Presentation by Mr. Prateep Kumar Das Gupta, President, Upohar International Pvt. Ltd., Bombay Coffee break Discussion i The Protection of Appellations of Origin and Indications of Source in France Presentation by Mrs. Dominique Filhol, * Senior Inspector, Directorate General for Competition, Consumption and Repression of Fraud, Ministry of Economy, Finance and Budget, Paris The International Protection of Appellations of Origin Related to Wines and Spirits Coffee break Presentation by Mrs. Marie-Helene Bienayme, Head of Legal and Foreign Division, National Institute of Appellations of Origin for Wines and Spirits (INAO), France General Debate and closing of the Symposium Reception offered by the French Authorities * Saturday, November 5, 1988 Excursion to St-Emilion. i

9 page 7 THE LECTURERS AT THE SYMPOSIUM ON APPELLATIONS OF ORIGIN AND IlICATIONS OF SOURCE Note prepared by the International Bureau of the World Intellectual Property Organization This Note contains information on each of the eight lecturers at the Symposium on Appellations of Origin and Indications of Source. They are listed in the order in which they lectured.

10 page 8 JEAN-CLAUDE COMBALDIEU Jean-Claude Combaldieu, citizen of France, is the Director General of the National Institute of Industrial Property (INPI), France. He studied in Paris where he graduated as an engineer from the Ecole centrale des Arts et Manufactures. He also holds a degree in law. After having worked as an engineer with the Saint-Gobain Company, he practised as an industrial property consultant before joining, in 1968, the National Research Development Agency (ANVAR) to become Director of Industrial Agreements. In 1981, he joined INPI as Deputy Director and became its Director General in He acts as industrial property expert for the Court of Cassation and is also the French representative in the Administrative Council of the European Patent Organization (EPO) where he was also Chairman of the Budget and Finance Committee from 1985 to He is also Administrator at the Center for International Industrial Property Studies in Strasbourg (CEIPI). LUDWIG BAEUMER Ludwig Baeumer, citizen of the Federal Republic of Germany, is Director of the Industrial Property Division of the World Intellectual Property Organization (WIPO). His responsibilities include the drafting of new industrial property treaties and the revision of existing treaties, the legal study of industrial property matters and the drafting of legislative and regulatory texts at the request of governments. Before joining the Organization, in 1968, he was a scientific member of the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich, and Deputy Section Head at the Bavarian Ministry of Finance. He is a Doctor of Laws of the University of Miinster and a Master of Laws of the University of California at Berkeley. ATSE PROSPER KOUASSI Atse Prosper Kouassi, citizen of Cote d'lvoire, is Deputy Technical Director of the Agency for Stabilization and Support of the Prices of Agricultural Produce in Abidjan. He is a graduate of the Faculty of Science of the University of Abidjan. He also graduated as an agricultural engineer from the National School of Agriculture in Abidjan. He holds a Master of Science degree from the University of Illinois.

11 page 9 He held posts in the Directorate of Statistics of the Ministry of Agriculture and then in the Office of the Minister for Agriculture, as Head of the Planning Office, prior to joining the Stabilization Agency. ROBERT TINLOT Robert Tinlot, citizen of France, is Director of the International Vine and Wine Office (OIV), France. He was elected to this post in 1985, on a proposal by the French Government, by the General Assembly of the 33 member countries of the Office. He took up his duties on January 1, As General Inspector for the Repression of Fraud at the Ministry of Economy and Finance, he has long experience in the field of wines, having held the posts of Head of Legal Affairs in the Appellations of Origin Control Service, Head of the Wine Office in the Ministry of Agriculture and Deputy to the Director of Consumption and Repression of Fraud. As a member of the Industrial Property Council, he participated in the most recent Diplomatic Conference for the Revision of the Paris Convention for the Protection of Industrial Property. In addition to his administrative tasks, he teaches wine law at the Institute of Rural Law in Paris, at the Faculty of Law of Aix-en-Provence and at the University of Bordeaux. ADARGELIO GARRIDO DE LA GRANA Adargelio Garrido de la Grana, citizen of Cuba, is a lawyer with the Empresa Cubana del Tabaco (Cubatabaco), a firm that is responsible for centralizing exports of Cuban tobacco. As a lawyer, tie deals with the defense of trademarks and appellations of origin affecting Cuban cigars. He graduated in law from the University of Havana in 1982 and has specialized since 1985 in foreign trade and industrial property. PRATEEP KUMAR DAS GUPTA Prateep Kumar Das Gupta, citizen of India, has headed Upohar International Pvt. Ltd. since This company is active in the export of high-quality produce such as packaged tea, tinned fruit, rice, spices, meat and frozen fish. Following studies at Cambridge and Calcutta, he assumed commercial functions in numerous firms specialized in either tea or tobacco; since 1975 he has also assumed board functions in two important national firms, the Tea Trading Corporation of India Ltd. and the State Trading Corporation of India Ltd. He was a member of the Tea Board of India from 1976 to He has also been a member of the Indian delegation at numerous international exhibitions and conferences, particularly at the conferences of tea producer and consumer countries held under the aegis of the United Nations Conference on Trade and Development (UNCTAD).

12 page 10 DOMINIQUE FILHOL Dominique Filhol, citizen of France, is Senior Inspector and Head of the Beverages Office at the Directorate General for Competition, Consumption and Repression of Fraud in the Ministry of Economy, Finance and Budget. The Directorate General for Competition, Consumption and Repression of Fraud is responsible for drafting the texts relating to appellations of origin and for supervising application of the regulations at national level. MARIE-HELENE BIENAYME Marie-Helene Bienayme, citizen of France, has been Head of the Legal and Foreign Division of the National Institute of Appellations of Origin for Wines and Spirits (INAO) since She graduated in private law and public law studies. She was an official of the Ministry of Transport from 1958 to 1966 and subsequently assisted a lawyer at the Council of State and the Court of Cassation from 1966 to She has published various works dealing with appellations of origin, in particular "Le droit des appellations d'origine" - Marques, Dessins et Modeles (Editions Techniques-jurisclasseur) and "La protection internationale des vins et eaux-de-vie" (Report to the National Committee of INAO, 1987). She also contributed to the work published by INAO to celebrate the fiftieth anniversary of that agency (1985): "L1appellation d'origine controlee; une reussite francaise." ****** i

13 page 11 Opening Address by Dr. Arpad Bogsch Director General World Intellectual Property Organization (WIPO) Director General, President, Ladies and Gentlemen, This is the first time that the World Intellectual Property Organization 9 (WIPO) has organized an International Symposium on Appellations of Origin and Indications of Source. Yet WIPO like its predecessor, the United International Bureaux for the Protection of Intellectual Property (BIRPD has long been concerned with the international protection of appellations of origin and indications of source. They are mentioned among the forms of industrial property in the Paris Convention of 1883 for the Protection of 9 Industrial Property, and have been the subject of special agreements, namely the Madrid Agreement of 1891 for the Repression of False or Deceptive Indications of Source on Goods and the Lisbon Agreement of 1958 for the Protection of Appellations of Origin and their International Registration. The subject of this Symposium is of the utmost importance in both 9 economic and cultural terms, for in a great many countries goods marketed with appellations of origin and indications of source account for a not inconsiderable part of the trade balance. These appellations and indications make natural and industrial products the bearers of a certain image on foreign markets. It has been rightly said that they can, in a manner of speaking, constitute a form of cultural identity. In this Symposium, emphasis will be placed among other things on the interests of developing countries, which attach great importance to the protection of their geographical denominations in other words denominations that are or are likely to become appellations of origin for the products of their countries and whose protection is vital to the process of their growth. The speakers who have been invited to take part in this Symposium will therefore be dealing with the national and international protection of appellations of origin and indications of source, and also with their economic impact in both developed countries and developing countries.

14 page 12 I should now like to thank the various speakers who have been kind enough to respond to WIPO's invitation, namely: Mr. Jean-Claude Combaldieu, Director General of the National Institute of Industrial Property (INPI) of France, Mr. Atse Prosper Kouassi, Deputy Technical Director of the Stabilization Fund of Cote d'lvoire, Mr. Robert Tinlot, Director of the International Vine and Wine Office (OIV), Mr. Adargelio Garrido de la Grana, Attorney at the Cuban Tobacco Company, f from Cuba, Mr. Prateep Kumar Das Gupta, Chairman of the Upohar International Company of India, Mrs. Dominique Filhol from the Fraud Department of the Ministry of f Economic and Financial Affairs of France, Mrs. Marie-Helene Bienayme, Head of the Legal and Foreign Division of the National Institute of Appellations of Origin for Wines and Spirits (INAO), from France, and finally my colleague Mr. Ludwig Baeumer, Director of the Industrial Property Division of WIPO. It is also a pleasure and a privilege for me to welcome the participants who have come to this Symposium from most regions of the world. The fact that this first Symposium on Appellations of Origin and 9 Indications of Source is taking place in France and has been organized in cooperation with the National Institute of Industrial Property (INPI) is by no means fortuitous. France has been a pioneer in the definition and protection of appellations of origin; its legislation on the subject has been used by many countries as a guide in the drafting of their own laws. As for WIPO's choice of the city of Bordeaux, it is explained by the fact that the name is associated with a vine and wine tradition of more than a thousand years' standing, a name indeed that is itself an appellation of origin, and one that conjures up an image of quality blended with modernity. Finally, we should not overlook the actual place where we are now gathered: the Place de la Bourse is a jewel of French 18th-century urban architecture, an overall design worthy of admiration and "recommendable to posterity," as its designer, the architect Gabriel, imagined it should be. Allow me to thank the Bordeaux Chamber of Commerce and Industry and its President for having kindly placed this hall at our disposal. Allow me also to thank French authorities and also the City of Bordeaux for the warmth of t their hospitality; all the elements are present that make Bordeaux the most appropriate setting for this important Symposium.

15 page 13 I think all the prerequisites have been fulfilled for this International Symposium on Appellations of Origin and Indications of Source to take place under the best conditions and for the benefit of all. This is my wish on the commencement of your important work in Bordeaux. ******

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17 page 15 INTRODUCTION TO THE PROTECTION OF APPELLATIONS OF ORIGIN AND INDICATIONS OF SOURCE by Mr. Jean-Claude Combaldieu Director General National Institute of Industrial Property Paris, France i

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19 page 17 I am particularly pleased to be opening this Symposium held under the patronage of INPI and WIPO. It affords an opportunity to show that the World Intellectual Property Organization, which has worked very extensively for the protection of industrial property by introducing effective international protection for patents, trademarks and service marks and also copyright, is likewise showing active concern for the protection of appellations of origin. If one follows the course of history from ancient times to the present day, one can observe that a certain number of products, both agricultural and 5 industrial, have acquired their celebrity through the geographical name of the region that they come from. This notoriety is due to man's desire to personalize the products manufactured by himself by means of a readily-identifiable geographical name. This is why history is full of these famous names, such as the wines of Chios 9 or Falernus, the statuettes of Tanagra, the honey of Attica, the incense of Arabia, the purple of Tyre and so on. However, while the concept of the appellation of origin is very ancient, its protection is on the other hand far more recent and has presented a number of problems. Indeed the first legal provisions that were introduced had to do with the ft protection rather of trademarks than of appellations of origin, as some confusion had arisen between the two concepts. History shows us that while it was customary, when presenting products, to mention their place of manufacture, that place was generally mistaken for the mark of the manufacturer or trade-guild concerned. And yet there are fundamental differences between the trademark and the appellation of origin. The purpose of trademarks, whether private or collective, is to personalize and identify products and to influence the customer's choice. Like the other forms of "industrial property" (patents, designs, etc.), the trademark reflects "an effort of human ingenuity or the result of man's domination of matter." The trademark concept is determined solely by man's intelligence, his creative genius and his work, and, unlike the appellation, it is not rooted in the soil or reliant on climatic factors. The trademark t can be completely fabricated and applied to any object by whoever wishes to do so and wherever he wishes to do so. The appellation and the trademark are both names intended to qualify products, but the trademark serves to show what distinguishes the articles sold by one manufacturer or group of manufacturers from those sold by another, t and trademark protection laws provide only for measures of publicity and the repression of third-party action: as the owner of a trademark has an obvious interest in not misusing the trademark, no particular discipline is imposed on him. The appellation of origin shows on the contrary the similarity of a set of products to each other, and their difference in relation to other products which cannot benefit from the appellation.

20 page 18 It embodies an idea of geographical origin, of a demarcated area, which may be part of a county, the county itself, several counties or a region. So all the producers in that area, who produce under conditions that have become established by tradition, may claim the benefit of the appellation, which accounts for the character that it has of a collective right exercised jointly by all the rival producers of one and the same locality. _ Now while in the nineteenth century national legislation paid little heed to the protection of appellations of origin, by the turn of the century things were to change on account of the development of the economic situation. A very considerable increase in well-known products was observed, both in domestic trade and in exports. So inevitably a conflict of interests was bound to develop between, on the one hand, those who wished to preserve the notoriety of a name, achieved through the know-how of local producers and natural factors peculiar to a particular region, and on the other hand, those who sought to take advantage of that achievement and use such a denomination illegally for profit-making purposes alone. f Under pressure from those affected, mainly in agricultural circles, the geographical name concept gradually detached itself from the trademark concept. In particular, a set of provisions to protect geographical names began to evolve as a means of ensuring greater fairness in economic and trade» relations, and protecting both the honest producer and the consumer. It is to be regretted however that the concept was not defined more strictly at the outset. For instance, the Madrid Agreement of April 14, 1981, which is often mentioned as having for the first time introduced international protection for appellations of origin, speaks only, in its title and g Article 1, of the repression of false "indications of source," and its Article 4 includes among the latter "regional appellations concerning the source of products." In France, the Law of August 5, 1908, speaks of "appellations of source." The Law of May 6, 1919, which popularized the expression "appellation of origin," gave no definition of what an appellation of origin actually was. i The "Congres international de la viticulture," organized in July 1937 by the International Wine Office, about which Mr. Tinlot will speak to you at greater length, adopted the following definition for wines: q (1) Natural factors whose role predominates: climater soil type, variety or varieties, exposure; those factors serve to define an area of production that has to be demarcated; (2) Factors due to human intervention, whose role is more or less g important: growing and vinification methods and, for spirits, distillation processes; thus no wine product can enjoy the advantages associated with it unless it at least comes from a specific area of production and specific varieties of grape.

21 page 19 Later, the "Congres de l'origine," which was held in Bordeaux in May 1950, declared the appellation of origin to be indicative of the invariable geographical location of a product and a professional tradition, which together were based on constant local customs, themselves specific and substantial guarantees of quality. Throughout the twentieth century legislation was to be enacted to ensure more and more efficacious protection for the appellation of origin concept. It should be pointed out however that it took until 1958 for the appellation of origin to be given its first legal definition by the Lisbon Agreement. The definition adopted for the Agreement was the following: "In this Agreement, 'appellation of origin1 means the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors." This definition clearly emphasizes what distinguishes the appellation of origin from all other industrial property rights, namely the link between the product and the geographical environment that it comes from. This indeed is where emphasis should be placed: a product with an appellation of origin is a product developed by man, but whose original characteristics are determined by natural conditions that have imposed themselves on man at the time of the product's creation. When you ask for bordeaux, you are asking not only for wine purchased in Bordeaux, but wine whose name conjures up the taste of the wine produced in that region and only in that region; when you ask for roquefort, you are asking for a cheese that has been matured in the cellars of Roquefort and whose taste you have found agreeable; when you buy Vallauris pottery, you want a pottery article that is made with clay found in Vallauris, which accounts partly for the article's appeal. According to Marcel Plaisant, the appellation of origin testifies to something borrowed from the soil or from the surrounding area, reflecting the renown of a work created through the association of work and material, tradition and movement. source. That too is what distinguishes appellations of origin from indications of The indication of source evokes neither the idea of a link between the product and the environment that it comes from nor even, in many cases, a notion of quality. "Appellation of origin" is a. token of quality which consequently certifies, on its own, that a place of production is involved that has a definite value. The indication of source may relate to a place that has no particular reputation with regard to manufacture. It is for that reason that industrial goods were long regarded as not qualifying to be given true appellations of origin.

22 page 20 So, as industrialists were aware that most of the time their manufactures could not bear appellations of origin, they made use of other distinctive signs, which we have mentioned, to distinguish them from those of their competitors. This explains why there have been few appellations of origin in this particular area. Today however, owing to the business conducted at world level, we are witnessing the revival in many countries (Africa, the Soviet Union and China) of a lively interest in geographical names, and not only for agricultural products. A number of those countries have thus introduced or are endeavoring to introduce systems that enable them to preserve the most prestigious geographical names of their States against unlawful appropriation by other countries, which make use of them in or in conjunction with trademarks especially. This explains why discussions are still in progress on the revision of the Paris Convention with a view to securing protection for appellations of origin in its framework. Indeed it seems to me to be very important, now that the EEC wishes to provoke reflection on appellations of origin, now that the Soviet Union is introducing legislation, and now that China and the countries of Latin America and Africa have started to consider the subject, to endeavor to work out the broad lines of an international system for the protection of appellations of origin that could perhaps, one day, be given material form in an international agreement endorsed by the greatest possible number of countries. ******

23 page 21 INTERNATIONAL TREATIES RELATING TO APPELLATIONS OF ORIGIN AND INDICATIONS OF SOURCE by Dr. Ludwig Baeumer Director Industrial Property Division World Intellectual Property Organization (WIPO)

24 page 22 Table of contents Paragraphs I. Introduction 1 to 5 II. The Existing Multilateral Treaties for the Protection of Appellations of Origin and Indications of Source 6. i A. The Paris Convention for the Protection of Industrial Property 6 to 13 B. The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods 14 to 2o C. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 21 to 35 III. Work Undertaken by WIPO with Respect to the Adoption of New Treaty Provisions 36 to 51 A. The Need for New Treaty Provisions 36 to 39 B. The Preparation of a Draft Treaty on the Protection of Geographical Indications An to 44 C. The Introduction of a New Article in the Paris Convention 45 fco 51 IV. Outlook,,, _c 52 to 56

25 page 23 I. Introduction 1. In my presentation of international treaties relating to appellations of origin and indications of source I shall firstly deal with some general considerations and then examine the provisions of the existing multilateral treaties, namely, the Paris Convention for the Protection of Industrial Property, the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration. Finally, I shall explain work undertaken by WIPO with respect to the adoption of new treaty provisions and possible future activities. 2. Appellations of origin and indications of source are objects of industrial property. This is expressly stated in Article 1 of the Paris Convention. However, compared with other objects of industrial property, such as patents, industrial designs and trademarks, appellations of origin and indications of source present a particular feature, namely a relationship with an existing factual situation since they refer to the particular geographical origin of a product. Thus appellations of origin and indications of source, unlike inventions or trademarks, are not creations of fantasy or inventiveness. 3. The following definitions are generally accepted: "indication of source" means any expression or sign used to indicate that a product or service originates in a country, a region or a specific place; "appellation of origin" means the geographical name of a country, region or specific place which serves to designate a product originating therein the characteristic qualities of which are due exclusively or essentially to the geographical environment, including natural, human factors or both natural and human factors." Appellations of origin are a special kind of indication of source: all appellations of origin are indications of source, but not all indications of source are appellations of origin. 4. The fact that appellations of origin and indications of source relate to a specific geographical area has consequences for their international protection. Unlike in the field of patents and trademarks where rights are independent in each country so that an invention may be patented in a country even if it has not been patented in the country of residence of the inventor, with respect to appellations of origin and indications of source there is a dependency on protection in the country of origin. In other words, if an appellation of origin, or an indication of source is not recognized as such in the country of origin normally it cannot be protected in other countries. I say "normally" because there may exist certain exceptions to this rule with respect to some indications of source.

26 page On the other hand, the fact that an appellation of origin or an indication or source is protected in the country to which it relates does not automatically mean that protection exists also in other countries. Problems in the international protection of appellations of origin and indications of source arise where an appellation or indication is not understood as such in countries other than the country of origin. In particular, there is the problem that an appellation or indication may be considered as the name of the product. This may happen in particular with well-known appellations or indications. The question here is whether in international relations rules exist or could be established that ensure international protection of an appellation of origin or indication of source even where such appellation or indication risks to be considered as the name of the product in other countries. This is the problem which has been under consideration for a long time and which so far has not yet been fully solved. II. The Existing Multilateral Treaties for the Protection of Appellations of Origin and Indications of Source A. The Paris Convention for the Protection of Industrial Property 6. Several provisions of the Paris Convention deal specifically with indications of source or appellations of origin: Article 1(2), which contains a list of objects of industrial property; Article 10, which deals with the protection of indications of source; Article 9, to which Article 10 refers in respect of the sanctions applicable; and Article loter, which reinforces the provisions of Articles 9 and The original 1883 text of the Paris Convention did not mention either indications of source or appellations of origin in the list of objects of industrial property. Indications of source were introduced by the Washington Revision Conference (1911), and appellations of origin by that of The Hague (1925). Their presence in Article 1(2) does not in itself entail the obligation for any Paris Union country to ensure their protection. However, this obligation arises out of Article 10, but only for indications of source, so that specific protection of appellations of origin is not mandatory under the Paris Convention. Nevertheless, Articles 9, 10 and loter are applicable to appellations of origin inasmuch as they constitute indications of source. 8. Article 10(1) is the basic provision of the Paris Convention on indications of source. The original 1883 text provided that Article 9, under which all goods unlawfully bearing a trademark or a trade name might be seized on importation, applied to any goods which falsely bore as an indication of source the name of a specified locality, when such indication was joined to a trade name of a fictitious character or used with fraudulent intention. 9. The limited scope of the original text of Article 10(1) was broadened in subsequent revision conferences. As a result, Article 10(1) applies to any direct or indirect use of a false indication as to the source of a product, regardless of whether the indication is the name of a specified locality or country or whether it is joined to a trade name of a fictitious character used with fraudulent intention; secondly, for the provision to be applicable, there is no need for the false indication to appear on the product since any

27 page 25 direct or indirect use, for instance in advertising, is henceforth sanctionable; thirdly, the effects of Article 10(1) extend to any use of a false indication of the identity of the producer, manufacturer or trader. However, it was not possible to introduce into the Paris Convention the principle of the repression of deceptive indications of source, that is, indications which, without being false, are liable to mislead the public; this was, however, done in the Madrid Agreement. 10. The sanctions in the case of the use of a false indication of source are those provided for in Article 9. This provision establishes the principle that seizure upon importation must be provided for, or at least prohibition of importation or seizure inside the country but, if those sanctions do not exist in a particular country, the actions and remedies available in such cases are to be applied. 11. Article 9(3) and Article 10(2) determine who may request seizure on importation or the imposition of other sanctions, namely either the public prosecutor, or any other competent authority, or an interested party. Article 10(2) defines what is meant by "interested party", stipulating that "any producer, manufacturer, or merchant, whether a natural person or a legal entity, engaged in the production or manufacture of or trade in such goods and established either in the locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party." 12. Article loter is of some importance in connection with indications of source inasmuch as it obliges countries of the Union to provide, on the one hand, appropriate legal remedies and to permit, on the other, federations and associations representing interested industrialists, producers or traders to take action, under certain conditions, with a view to the repression of false indications of source. 13. The main advantage of the protection afforded by the Paris Convention to indications of source lies in the extent of the territorial area covered by the Paris Union, which at present comprises 99 member countries. In other respects, indications of source are not covered by the Paris Convention, neither is the use of false indications in translation or qualified by terms such as "kind," or "type"; the question of indications of source regarded as generic names is not dealt with, so that countries of the Union are entirely free in that respect; finally, sanctions, although specifically provided for, are not in all cases mandatory. B. The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods 14. The limited scope of the protection afforded by the original text of the Paris Convention induced a number of Paris Union member countries particularly interested in the protection of indications of source to conclude, within the framework of the Paris Union, a Special Agreement which was signed in Madrid in Already in the original 1891 text. Article 1(1) of that Agreement provided that any product bearing a false indication of source by which one of the contracting countries or a place situated therein was directly or

28 page 26 indirectly indicated as being the place of origin should be seized on importation into any of those countries. Compared with the text of the Paris Convention then in force, the said paragraph (1) has the following advantages: first, seizure is mandatory (and not optional); secondly, the provision applies when a contracting country or a place situated therein is falsely indicated as being the country or place of origin (and not only when the indication consists of the name of a specified locality and is joined to a trade name of a fictitious character or used with fraudulent intention). However, Article 1(1) of the Madrid Agreement, like Article 10 of the Paris Convention, is applicable only if the false indication appears on the product itself. 15. The scope of the Madrid Agreement was broadened by the Lisbon Revision Conference in The Agreement now aims at the repression not only of false but also of deceptive indications of source. 16. The other paragraphs of Articles 1 and 2 specify the cases and the manner in which seizure or similar measures may be requested and carried out. These provisions are very similar to the corresponding rules of the Paris Convention, except on the matter of entitlement to request sanctions; indeed, the Madrid Agreement falls short of the Paris Convention in the latter respect: it does not provide, as the Paris Convention does, that private individuals may request seizure directly, such persons being obliged to apply through the public prosecutor or any other competent authority. 17. Article 3 authorizes the vendor to indicate his name or address on goods coming from a country other than that in which the sale takes place, but obliges him, if he does so, to have his name or address accompanied by an exact indication in clear characters of the country or place of manufacture or production. 18. Article 3bis was inserted by the London Revision Conference in This provision obliges the Contracting States to prohibit the use, in connection with the sale or display or offering for sale of any goods, of all indications or source of the goods. 19. Article 4 is a somewhat controversial provision of the Madrid Agreement. It first provides that the courts of each country are to decide what appellations, on account of their generic character, do not fall within the provisions of the Agreement. It then specifies, however, that regional appellations concerning the source of products of the vine are excluded from the reservation inherent in the provision. The reservation substantially limits the scope of the Madrid Agreement, in spite of the important exception constituted by the case of regional appellations concerning the source of products of the vine, for which protection is absolute. Yet the expression "regional appellations concerning the source of products of the vine" is somewhat ambiguous and has given rise to divergent interpretations.

29 page The territorial scope of the Madrid Agreement is considerably smaller than that of the Paris Convention, as only 32* countries are bound by it. In addition, the Agreement has certain limitations identical with those in the Paris Convention: the repression of false or deceptive indications used in translation or qualified by terms such as "kind" or "type" is not provided ^ for, in spite of efforts made at the Lisbon Revision Conference in. 1958; apart from regional appellations concerning the source of products of the vine, appellations of origin do not enjoy any specific protection; indications of source are not protected against the risk of becoming generic names, except where they are regional appellations concerning the source of products of the vine; finally, the sanctions provided for are limited, as in ~ the Paris Convention. Compared with the latter, the Madrid Agreement has shown only two advantages since 1958: the repression of deceptive indications of source is now provided for, and regional appellations concerning the source of products of the vine are protected against the risk of becoming generic names. It is interesting to note that the Madrid Agreement, which originally represented a considerable advance in relation to the Paris Convention, ~ gradually lost its lead with the more marked development, particularly at the Lisbon Revision Conference, of Article 10 of the Paris Convention compared with the provisions of the Agreement. However, the more or less parallel levels of protection afforded by the two instruments are not inadequate to meet practical requirements. C. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 21. The international protection of appellations of origin available prior to 1958 under the Paris Convention and the Madrid Agreement was considered insufficient by a number of countries. Since it was believed that revision of g these two instruments had to remain within certain limits and therefore could not create an entirely satisfactory situation for those countries, it seemed necessary to draft a new multilateral treaty within the framework of the Paris Union. A draft agreement prepared by BIRPI was submitted to the Lisbon Diplomatic Conference in 1958, which adopted the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, as ^ well as Regulations for the implementation of the Agreement. The Lisbon Agreement entered into force in It has since been revised at the Stockholm Diplomatic Conference (1967), but the revision related only to the Algeria, Brazil, Bulgaria, Cuba, Czechoslovakia, Dominican Republic, Egypt, France, German Democratic Republic, Germany (Federal Republic of), Hungary, Ireland, Israel, Italy, Japan, Lebanon, Liechtenstein, Monaco, Morocco, New Zealand, Poland, Portugal, San Marino, Spain, Sri Lanka, Sweden, Switzerland, Syria, Tunisia, Turkey, United Kingdom, Viet Nam.

30 page 28 administrative provisions and did not affect either the substantive provisions of the Agreement (apart from adapting them to the new terminology) or the Regulations. At the present time, the Special Union constituted by the States bound by the Lisbon Agreement comprises 16 member States*. The limited geographical scope of the Lisbon Union is due to particular characteristics of the substantive provisions of the Agreement. m 22. Article 2(1) contains a definition according to which appellation of origin means "the geographical name of a country, region, or locality which serves to designate a product originating therein the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors." It follows f from the presence of this definition in the Lisbon Agreement that only names conforming to the definition may be protected by virtue of that instrument. Qualified and simple indications of source are thus excluded from the purview of the Lisbon Agreement. This limitation is one of the characteristic features of the Agreement; it prevents the accession of countries which do not apply the appellations of origin concept, and which may nevertheless be interested in having some of their indications of source protected under the Agreement. Admittedly, the definition is phrased in quite broad terms, and the countries of the Lisbon Union tend to give it a wide interpretation; the fact remains, however, that the Lisbon Agreement is bound to impose certain limitations which do not seem essential to the efficient operation of the system. 23. The first element of the definition is that the appellation must be the geographical name of a country, region or locality. The second element of the definition is that the appellation of origin must serve to designate a product originating in the country, region or locality referred to. Simple indications of source are ruled out by this second element inasmuch as they do not serve to designate products. According to Article 2(1), appellations of origin may apply to all products, whether natural products or products of handicraft or industry, but they may not designate services. The third element of the definition is that there must be a qualitative link between the product and the geographical area: the "quality and characteristics" must be due exclusively or essentially to the geographical environment. If the qualitative link is insufficient, that is, if the charcteristic qualities are due not essentially, but only to a small extent, to the geographical environment, the name is not an appellation of origin but merely an indication of source or even a generic name. As for the geographical environment, it includes natural factors, such as soil or climate, and human factors, such as the special professional traditions of the producers established in the geographical area concerned. C Algeria, Bulgaria, Burkina Faso, Congo, Cuba, Czechoslovakia, France, Gabon, Haiti, Hungary, Israel, Italy, Mexico, Portugal, Togo, Tunisia

31 page Even if it is interpreted very broadly, the definition of appellation of origin given in Article 2(1) has a serious drawback which prevents certain countries from acceding to the Lisbon Agreement. These are the countries whose denominations eligible for protection apply not to agricultural products or products of handicraft but to products of industry. The difficulty arises from the fact that Article 2(1) requires the existence of a qualitative link between the geographical environment and the product, even though the presence of purely human factors would be considered sufficient. This link, which existed at the start of the manufacture of the industrial product, may subsequently have been stretched to the point that its existence is difficult to prove, although the name has not become a purely generic term; in other words, the name gives a certain reputation to the product which bears it, in spite of the doubt concerning the geographical link, and therefore constitutes a qualified indication of source. 25. Article 1(2) of the Lisbon Agreement provides that the countries of the special Union undertake to protect on their territories, in accordance with the terms of the Agreement, the appellations of origin of products of the other countries of the Speical Union, recognized and protected as such in the country or origin and registered at the International Bureau of WIPO. Therefore, in order to be protected under the Lisbon Agreement, an appellation of origin of a country of the Special Union must, according to Article 1(2) meet two conditions as well as conform to the definition in Article 2(1): first, the appellation of origin must be recognized and protected as such in the country of origin (the latter being defined in Article 2(2)); secondly, the appellation of origin must be the subject of an international registration. 26. The first condition, that the appellation must be recognized and protected "as such" in the country of origin, is one of the main obstacles to the territorial extension of the Lisbon Union. The expression means that it is not sufficient for the country to protect its appellations in a general way: each individual appellation still has to benefit from distinct and express protection deriving from a specific act. In terms of Rule 1(5) of the Regulations, the specific act may be a legislative or administrative provision or a judicial decision; it may also be a national registration. While Rule 1(5) does not in fact mention the latter possibility, the words "as such" in Article 1(2) of the Lisbon Agreement do not exclude it, and they should be interpreted to mean that prior protection in the country of origin must derive from an official act. The act determines the specific elements of the object of protection (the circles of lawful users of the appellation of origin, the nature of the product, the geographical area); those elements must be indicated in the application for international registration in accordance with Rule 1 of the Regulations. Yet, in a number of countries, it is only in a few exceptional cases that such specific acts exist. While this fact alone does not prevent those countries from acceding to the Lisbon Agreement, they nevertheless cannot apply for international registration of all the names which they wish to have protected, even if the names correspond to the definition in Article 2(1); this indeed diminishes the practical value of accession.

32 page The second condition laid down by Article 1(2) is that the appellation of origin must be registered with the International Bureau. Articles 5 and 7 of the Agreement itself and the Regulations set forth the procedure for registration. 28. Article 2(2) defines the country of origin as being "the country whose «name, or the country in which is situated the region or locality whose name, constitutes the appellation of origin which has given the product its reputation." This definition does not call for any special comment, except that the appellation must give the product in question a certain reputation. It is probable that the latter condition is not very different, in the context of the Lisbon Agreement, from that of the link between the geographical «environment and the characteristic qualities of the product; in any case it does not appear to be an additional condition in relation to the definition of appellation of origin in Article 2(1). 29. Article 5(1) of the Lisbon Agreement and the corresponding provisions of the Regulations define the procedure for international registration. m International registration must be applied for by the competent Office of the country of origin, and therefore may not be requested for by interested parties. The national Office, however, does not apply in its own name for international registration, but in that of "any natural persons or legal entities, public or private, having a right to use (titulaires du droit d'user)" the appellation, according to their national legislation. The use of *> the word titulaire in this paragraph, and "owner or owners" in Rule 1(1) of the Regulations, under which an indication of the owner or owners of the appellation of origin must be given may be questioned, as it suggests an exclusive right, comparable to a trademark right, which is granted to a circle of persons who may be listed by name, whereas the right to use an appellation of origin belongs to all persons who fulfill certain conditions (activity in * the geographical area concerned, manufacture of products corresponding to the minimum criteria applicable to the appellation concerned). Instead of owners it would be preferable to speak of beneficiaries, for instance. In this connection, the Council of the Lisbon Union accepted in 1970 that it was not necessary for the owners of the right to use the appellation of origin to be indicated by name: it was sufficient that the circle of owners be clearly? defined. Rule 1 of the Regulations lists the particulars which must accompany the application for registration. The International Bureau has no competence to examine the application with respect to substance; it may only make an examination as to form and, where necessary, cause the application to be put in order by the Office which filed it (Rule 3 of the Regulations). If the application is in order as to form, the International Bureau registers the g appellation by entering it in two Registers, of which one is a general Register and the other a special Register for each country of the Special Union (Rule 2 of the Regulations). Under Article 5(2) of the Lisbon Agreement, the International Bureau notifies the registration without delay to the Offices of the countries of the Special Union and publishes it in the periodical Les Appellations d'origine (Rule 5 of the Regulations). m i

33 page In accordance with Article 5(3) to (5) of the Lisbon Agreement, the Office of any country of the Special Union may, within a period of one year from the receipt of the notification of registration, declare that it cannot ensure the protection of a given appellation. Apart from the time limit mentioned, the right of refusal is subject to only one condition: the grounds for refusal must be indicated. The grounds which may be given are not specified; this in fact gives each country the discretionary power to accept or refuse to protect a registered appellation of origin. The declaration of refusal is not detrimental, in the country concerned, to the other forms of protection of the appellations which may be available under Article 4, namely, under other international instruments such as the Paris Convention and the Madrid Agreement, or by virtue of national legislation or court decisions. The declaration of refusal must be communicated as soon as possible by the International Bureau to the Office of the country of origin; such communication enables the Offices concerned to initiate negotiations for the withdrawal of the refusal; in addition the Office of the country of origin must advise the party concerned of the delcaration, so that the latter may resort, in the country which made the declaration of refusal, to all the judicial and administrative remedies available to nationals of that country. 31. In all countries not having made a declaration of refusal, the registered appellation enjoys full protection. However, if third parties have been using the appellation in a given country prior to the notification of the registration, the Office of that country may, under Article 5(6) of the Lisbon Agreement, grant them a maximum of two years in which to terminate such use; the Office concerned must advise the International Bureau accordingly, and the latter publishes the authorization in accordance with Rule 5 of the Regulations. 32. The protection deriving from the registration is in principle unlimited in time: Article 6 of the Lisbon Agreement provides that an appellation which has been granted protection cannot be deemed to have become generic as long as it is protected as an appellation of origin in the country of origin. This provision is a considerable improvement on the Paris Convention and the Madrid Agreement, which do not contain a similar provision. Thus Article 7 provides that the registration need not be renewed and is subject to payment of a single fee. For a registration to cease to be valid, either the appellations concerned must have become a generic name in the country of origin, or the registration must have been cancelled, in accordance with Rule 4(4) of the Regulations, at the request of the national Office which had applied for it. 33. The content of the protection afforded to an appellation of origin registered under the Lisbon Agreement, which is defined in Article 3, is very extensive. Any usurpation or imitation of the appellation is prohibited, even if the true origin of the product is indicated or if the appellation is used in translated form or qualified by terms such as "kind," "type," "make," "imitation," or the like. The extension of protection to translations and the prohibition of qualifying terms represent a considerable advance in relation to the Paris Convention and the Madrid Agreement.

34 page With regard to the legal action necessary for ensuring the protection of appellations of origin. Article 8 of the Lisbon Agreement refers to national legislation in respect of the nature and the exercise of such action. However, it specifies that the right to take such action belongs to the competent Office and the public prosecutor on one hand, and to any interested party, whether a natural person or a legal entity, whether public or private, on the other. On the latter point, the Lisbon Agreement goes further than the Madrid Agreement, which does not allow private individuals to take direct action. Another improvement in the Lisbon Agreement, as compared also with the Paris Convention, is that it not only makes mandatory the application of purely administrative sanctions such as seizure, but stipulates that all the sanctions provided for in national legislation, whether civil (injunctions restraining or prohibiting unlawful acts, actions for damages, etc.), penal or administrative, may be applied. The latter improvement is more apparent than real, however, in view of the fact that the national treatment principle obliges a country which is a member of the Paris Union or party to the Madrid Agreement to allow nationals of the other countries of the Union or Agreement to avail themselves of all civil and penal sanctions provided under its law; moreover, the Lisbon Agreement does not place States under an obligation to provide for civil and penal sanctions. 35 In conclusion, there are some points on which the Lisbon Agreement unquestionably improves on the other multilateral conventions, but it does have particular characteristics which make it difficult for certain countries to accede to it and which explain why the Lisbon Special Union has only 16 member States at the present time. The main improvements achieved by the Lisbon Agreement in relation to the Paris Convention and the Madrid Agreement are the principle it contains according to which the use of corrective or qualifying terms is prohibited (Article 3) and the rule which prevents a registered appellation of origin from becoming a generic name as long as no such change has taken place in the country of origin (Article 6). As for the main problems raised by the Lisbon Agreement, they may be summarized as follows: the definition of appellations of origin is too narrow (Article 2(1)); the requirement of prior recognition and protection under a special official act in the country of origin leaves aside any system of protection by general legislative provisions for the repression of deceptive practices (Article 1(2)); the mandatory indication of the owners of the right to use the appellation in whose name the international registration must be applied for is also difficult to reconcile with the abovementioned system (Article 5(1)); in the absence of any definition in the Agreement of what constitutes valid grounds for refusal, the complete freedom thus accorded to each State to refuse to afford protection to a registered appellation seems excessive, and the refusal procedure is too inflexible, since negotiations between interested States can only be initiated after refusal (Article 5(3) to (5)). In addition, the Lisbon Agreement does not provide for the application of the law of the country of origin, except for the determination whether an appellation has become a generic name (Article 6); as a result, the question of usurpation or imitation in a specific case will be decided in accordance with the law of the country in which protection is sought, a situation that is unlikely to ensure that products embody all the characteristic qualities required.

35 page 33 HI. Work Undertaken by WIPO with Respect to the Adoption of New Treaty Provisions A. The Need for New Treaty Provisions 36. As we have already seen, the existing provisions of the Paris Convention, the Madrid Agreement and the Lisbon Agreement do not ensure worldwide protection of appellations of origin and indications of source to an entirely satisfactory extent. 37. The Lisbon Agreement which is the most recent one of those instruments was accepted only by 16 States. Most of them joined shortly after the conclusion of the Agreement, and the rythmn of accessions has become much slower in recent years. It is clear that a number of States are not in a position to accede to the Lisbon Agreement because it is limited to appellations of origin, with a specific definition of that concept that is unlikely to be accepted worldwide. 38- The Madrid Agreement has found a broader acceptance. It has 32 member States. However, here again, the number of accessions slowed down about 40 years after its conclusion. There are only ten States which joined the agreement during the last 40 years, and during the last 10 years no State has joined the Madrid Agreement. This is not a consequence of the lack of effort on behalf of the International Bureau of WIPO to promote acceptance of "* treaties administered by WIPO. The reason simply is that a number of States are unable to accept some of the peculiar features of the Agreement which I have explained before. 39. As regards the provisions of the Paris Convention, they are widely accepted but only ensure limited protection. B- The Preparation of a Draft Treaty on the Protection of Geographical Indications 40. In 1974, WIPO started work on the preparation of a new international treaty for the protection of appellations of origin and indications of source. After a first session of a committee of experts in 1974, the International Bureau of WIPO prepared a draft treaty which was submitted to the second session of the committee in December The proposed text was entitled "Draft Treaty on the Protection of Geographical Indications." The expression "geographical indications" was used in order to cover both indications of source and appellations of origin. 41. The first chapter of the draft treaty contained a provision according to which the use of denominations, expressions or signs which constitute or directly or indirectly contained false or deceptive geographical indications as to the source of products or services must be prohibited. This provision was meant to introduce a reinforced protection of geographical indications against false or deceptive use.

36 page The second chapter provided for a system of international registration in respect of any geographical indication which fulfilled the following conditions: (a) the geographical indication consists of the official or usual name of a State or of the name of a major circumscription of a State or of a denomination which serves to indicate the source of a product; (b) the indication is declared by the State in question to be a reference to itself as the State of origin; (c) the indication is used in the course of trade in relation to products originating in the State and the said State certifies such use. 43. When considering these conditions it becomes clear that the draft treaty intended to establish a new definition of geographical indication for the purposes of a system of international registration. The new definition was much broader than the definition of appellation of origin under the Lisbon Agreement. In most other respects, the system of the draft treaty was similar to the Lisbon Agreement. In particular, the procedure of international registration included the possibility of objections and protection unlimited in time once the international registration had become effective. However, unlike under the Lisbon Agreement, the grounds for an objection were limited to only one of the following grounds: (i) the subject of the application for international registration consists neither of the official or usual name of the filing State or of that of a major circumsription of that State, nor of a denomination which serves to indicate the source of a product; (ii) the denomination which is the subject of the said application does not refer to the filing State as the State of origin; (iii) in the filing State, the denomination in question is used in the course of trade in relation to products originating in any State; (iv) in the objecting State the denomination in question is regarded as a generic term by the general public and is used as such in the course of trade; (v) certain requirements concerning the application have not been fulfilled. Moreover, although unlimited in time, protection was envisaged to be made dependent on the payment of maintenance fees. In addition, the draft Treaty contained a chapter on sanctions, the right to bring action and the settlement of disputes through diplomatic channels. 44. During the discussions on the draft Treaty at the Committee of Experts in December of 1975, several countries expressed support for the draft treaty or at least interest in a further study on this matter. C The Introduction of a New Article in the Paris Convention 45. During the work on the new treaty on geographical indications the process of revision of the Paris Convention was initiated. This process has not yet been completed. The main objective of the revision of the Paris Convention is the introduction of new provisions concerning patents, in particular in Article 5A, which deals with compulsory licenses, and in Article 1, in respect of which it has been proposed to include inventors' certificates. 46. In the course of the discussions on the revision of the Paris Convention, a proposal was made to include a new article on the protection of appellations

37 page 35 of origin and indications of source. In this connection, the terminology used in the preparation of a draft treaty was adopted; thus the term "geographical indication" was used. The purpose of this new article of the Paris Convention which provisionally was numbered Article loquater is intended to be two-fold. Firstly, the article should ensure a more extensive protection of appellations of origin and indications of source against their use as trademarks. Secondly, a special provision in favor of developing countries should be included, which would allow developing countries to reserve a certain number of geographical indications for the future so that they could not be used as trademarks. 47. In the basic proposals for the Diplomatic Conference on the Revision of the Paris Convention, which were prepared in 1979, the new Article loquater was included. This draft article establishes in its paragraph (1) the principle that a geographical indication which directly or indirectly suggests a country of the Paris Union or a region or locality in that country with respect to goods not originating in that country should not be used or registered as a trademark if the use of the indication for the goods in question is of a nature as to mislead the public as to the country of origin. Paragraph (2) extends the application of paragraph (1) to geographical indications which, although literally true, falsely represent to the public that the goods originate in a particular country. Paragraph (3) contains an additional provision in respect of geographical indications which have acquired a reputation in relation to goods originating in a country, region or locality, provided that such reputation is generally known in the country where protection is sought by persons engaged in the production of goods of the same kind or in trade in such goods. This additional provision establishes a reinforced protection for certain generally known geographical indications without the requirement of misleading use. Paragraph (4) of draft Article loquater provides for an exception in favor of use which had been begun in good faith. Paragraph (5) requires that all factual circumstances must be considered when applying the preceding provisions. Paragraph (6) reserves the possibility of bilateral or multilateral negotiations between member countries of the Paris Union. Finally, paragraph (7) contains a provision of particular interest to developing countries. According to that provision each developing country could notify the International Bureau of up to 200 geographical names denominating the country itself or a region or a locality on its territory, with a consequence that the International Bureau would notify all Paris Union member States and that these States would be obliged to prohibit the registration or use of trademarks containing or consisting of the notified names. The effect of the notification would last for 20 years. During this period the developing country in question would have the possibility of making known the geographical indication so that subsequently the general provision would apply. 48. Draft Article loquater has been discussed in the four sessions of the diplomatic conference as well as in some of the subsequent consultative meetings. During these discussions, the Group of industrialized, market economy countries was for a long time divided in respect of the protection of geographical indications which have acquired a certain reputation; for that

38 page 36 case, a number of countries favored protection even against use which is not misleading whereas some countries were opposed to that particular kind of protection. 49. In 1984, the industrialized, market economy countries, participating in the revision conference, for the first time agreed on a proposal for a new Article loquater, which can be summarized as follows: paragraphs (1) and (2) are similar to paragraphs (1) and (2) of the basic proposals, subject to some minor changes resulting from the discussions which had taken place in the sessions of the diplomatic conference; paragraph (3) concerns the protection of a "geographical indication generally known in a country to consumers of given products or of similar products as designating the origin of such products manufactured or produced in another country of the Union"; according to the proposal of the said countries, the protection would not, as in the basic proposal, be directed against the use as a trademark but against a development of such an indication to a designation of generic character for the said product or similar products; paragraph (4) contains an amended version of the special provisions in favor of developing countries; in contrast to the basic proposal, the number of geographical indications which can be reserved is up to 10 and when they are reserved the goods for which the name is or will be used have to be indicated; paragraphs (5) to (7) contain slightly amended versions of the provisions of the basic proposal in respect of acquired rights, the consideration of all factual circumstances and the possibilities of concluding bilateral and multilateral agreements. 50. The said proposal has not yet been discussed in the sessions of the diplomatic conference itself. It only has been briefly considered in the consultative meeting which took place in September of this year. 51. The outcome of the process of the revision of the Paris Convention is uncertain. The question of appellations of origin and indications of source is only one of a number of questions which are being considered by the diplomatic conference. Other issues, in particular Articles 5A and 1, so far have attracted more attention than Article loquater. It should, however, be mentioned that in 1982 the competent Main Committee adopted an amendment in Article 6ter of the Paris Convention which in its present text contains a prohibition on using state emblems, official marks or emblems of intergovernmental organizations, as trademarks. The amendment concerns the inclusion of the official names of States in the list of emblems, etc., which may not be used as trademarks. This is of importance for protection of geographical indications since it means that at least official names of States would always have to be excluded from use as trademarks. IV. Outlook 52. Neither the revision of the Paris Convention nor the preparation of a special treaty on the protection of geographical indications so far have come to a conclusion. It would go too far here to analyze the prospects for the revision of the Paris Convention, which is a politically highly complex undertaking. Thus, as regards future activities with respect to improving the

39 page 37 international protection of appellations of origin and indications of source, the following three possibilities seem to exist. 53. The first possibility concerns the adoption of a worldwide system of the protection of appellations of origin and indications of source within the framework of the Paris Convention. The fact that the industrialized, market economy countries have agreed on a joint proposal is encouraging in this respect. However, as I have said, protection of geographical indications is only one of a number of questions under consideration in the revision process, and it is unlikely that this question could be settled without the adoption of generally agreed solutions for the other questions. 54. The second possibility concerns a special agreement within the framework of the Paris Convention. The work which started about 15 years ago concerning the preparation of a new special agreement, shows that possibilities exist for finding a solution in this respect. The main question here is whether this work could be resumed pending the revision of the Paris Convention. This is a highly political question which would have to be considered by the Governing Bodies of WIPO when they decide on the Organization's program and budget. 55. The third possibility would be a combination of action both at the level of the Paris Convention and with a view to concluding a new special agreement. This appears to be the most appropriate course of action since it would overcome the difficulty of obtaining agreement between all Paris Union Member States on very specific rules concerning the protection of geographical indications. Thus a system of two levels of protection, one containing the basic conditions and the other supplementing them by more specific rules, could be created. 56. It is hoped that the discussions at this Symposium will help to clarify the concepts governing the protection of geographical indications with a view to improving the system of international protection. ******

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41 page 39 THE PROTECTION OF APPELLATIONS OF ORIGIN Al IlICATIONS OF SOURCE OF COTE D'lVOIRE (IN PARTICULAR, THOSE RELATING TO COOT) by Mr. Atse Prosper Kouassi Technical Deputy Director Agency for Stabilization Abidjan, Cote d'lvoire O

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43 page 41 Trade throughout the world has always been considered a battlefield on which the most varied of interests face each other. The efforts to normalize trade remain a standing concern of nations, of States and of governments. Organizations and institutions were established at a very early juncture in the hope of bringing a little order and more freedom to worldwide trade. Thus were founded in 1883 and 1886, respectively, the Paris and Berne Unions for the Protection of Intellectual Property. This was also the context within which the General Agreement on Tariffs and Trade (GATT) was created, in 1948, in order, inter alia, to fight against protectionism. The arrival, in 1964, of the United Nations Conference on Trade and Development (UNCTAD) as a forum for the exchange of ideas and views on international trade appeared to represent a panacea. However, discussions within UNCTAD suffer from a number of problems, including the deterioration in the terms of trade, speculation on commodities, the debt, and so on. This has reached a point where even the best formulated international agreements within this forum frequently lack effectiveness. A good example is provided by the Cocoa Agreements of 1972, 1975, 1980 and 1986, that have remained ineffective as regards their economic clauses, and the collapse of the coffee market despite the 1983 Agreement and its price protection measures. It has been in the same spirit of harmonization of international trade that other specialized bodies have been created. One may mention, in this context: - the Codex Alimentarius of which the labelling standards take into account, in part, our concern in respect of appellations of origin and indications of source for certain industrial goods and commodities. - the International Organization for Standardization (ISO) that serves the promotion of trade and industry by drafting standards that make it possible to identify even the smallest article involved in international trade. One may well ask whether Cote d'lvoire, a developing country whose accession to independence goes back to the sixties only, has taken the necessary measures to protect appellations of origin and indications of source for the benefit of industry and the production activities that participate in the development of international trade. We shall therefore examine, to begin with, the history of intellectual protection in Cote d'lvoire. We shall then take a look at the protection of appellations of origin and indications of source in Cote d'lvoire. Experience gained with coffee will be given as an illustration in the final part.

44 page 42 I. INTELLECTUAL PROPERTY AND THE IVORIAN ECONOMY A. COPYRIGHT IN COTE D'lVOIRE Copyright is the oldest form of intellectual protection in Cote d'lvoire. Its beginnings go back to the fifties. That is far from being old in comparison with the French Law of 1791 on intellectual protection. In those colonial days of the fifties, there existed in France a collecting society known as SACEM (Societe des auteurs, compositeurs et editeurs de musique) - SACEM indeed still exists today. Following the model of SACEM, and at its instigation, the BADA (Bureau africain des droits d'auteurs) was set up in 1944 in the French colonies of Africa, including Cote d'lvoire. BADA therefore acted as the office for the protection of works of the mind, particularly musical works, literary works and the like. Around 1969, a noticeable decline of BADA resulted in SACEM taking charge of a number of its activities by setting up SACEM delegations in Africa. Thus, the SACEM Delegation of Cote d'lvoire was to represent the member States of the Council of the Entente. It is worth noting that, even at that time, that is to say some ten years after independence, authors were still an easy prey since very few of them were aware of the value of intellectual protection. Some even feared the complications that such protection could possibly bring with it. Likewise, there were very few musicians who were aware at the time that they could enjoy copyright. Within the Ivorian administration, on the other hand, there was full awareness of the value of intellectual protection. The first Ministry of Culture took up the task. The documents drawn up and reviewed during a period of almost ten years gave birth to a law in 1978: Law No of July 28 on the Protection on Intellectual Works. This was the point of departure for the real organization of copyright at an Ivorian level. The supervision carried out by SACEM for the protection of works of the mind had nevertheless to continue for a number of years yet, up to On April 15, 1981, the Government of Cote d'lvoire set up by Decree No a National Office for the Protection of Works of the Mind known as BURIDA (Bureau ivoirien du droit d'auteur) some 95 years after the Berne Convention on Copyright signed in The advent of BURIDA was to create great enthusiasm and expectations. The Office was invaded by writers and musical performers. Their action was primarily guided by the wish to receive royalties. However, they rapidly came to understand that they had first to join BURIDA and that the works deposited with the Office could then be protected and exploited, thus procuring copyright and royalties. programs. Radio and television were utilized to present regular and consecutive

45 page 43 The royalties of the State for broadcast and televised works, together with the other rights levied by BURIDA, were entrusted to SACEM for administration. The latter then distributed them to the various authors depending on the exploitation of their works. Ironically, when distributing the royalties, 70% generally go to foreign authors and the remaining 30% to national authors; this reflects the fact that Ivorian media are wide open to the exterior and that local authors must endeavor towards more activity. The idea of protecting works of the mind is now well accepted by Ivorian authors who may enjoy its benefits and materialize their creative instincts. B. IVORIAN INDUSTRY AND THE PROTECTION OF INDUSTRIAL PROPERTY The history of industrialization in Cote d'lvoire, which underlies that of the protection of industrial creations, comprises two distinct periods: the colonial period prior to independence in 1960 and that following Ivorian industry in the colonial era comprised three sectors that were hardly developed: the textile sector dominated by the Etablissements Gonfreville, the agro-industrial sector with Savonneries Blohorn, a few coffee-roasters and the timber industry. A number of breweries completed the relatively low level of industrial activity. The total turnover of industry in 1960 was estimated at 15 billion CFA francs, which reflected the typical industrialization context of a developing country. Next to this embryonic industry, the primary sector (agriculture) was already fairly large. Coffee and cocoa production respectively occupied the third and fourth positions in the world. Timber constituted the third greatest riches of the country. Protection of industrial property was of no concern at that time. Know-how and industrial processes, patents and industrial designs were already sufficiently exploited in the West and were protected by their inventors. Independence in 1960 constituted a further step in the country's industrial era. Taking advantage of a favorable international economic situation. Cote d'lvoire added to its economy a number of large undertakings: Grands Moulins d'abidjan (1960), Societe Ivoirienne de Raffinage (1962),^ Capral Nestle (1962), Safar Renault (1962), Palmindustrie (1963), Societe Africaine de Cacao (1964), Bata Shoes (1965), and so on. This industrial trend continued through the seventies with the installation of large-scale industrial complexes: sugar-refining complexes, coffee-husking plants, cotton-ginning factories. The aim was to progress from the import-substitution of the sixties to an industry exporting processed agricultural commodities.

46 page 44 In order to support the industrial fabric, the State was obliged to set up support and funding structures, of which the main ones were the National Enterprise Assistance and Promotion Center (CAPEN) for the small and medium-sized undertakings, the National Investment Company (SONAFI), the Industrial Development Bank (BDI) to fund industrial projects. The setting up of State firms as from the sixties met a concern to increase Ivorian capital in enterprises and to train Ivorians in the administration of business. The training of men, the education of youth have since constituted a priority to satisfy the growing needs for competent men. Cote d'lvoire devotes more than 40% of its national budget to all types of training. The rapid increase in such training has led to the introduction of a television education system in schools. The industrial aims have been met. In 1984, Cote d'lvoire possessed more than 750 industrial enterprises with a total capital of 376 billion CFA francs, of which 78% was Ivorian (compared with 15 billion CFA francs in 1960). The turnover before taxation amounted to 1,250 billion CFA francs for accumulated investment of 1,638 billion CFA francs. The particularity of the overall sector (including energy and construction), which represents between 15 and 20% of the gross domestic product (GDP), is that it is characterized by a very strong agro-industry. The agro-industries represent between 20 and 25% of the secondary sector and between 34 and 37% of the total of industrial added value, without energy, building and public works. The influence of the agro-industries derives from the large-scale programs launched following 1960 and which, in , were as follows: - Palm industry Production: 186,000 tonnes of palm oil Exports: 67, 545 tonnes (palm oil and derivates) - Rubber industry Production: 46,722 tonnes Exports: 48,097 tonnes - Sugar industry Production: 111,500 tonnes Exports: 21,310 tonnes - Cotton industry Production: 76,500 tonnes of cotton fibers Exports: 79,532 tonnes - Pineapple industry Production: Fresh pineapple 175,137 tonnes Tinned pineapple 14,167 tonnes Pineapple juice 3,147 tonnes

47 page 45 To protect the processes used in these expanding industries. Cote d'lvoire entered into the world of intellectual protection following independence. On September 13, 1962, Cote d'lvoire and 12 other French-speaking countries set up the African and Malagasy Industrial Property Office (OAMPI) as a result of the Libreville Agreement, some 79 years after the Paris Union for Industrial Protection set up in OAMPI was to experience a number of problems, particularly following the withdrawal of Madagascar. Some 15 years after OAMPI, on March 2, 1977, 12 African States, including Cote d'lvoire, signed the Bangui Convention which was to lead to the creation of the African Intellectual Property Organization (OAPI). Today, OAPI numbers 13 member States. Recent statistics from OAPI point to the lack of inventive activity within the member States. Their filings of patents represent less than 8% of all filings, with the rest originating from firms in the developed countries: USA, Japan, Europe. This lack of inventive activity is also felt in Cote d'lvoire. Indeed, from 1962 to 1986, first under the banner of OAMPI and then that of OAPI, only some hundred patents and utility models were registered from Cote d'lvoire. 57% of those applications came from undertakings and research institutes, 35% from non-ivorian individuals and 8% from Ivorians. In addition to those patent applications, industrial designs and distinctive signs, mostly trademarks, are regularly the subject of applications for protection. From 1984 to 1986, of 203 applications filed with OAPI, patents and utility models represented 6%, trademarks 30% and industrial designs 64%. Within Cote d'lvoire, the various applications from inventors and firms are filed with the Ministry of Industry, which processes them in collaboration with the registries of the Abidjan courts. Once this basic work has been completed, the applications are forwarded to OAPI which finally issues the industrial property title. Although Cote d'lvoire may welcome the fact that there is a certain awareness of industrial protection as shown by the growing number of the various applications for protection, that portion that originates from nationals nevertheless remains a preoccupation. With the aim of encouraging the efforts of inventors, the Ivorian Government, through its Ministry of Industry, has created a Young Inventors' Competition (CJI) and an Ivorian Invention and Innovation Show (SINOVA). These two institutions have already led to a number of results, among which one may note the creation of: - a drier for agricultural produce; - a cocoa-stripping machine "Decaboigny"; - a household gas indicator "chronogaz"; - a ridging machine; - etc.

48 page 46 Cote d'lvoire endeavors in all ways to encourage the young in order to make them more creative. In the very near future, it intends to concern high schools with an in-depth study of inventions and innovations made by youth in order to render them more consistent and patentable. Outside the African context, Cote d'lvoire participates in the protection of intellectual property at the international level. It is therefore a member of the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations, with 116 members. Cote d'lvoire shares the same way of thinking with a number of other countries since it is also a member of: - the Paris Union, set up in 1883 to protect industrial property, with a membership of 97 countries; - the Berne Union, set up in 1886 to protect copyright and which numbers 76 member States. At the time of this WIPO Symposium, the files of accession of Cote d'lvoire to the Hague Agreement Concerning the International Deposit of Industrial Designs, of November 6, 1925, and to the Patent Cooperation Treaty (PCT) of June 19, 1970, are in the hands of the Ministry of Foreign Affairs. Accession will therefore soon be a fact. II. PROTECTION OF APPELLATIONS OF ORIGIN AND INDICATIONS OF SOURCE IN COTE D'lVOIRE, EXPERIENCE WITH COFFEE A. APPELLATIONS OF ORIGIN IN INTERNATIONAL TRADE In Cote d'lvoire, appellations of origin and indications of source mainly concern agricultural commodities where the country has succeeded in obtaining a privileged place. The marketing of the basic products, or commodities, is carried out through well-established outlets. And it is these outlets that determine requirements for the qualities of the product. Markets exist for each basic product and even contracts that are specific to the product. Such is the case, for example, on the cocoa market that demands a dry product (7% moisture) free of foreign odor and of insects, comprising at most: For Grade I: 3% mildewed berries 3% slated berries 3% defective berries For Grade II: 4% mildewed berries 8% slated berries 6% defective berries These requirements are those of the contracts with AFCC (French Cocoa Trade Association) and of the US Food and Drug Administration.

49 page 47 We will speak of the coffee market and its specific features in the contracts with AFNIC (French International Coffee Trade Association). The palm oil market will tend towards compliance with the figure for acidity, whereas the cotton market will concern itself with the length and quality of the fibers, and so on. The whole set of market requirements, particularly as regards quality, commonly known as the rules of the market, supported by the national legislation of the producing and consuming countries, end up by giving each product its "curriculum vitae," affording it an appellation of origin or an indication of source. In that context, we shall speak of: Ivory Coast coffee Ivory Coast cocoa Ivory Coast pineapples Ivory Coast palm oil Ivory Coast rubber Ivory Coast cotton etc. These appellations of origin as such will enable goods to be sold on the market. The sales are carried out by the marketing bodies. Since the international market in commodities is an open market, information travels quite easily. A customer approaching Cote d'lvoire, for example, to buy Grade-I "Ivory Coast" or Grade-I "Ivory" is already aware of the properties of that coffee. On execution of the contract, if the goods do not comply with the established properties, the customer will apply to an arbitration board for reimbursement. However, it is quite possible that the customer (dealer or roaster) who receives "Ivory" Grade I that complies with the contract characteristics will mix it with coffee of some other origin or even with a subproduct of coffee. That is perhaps the interest of his business, to discover the consumer's taste and to make a profit. Such practices would seem to have currency in international trade, but in no way damage the appellation of origin or indication of source. Indeed, the coffee as it reaches the final consumer does not bear a label "Ivory Coast coffee," but frequently the composition of a blend of products. For example, one may find on the shelves of the supermarkets in Abidjan tins of coffee of the brand "Mocaf" which, although made in great part from Ivory Coast coffee, state on the label: "Mocaf coffee comprises 65% Robusta and 35% Arabica of best origin." Thus, no information on the origin of the coffee is given to the final consumer and it is simply held necessary to state the species of coffee: Arabica or Robusta.

50 page 48 This example shows that for coffee the use of appellations of origin is a useful practice for international trade. However, the protection of appellations of origin and indications of source raises the question of advisability. Is it advisable for Cote d'lvoire to protect "Ivory Coast coffee"? The reply would obviously be yes if Cote d'lvoire, as a developing country, had the means of ensuring that: - the middlemen dealers and roasters preserve the characteristics of "Ivory Coast coffee" right up to the final consumer; - the final consumer, aware of the fact of consuming "Ivory Coast coffee," likes it and forms the habit of drinking that coffee; - etc. Very roughly, if Cote d'lvoire had the possibility of marketing its coffee right up to the final consumer, the value of maintaining the taste and choice of the consumer would have led it to protect "Ivory Coast coffee." In addition to the appellations of origin and indications of source that are well suited to commodities, there exist also generic names that are subject to protection within the framework of OAPI and WIPO. These are brands of coffee manufactured locally. For example: - the multinational firm of Nestle protects the trademark Nescafe, which uses "Ivory Coast coffee;" - the roaster Jean Abile Gal protects the trademark "Elephant;" - the Abidjan roasting company protects its trademarks "Mocaf" and "Or Brun;" - the Stabilization Fund protects its logo comprising the inscription "Cafe de Cote d'lvoire;11 - etc. The difference is that the Stabilization Fund, as a State body in charge of coffee marketing, undertakes advertising and promotion for the appellation of origin "Ivory Coast coffee" whereas the roasters maintain their generic names. All of this, however, serves to promote the consumption of coffee. It is certainly necessary to satisfy the market conditions in order to sell a product, but it is not always sufficient to afford that product its title of nobility or its repute. The product needs a "plus" deriving particularly from its inherent value: aroma, organoleptic value... It is this "plus" that has given the appellation of origin "Ivory Coast coffee" its worldwide renown, its quality label, a reputation which is the outcome of continued efforts in those fields.

51 page 49 B. EXPERIENCE WITH IVORY COAST COFFEE Ivory Coast coffee is of the species Robusta, that has resulted from diligent research, effective support for the producer and painstaking quality control. 1. Scientific Research The plantations growing coffea arabica and coffea liberica have completely disappeared from Cote d'lvoire following various diseases, particularly rust. The adaptation of coffea canephora or Robusta to the ecological and climatic conditions of the country led the research undertaken by the Coffee and Cocoa Research Institute (IRCC) to focus its efforts on improved varieties of Robusta. Clonal breeding carried out over a long number of years led to the choice of seven high-yield clones distributed at farmer level. Research is still going on and continues to achieve improved varieties and adaptation of the methods of growing coffee. For example, compared with 1,320 coffee plants per hectare, it is currently recommended that the density should be 2,000 plants per hectare with the addition of fertilizers where necessary. In addition to variety improvement of local or imported material, scientific research in Cote d'lvoire has also applied itself since 1962 to the creation of a new type of coffee. This long-term endeavor was crowned with success since, in 1967, IRCC developed a coffee known as Arabusta. Arabusta is a hybrid of Arabica and of Robusta, merging the organoleptic qualities of the two types of coffee. Its introduction on the international market is certain to represent a minor revolution and a solution for those consumers who still hesitate as between the choice of Robusta and Arabica. For the moment, while waiting to fully control all agronomic aspects of Arabusta, the Government has set up an Arabusta Experimental and Development Center, CEDAR, of more than 400 hectares. The production of Arabusta, although as yet modest, is used for tasting sessions, for gifts to the embassies and by local roasters. In addition, Arabusta has already been introduced into the ISO Standard in the "vocabulary" and national regulations on raw coffee for export under the "Excellence" quality label. However competent the scientific research, it is only valid if its results are exploited at a full-scale level. Thus, for coffee, it was necessary to provide adequate support to the grower.

52 page Technical and Production Support Already in 1958, the Society for Technical Assistance in the Modernization of Agriculture (SATMACI) was set up. SATMACI constituted for more than a quarter of a century the link between research and the coffee and cocoa growers. It set up Coffee Cuttings Centers (CBC) that provided farmers with young plants free of cost. Its support staff travelled the plantations and taught growers the up-to-date growing techniques for coffee. For a long time, the Ivorian farmer drew his satisfaction from the fact of being a producer of coffee and of good-quality coffee. The attraction of being a coffee planter constituted one of the points of migration from the North towards the South, the coffee-production area. Even today, coffee-growing still concerns some 200,000 farmers and covers approximately 1.2 million hectares in Cote d'lvoire. Rapidly following independence in 1960, it became necessary to diversify agriculture. The need was to develop other crops such as oil palms, cotton, rubber-trees. The Ivorian farmer was to produce a little of all these crops, each with its own specific characteristics. The idea of easing the task of the traditional coffee-grower was put forward and has been materialized since 1975 by the industrialization of the internal coffee-marketing circuit. From 1975 to 1981, the whole length and breadth of the coffee-growing area was covered by 16 husking units and integrated industrial complexes at an overall cost of 26 billion CFA francs with a capacity to process 685,000 tonnes of berries to produce raw coffee. It then remained for the farmer to simply harvest the ripe coffee berries, dry them and let the factories do the rest. The further objectives of industrializing the coffee circuit were to ensure an improved quality of the merchant product by eliminating defects (black berries, breakage) and to increase the yield of husking. The efforts made in Cote d'lvoire to maintain the quality of its coffee have been continuously intensified, particularly as regards the field of quality control. Of the staff of the Stabilization Fund, a State agency responsible for marketing, more than two-thirds are employed in quality control through three services: the Internal Marketing Control Service, the Export Packaging Control Service and the Disinsectization or Phytosanitary Service. 3. Quality Control (a) Marketing Control The harvested and dried coffee berries are sold to approved buyers by the Government.

53 page 51 These buyers carry out an initial quality control on purchase using the apparatus in their possession. In the buyers' warehouses installed in the marketing centers, officials of the Stabilization Fund carry out a second control of the batches of coffee to be husked. This control is attested by a consignment note and a moisture sheet. The batches of coffee in berry then leave the buyers' warehouses for the husking plants. On entry, two further quality controls are carried out, one by the Stabilization Fund controllers and the other by the factories' analyzers. Acceptance of the coffee at the factory means that the coffee satisfies the valid quality standards. Once the coffee berries have been husked, the ungraded product is once more controlled prior to undergoing operations to produce either merchant coffee or export coffee. (b) Export Control The berry coffee leaves the factories as sorted raw coffee (freed from impurities, black berries and undesirable berries) graded, bagged and batched for export. Following this packaging, the exporter makes a packaging declaration to the Stabilization Fund. The officials of the Packaging Control Service then act to check whether the quality stated by the exporter complies with the state of the batches of coffee. If the Packaging Service ascertains that the exporter's declaration does not conform to reality, the exporter is heavily penalized for having tried to export a coffee that does not comply with the valid quality standards. The exporter then re-packages his coffee which, once it complies with the quality standards, can be given the verification bulletin (BV), a document that is necessary for export. (c) Phytosanitary Control The inherent quality of the coffee is not always sufficient to qualify for export. It is also necessary that the product should satisfy the phytosanitary requirements. The batches of export coffee stored in the warehouse, pending export, are regularly inspected by the phytosanitary services of the Ministry of Agriculture and any infestation with insects is notified to the Disinsectization Service of the Stabilization Fund for treatment. Two types of treatment are undertaken depending on whether the batches are in storage or are on the point of being exported. For the batches in storage, the Disinsectization Service carries out a treatment under sheeting with pesticides recommended by FAO, that is to say phosphine (PH3), actellic 50, and so on.

54 page 52 For batches ready for export, treatment is carried out at the disinsectization plant. The disinsectization plant is a large-scale complex of some 2 billion CFA francs. It is built on the Mallet (France) system comprsing large chambers in which a vacuum is created. Methyl bromide is then injected which kills all the insects hidden in the bags of coffee. Such treatment is rapid (24 hours) and enables the coffee to be loaded when leaving the plant. Disinsectization storage methods have also been installed in Cote d'lvoire. For example, one of the husking groups is equippped with airproof silos based on the Bouchard inert gas system. In these silos, the coffee remains free of all insect infestation. In addition, the method of storage by capatainer utilized by two 30,000-tonne plants also enables the stored coffee to be disinsectized. The above description of the control system for coffee in Cote d'lvoire is a brief overview of the efforts made by this country to ensure that its coffee is of irreproachable quality. Today, Cote d'lvoire coffee derives its renown from that quality. Numerous coffee-producing countries of Africa or Asia and well-known roasters have had the occasion to visit Cote d'lvoire to admire its industrial units for the processing of coffee and its disinsectization plant. Since any work of man may be improved, the Stabilization Fund has now launched a vast campaign to make the farming world more aware. It is carried out through the media and the factories and is aimed at the growers to incite them to take more care in the harvesting of the berries. C. PROTECTION OF THE APPELLATION "IVORY COAST COFFEE" The appellation "Ivory Coast coffee" is not protected in the formal sense. Cote d'lvoire has not as yet filed any application with the international organizations, such as WIPO or OAPI, for the protection of the appellation of its coffee. As already mentioned, for the moment, such protection is not of sufficient value for Cote d'lvoire itself or for the final consumer. In view of the current situation in the marketing of coffee, the protection of "Ivory Coast coffee" might seem superfluous. Indirectly, however, "Ivory Coast Coffee" is protected through the International Coffee Organization (ICO) that has drawn up the instructions for marking bags of coffee, which have been reproduced in the Decree setting out the rules for packing raw coffee for export. As regards marking, the Decree stipulates in Article 9 that "each bag must bear, on at least one side, in a visible and indelible manner, the following characteristics in order: ft

55 page 53 (1) In the upper half, in black or in color: (A) on the first line, the identification mark specified by ICO (International Coffee Organization) to be printed within a box of 60 cm x 12 cm comprising the code number of Cote d'lvoire (024), the code number of the factory or exporter (maximum 4 characters) and the serial number of the batch; (B) on the second line, a special mark chosen by each exporter or producer and approved by the Ministry of Agriculture. (2) In the lower half, in black or in color, in capital letters, 5 cm high, 4 cm wide and 1 cm thick: (A) on the first four lines: Produce of Ivory Coast Coffee Cote d'lvoire (B) on the fifth line, the species: R coffea canephora L.E liberio-excelsoides A.R.B arabusta (C) on the sixth line, the category and grade: EX E P S C Excellence Extra-Prima Prima Superieure Courante For the grades: GO Grade 0 Gl Grade 1 G2 Grade 2 G3 Grade 3 G4 Grade 4

56 page 54 MARKING EXAMPLE X X X PRODUCE OF IVORY COAST COFFEE R E GI As can be seen therefore, the marking means that only Cote d'lvoire, with its code number (024) as the indication of source, can export Ivory Coast coffee. Export can only be effected with the stamps granted by ICO for given quantities of coffee. This enables dealers and roasters, on the one hand, who receive the coffee to have less worries as to its origin and the producer countries, on the other hand, not to have to worry as to unfair utilization of their appellation of origin and indication of source. Cote d'lvoire, just as numerous other developing countries, is fully aware of the interest of intellectual protection. This is shown by its accession to the majority of conventions and agreements dealing with this subject. The copyright that protects literary and artistic creations enjoys more success in Cote d'lvoire. As for industrial protection, it follows the rate of industrial development. If one were to set up a classification of industrial protection in Cote d'lvoire, the protection of industrial designs would arrive well ahead, followed by distinctive signs (trade names, trademarks), and then a few patents for inventions and innovations. This explains the concern of the Government to encourage the young, through considerable efforts in training, to progress towards science and technology, fields that carry great hopes for the development of an inventive spirit.

57 page 55 Apart from industrial designs, distinctive signs and patents, appellations of origin and indications of source are a well-accepted notion even in the developing countries. However, recourse to protection of appellations of origin and indications of source is at present limited by numerous factors, including current trading practices and the sale of products at the commodity level. This would seem to explain why Cote d'lvoire, which obtains 63,7% of its export revenue from "Ivory Coast coffee" and "Ivory Coast cocoa" has not as yet protected its appellations of origin with OAPI, but through their selling structures. This is all the more true in view of the fact that Cote d'lvoire is the: 1st producer in the world of cocoa 3rd producer in the world of coffee 3rd producer in the world of palm oil 1st producer in Africa of pineapples 1st producer in Africa of cotton etc. All agricultural products which, together with the industrial and mining products, constitute the greater part of international trade and for which appellations of origin could have been protected, had there been a real necessity. That is why Cote d'lvoire considers the notorious laws of the market an aberration which frequently serves as a pretext for poor sales of commodities, that are the major sources of revenue for the developping countries. May the protection of appellations of origin and indications of source help in some way. We hope so. ******

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59 page 57 THE PROTKTION OF APPELLATIONS OF ORIGIN RELATING TO WINE IN THE MEMBER STATES OF OIV by Mr. Robert Tinlot Director International Office of Vine and Wine Paris, France

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61 page 59 _ Wines and spirits constitute the sector in which the concept of appellation of origin has found its optimum application. The quality of wine, and that is no secret, depends both on the soil (earth, climate) and on human factors. The custom of designating wine by its origin is therefore a very ancient one (the Egyptians, the Greeks, the Romans ^ have given us numerous examples). It is therefore in no way a surprise that the Statutes themselves of the International Vine and Wine Office include the matter of appellations of origin amongst the tasks of the Office. The OIV is an intergovernmental organization, independent of the organizations attached to the UN, since it was set up well before that» organization, in 1924, that is to say a few years after the League of Nations. 33 countries have joined the organization and a few others have an observer capacity. As we shall see, the OIV has always taken a serious interest in appellations of origin, even if, at certain periods, it might have been g thought that its interest was waning. Indeed, the difficulty of achieving a consensus derives from the fact that the pure and strict doctrine of the OIV has been confronted with wine-growing structures that differ from one country to another and also, for that reason, with varying degrees of development of the concept of a system of ^ appellations of origin that were also fairly different from each other. Three concepts are in fact to be found in the varying countries and these depend on the degree of development: - the indication of source is the least elaborated of these three» concepts and frequently constitutes the first stage; - the appellation of origin is the final stage in which the criteria of origin are associated with the criteria of quality, linked with natural factors and human factors;» - finally, a similar concept employs a denomination that indicates the origin or type of the product but is not geographical: Sekt, Ouzo, Pastis, Vodka and so on. To understand the situation in the international context, it is necessary to look at the regulations and usage specific to the various countries. Before so doing, however, we must review the situation within the OIV itself as it results from the resolutions adopted by the member States, which reflect the doctrine therefore approved at international level. ^ I. THE OIV AND APPELLATIONS OF ORIGIN FOR WINES 1.1 Ever since its establishment, in 1924, the OIV has concerned itself with the protection of appellations of origin, as it had been invited to do so by the Economic Committee of the League of Nations in its report of April 19, 1922 (document CECD 1 of October 15, 1923).

62 page 60 It is therefore of interest to note that the Agreement Establishing an f International Wine Office in Paris, signed on November 29, 1924, provides in its Article 1 that the Office shall submit to the governments any proposal capable of ensuring, in both the interest of the consumers and of the producers, the protection of appellations of origin for wines. In 1947, that is to say more than 20 years later, this provision was t applied by the International Wine Office that defined an appellation of origin (OIV Bulletin No. 296 June 1947, pp. 16 to 21). A further thirty years on, in 1977, the General Assembly in Nyons adopted a resolution that the OIV countries should take a unified position within the international bodies (records of the debates, No. 636, September 1977, p. 41, # Resolution No. 11). Developments then became more rapid: the following year, in 1978, in Athens, a new resolution confirmed the need to ensure the protection of wine appellations of origin throughout the world and, in 1979, in Stuttgart, a further step was taken, departing form the narrow concept of appellation of # origin, towards geographical indications in general; the resolution as adopted states: - that the geographical indications of products in the wine sector cannot be held generic and fall into the public domain; - that such geographical indications can only be used to designate products from the places stated and which comply with the law of the producing country; «- that such indications should not be the subject of national provisions, treaties or agreements liable to infringe the principles referred to above; - that the OIV States be invited to join in any initiative aiming to introduce provisions protecting geographical indications, complying with these principles, into the international conventions. The latter two items were adopted at a time when WIPO was in the process f of supplementing the Paris Convention with an Article lqquater on the protection of geographical names. The member countries of the OIV, concerned at the trend that was emerging, therefore felt the need to reaffirm their position. The resolutions that followed in subsequent years all tended in the same direction. In 1987, following a symposium held in Jerez, Spain, the OIV adopted a new resolution which perfectly resumed the problems that exist and which lays down the position of OIV: "The General Assembly, "having taken cognizance of the resolution of the symposium on appellations of origin held in Jerez, Spain, on March 16 to 18, 1987, "reaffirms: 6

63 page 61 "that the appellations of origin of wine products such as, for example, Jerez, Xeres or Sherry, may not be considered generic and may not fall into the public domain. "Considers: "consequently, that the defense of the concept of appellation of origin & demands the adoption of a firm stance for the protection of all the legitimate interests involved, particularly and more especially the right of consumers to obtain the quality products they seek and expect to find under the name of an appellation of origin, since it constitutes an exclusive right of use that is imprescriptible and inalienable and reserved exclusively to those products from specified areas that meet the conditions and characteristics of production applicable to them under the respective regulations. "Decides: "- to investigate the scientific possibilities offered by the new 9 instrumentation methods such as, for example, nuclear magnetic resonance (NMR) and by the statistical processing of data to objectively identify the origin, the vine variety and the year of wines and of wine spirits; "- to do all possible to ensure the defense of appellations of origin on the basis of the above-mentioned principles against abusive utilization, I with or without delocalization, and the usurpations that compromize the legitimate concept of appellation of origin." This resolution gives an approach to the legal definition of appellation of origin and, obviously, is based on preceding resolutions, particularly on the technical definition of appellations of origin given by OIV in It would therefore seem important to repeat the position of the OIV in that matter. 1.2 The Definitions of Appellation of Origin % The Technical Definition of the OIV The OIV definition, adopted at the 1947 General Assembly, was indirectly confirmed in the labelling standard adopted in 1980 and 1983 at the 60th and 63rd General Assemblies: H A wine or spirit may only bear an appellation of origin if the latter is sanctioned by usage and is of acknowledged repute. This reputation must derive from qualitative features determined by the following factors: 1. The natural factors that play a decisive part: the climate, the nature of the soil, the varieties, the exposure. These factors make it,, possible to define an area of production that must be demarcated. 2. Factors due to the intervention of man, playing a part of varying importance, growing methods, vinification methods. No wine may therefore enjoy an appellation of origin, and the advantages that derive therefrom, if it does not originate, for the least, from a clearly determined protection area and from clearly determined varieties.

64 page The Definition in the Lisbon Agreement This is the only international agreement that specifically concerns appellations of origin. It therefore contains the first definition of an appellation of origin expressly ratified by governments. Some countries have applied it as it stands, others have introduced it into their own legislation. Article 2 of the Agreement: 1. In this Agreement, "appellation of origin" means the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors Comparison of the two definitions OIV Lisbon Usage and repute Not required Not required Geographical name - quality and characte ristics:. natural factors. human factors - quality and characte ristics:. natural factors. human factors - as a minimum:. demarcated protec tion area. specified varieties No possible attenuation of the definition It should be emphasized that the OIV definition constitutes a recommendation to governments. It is therefore the outcome of a given situation. When the system was set up, in 1947, priority was given at that time to defining the appellations of origin that already enjoyed considerable reputation. The aim in 1947 was, above all, to give those appellations that had already acquired a reputation access to a status capable of ensuring effective protection. Such appellations are threatened both by those that usurp their name and by those who are unable to produce quality wines and wish to exploit the reputation of the most renowned products. This definition is that of the appellations. 'club" of traditional or historical However, the door is not closed.

65 page 63 After having laid down stringent rules, the OIV set out the minimum conditions for obtaining an appellation in order to create its repute at the same time as the usage. Thus, in fact, the sole requirement for a newcomer is the demarcation of the production area and that of the vine varieties; the human factors themselves become optional. We may also note that the OIV definition says nothing as to the geographical nature of the name given to the wine. Here, there are two opposing theories: one is that the name of the appellation of origin should be the geographical name of the place from which the wine originates and the other, on the contrary, holds that the demarcation of an area affords a geographical nature to the name traditionally designating the wine. The first principle has the advantage of simplicity and meets the wishes of those who, having no usage, create appellations of origin by invoking the final sentence of the OIV definition (see in this respect the United States definition in paragraph 1.2.5). The second principle is that of the traditional appellations, those that fully meet the most stringent requirements of the OIV definition and whose renown has survived political ups and downs and has remained a living reality; such is the case, for instance, of the name "Burgundy," which had no administrative existence in 1937 at the time that appellation was defined. It was in fact the name of a province that the new political structure had not maintained (as a result of regionalization, the name Burgundy has reappeared!). There are many other traditional appellations that no longer correspond to administrative regions. Falerna, in Italy, is a striking example: over 1500 years, since the days of Rome, the name of Falerna had acquired such a reputation that in France it had become synonymous for wine during the Middle Ages; however, in order to create a quality wine p.s.r.* a geographical name is added since Falerna has been wiped off the maps of modern geography. * Quality wine p.s.r.: quality wine produced in a specified region; category in the European Economic Community that corresponds to appellation-of-origin wines.

66 page The Practical Criteria for Demarcating and Defining an Appellation of Origin The criteria were decided by the OIV General Assembly held in The regulations concerning each appellation of origin for a wine or spirits obtained from wine should contain precise information on the following aspects: - production area; - vine variety; - minimum sugar value of each grape batch intended for making an appellation-of-origin wine; - minimum potential natural alcoholic strength; - maximum actual alcoholic strength; - yield per hectare; - growing processes, including:. minimum density of plantlings per hectare,. vine-growing mode and type of trimming; - vinification processes, taking into particular account the traditional processes of the region and possibly prohibiting certain practises such as:. continuous pressing,. concentration; - analysis and organoleptic test; - labelling rules; - quality control. The recommendations contained in this resolution adopted at Porto in 1984 are of course in full harmony with the EEC regulations established for quality wines p.s.r., but go well beyond the requirements of the 1947 definition. Although some countries have no difficulty in meeting requirements as precise and numerous as those resulting from the 1984 resolution, others, which do not have such a long tradition and also possess political structures that are not interventionist, are unable to accept those requirements The Example of a New Country: the United States In 1978, the United States established a definition of the appellation of origin for wine. T.D.A.T.F.-53, 43 FR August 23, 1978 (amended five times). This definition comprises three parts: - one refers under the term "appellation of origin" to that which is no more than the origin as meant by the customs: the name of a country; - the other refers, using the same term, to the indication of source and thereby permits the names of neighboring regions to be associated:. one state (and two or three neighboring states);. one county (and two or three neighboring counties). In both cases, it is the administrative or political boundaries that are taken into consideration.

67 page 65 - the third (wine-growing area) corresponds to the notion of appellation of origin as resulting from a combination of the two international definitions: "OIV" and "Lisbon." The name must be geographical. In that respect, the American definition is worthy of being quoted as an example: the geographical name may refer to either historical or present boundaries, it must be locally or nationally known as referring to a specific area. It should also be noted that the demarcated wine-growing area must be distinct from other areas in its geographical characteristics: climate, soil, altitude, etc. In order to satisfy the OIV definition, the reference to vine varieties should be given and, in order to satisfy that of Lisbon, reference to human factors should also be introduced. The American definition would seem very close to the concept set out in the Madrid Convention and which is to be found in the French Law of August 1, One may, however, point out that before achieving their current level of perfection, the historical appellations were most frequently a simple reference to the administrative boundaries. It will thus be necessary to examine closely the development of appellations of origin in the various countries concerned. 1.3 The Three Notions: Appellation of Origin, Geographical Indication of Source, Traditional Denomination For a certain number of products, the traditional denomination suggests the origin although it is not geographical. Certain traditional names, although they do not designate a place, nevertheless are applied to products of which the source is determined by reference to that name as a result of its acquired reputation. If we refer to the Lisbon Agreement, such names would not constitute appellations of origin since they are not names of countries, regions or localities. If we refer to the OIV definition we may accept that usage has afforded a geographical nature to the name traditionally given to the product once usage has led to acknowledged repute. However, the area of production must be clearly determined. The use of traditional names is more widespread in relation to spirits (Ouzo, Grappa, Aquavit, Pastis) than for wines, for which one may, however, give a few examples: Sekt, Retsina. One may also mention other designations that have become appellations of origin under national legislation after having been traditional denominations: Muscadet, Fendant, Ermitage, Vinhos verdes. The distinction between the geographical name given to a product and whose renown is due to that product and the traditional name which ends up being attributed to a region or a locality is difficult to make since place

68 page 66 names have frequently arisen by usage and by reference to very differing elements: saints' names, geographical descriptions, family names, reference to an event (whether historical or not), the existence of an ethny, specific agricultural or mining production, and the like; it is therefore not unjustified to consider that a traditional name may become an appellation of origin where it becomes the name of the production region. In such cases it is necessary that the production area be strictly demarcated. In an unpublished opinion by the legal service of the Council of the European Communities on the matter of denominations of spirits, the traditional denomination is defined in the following way: "A traditional denomination may be considered a product appellation born of usage and which does not enjoy any special statutory protection. This term should be distinguished from appellations of origin, indications of source and denominations of quality which, in certain cases, enjoy specific protection under Community law." In order to enjoy protection similar to that afforded by an appellation of origin or an indication of source, the denomination must designate "at least" in all cases a product coming from a determined geographical zone. Furthermore, such denominations only satisfy their specific function if the product that they designate actually possesses qualities and characteristics that are due to the geographical locality from which it comes. To summarize that rapid approach, one may note that the traditional denomination may become an appellation of origin under the OIV definition if the characteristics of the products that support it are due to natural factors and human factors and if the area of production is strictly demarcated on the basis of its natural characteristics. One may admit that a legitimate interest exists in such traditional denominations being protected where they are applied to products that derive their characteristics from local processes, on condition, however, that the area of production also be well defined as a function of such characteristics. II. IN THE OIV MEMBER COUNTRIES 2.1 It is therefore now time to describe the approach adopted by the OIV member countries. We may note incidentally that only two of the thirty-three countries entered reservations at the time of their accession as regards the protection of appellations of origin: Australia and the United States. This means that, although in the latter country the concept of appellation of origin is recognized and the majority of wine appellations of origin are in fact protected (cf. EEC-USA agreement), the United States has not committed itself to applying the OIV doctrine. Nevertheless, the 93 appellations of origin already determined in the USA suggest that the trend will be inevitable. As far as Australia is concerned, producers generally demonstrate a certain degree of fantasy, at present, in the designation of their wines. However, Tasmania has adopted legislation in respect of its own appellations of origin.

69 page 67 With the exception of these two countries, one may note that the actual concept of appellation of origin is not rejected and that the resolutions are approved even if they are not directly applied. There exist three different types of situation, with some slight differences, however The Countries That Apply the Traditional OIV Definition One may quote Algeria, Spain, France, Greece, Italy, Portugal, Morocco, Romania, Czechoslovakia and Tunisia. The characteristic of all of these countries is that they have specific legislation on appellations of origin in which the concept of appellation of origin is precisely defined. It should be noted that other regulations have frequently been derived from the basic texts in order to define varying degrees of quality within the category of wines enjoying an appellation of origin (e.g., in France and in Tunisia, the A.O.C. and the v.d.q.s.; in Romania, the V.S.O.; in Greece, the A.O.C.; in Italy, the A.O. controllata and the A.O. controllata e garantita). The concept of appellations of origin defined in these texts takes as its essential criterion the fact that wines may only enjoy an appellation of origin if they originate in a precisely demarcated production area. Mostly, this demarcation is carried out either on the basis of estates (Algeria, Spain, France, Tunisia) or on the basis of a more extensive geographical unit (Greece, Morocco, Italy). Apart from this production area, the vine varieties, the alcoholic strength, the yield per hectare, the growing and picking methods, the vinification methods, the analytical examinations and the organoleptic tests are also subject to the regulations. The overall purpose of such regulations is to maintain the specific quality produced by usage and the protection of the geographical name that is intimately linked to that quality. We may note that the above-mentioned countries are old wine-growing countries in which the regulations have been introduced to reaffirm and protect the reputation of wines whose fame already far exceeded the boundaries of their countries of origin The Countries that Use Appellations of Origin in Conjunction with a Qualitative Hierarchy This is the case particularly in the Federal Republic of Germany, Switzerland, Austria, South Africa and Israel. In these countries, the quality of the product frequently takes precedence over its geographical origin. In the Federal Republic of Germany, for instance, the law sets out the conditions under which wine may enjoy a geographical indication. The Qualitatsweine and the Qualitatsweine mit Pradikat must originate in a specific wine-growing region, reach a minimum alcoholic strength, be made from varieties of which the list is determined for each Land and be subject to analytical examination.

70 page 68 They then receive a control number and an indication of source (name of the region, parish, etc.). The Qualitatsweine mit Pradikat may additionally be accompanied by one of the following descriptions: Kabinett (selected wine), Spatlese (late vintage), Auslese (selected vintage), Beerenauslese (selected grapes), Trockenbeerenauslese (selected grapes left to partly dry on the vine). As we can see therefore, traditionally in the Federal Republic it is the description of the taste of the product and of its quality that take pride of place- In Austria, as in Germany, there is predominance of the references to the taste of the product and to its quality. In Switzerland, the Ordinance regulating trade in foodstuffs lays down that wines may bear an indication of the name of the region, of the place in which they have been produced, together with geographical names where they lead to no confusion as to the true origin of the product. The quality of the product is due more to the standards of production than to its geographical origin. South Africa, although it has not adopted the traditional concept of appellation of origin, is no doubt closer to that concept than the other countries mentioned above. Although the origin is not the most important criterion (possibility of blending), it nevertheless plays an important part since the production areas have been exactly demarcated The Countries in Which Appellation of Origin Wines are Identified by a National State Mark We may mention Cyprus, Hungary and Luxembourg. The geographical notion takes the form of a national State mark in these countries. It should be emphasized, nevertheless, that to qualify for such a mark the wines must meet a certain number of specified production conditions, that is to say: - be produced exclusively on the national territory of each country, that is to say not to have undergone any blending with wines from other countries; - be characteristic of their place of origin; - possess qualitative characteristics justifying their distinction from other wines and, in Luxembourg, meet the quality criteria set out in EEC Regulation No. 823/87; - in Hungary, originate in certain demarcated wine-growing regions known as "vineyard territories"; - not to have been blended with any other wine produced on the national territory, whereby in Cyprus an appellation of origin wine may be mixed with another wine up to a maximum of 20% if it preserves the specific characteristics of its appellation;

71 page 69 - be subject to the control of the State issuing the mark, specifically after having subjected the wine to analytical and organoleptic controls. It must therefore be noted, in conclusion, that in the countries involved the right to an appellation of origin is given by the State through its mark and derives more from the quality of the product than from its origin. 2.2 The Countries for Which an Appellation of Origin Is an Indication of Source Such is the case of the United States, as already mentioned. The legal situation in the United States corresponds fairly well with that of France under its initial regulations incorporated in the Law of August 1, 1905 (amended in 1908). At that time, in France, only the regional area of production was defined by its administrative boundaries and neither the varieties nor the area of production were regulated. 2.3 The Countries for Which a Geographical Indication Is in Fact a Mark The following countries would seem to enter into this category: - Argentina, - Chile, - Mexico, - Turkey, - the USSR. It must first be emphasized that these countries possess no specific text on appellations of origin. Indications of source are generally referred to in the provisions laid down on alcoholic drinks and beverages. We may note here that the concept of appellation of origin has become totally different to that we have already looked at. Wines are placed in varying categories (fine wines, special wines, etc.) and the geographical indication serves simply to state their source for the consumer. However, contrary to countries such as Germany, Austria, and so on, the appellation of origin is not necessarily geographical, nor is it bound to quality criteria. For instance, in Chile, "sunshine wines" is an appellation which, together with Pajarete and Elgui, are given exclusively to the best wines from a region. In all of these countries, therefore, the geographical appellation of origin is limited to a simple geographical reference and the appellation of origin is in fact used as a mark without any quality criteria being defined in relation to the wines to which it is applied. Chile has, nevertheless, established regulations in respect of the spirits known as Pisco. 2.4 Prospects for the Future A recent Symposium held at La Serena, Chile, in 1987, demonstrated the interest of the Latin American countries in appellations of origin for vine products.

72 page 70 A resolution, bearing witness, however, to the reticence of certain circles, basically those of the dealers, nevertheless shows the trend among f producers. The latter have indeed realized that in a sector suffering from overproduction the future must be sought in a regional or national collective identification of quality products. The following resolution was adopted: i "Having taken cognizance of the outcome of the Symposium on appellations of origin at La Serena, Chile, "Considering that it has been clearly shown that appellations of origin % are a means of great value in the development and promotion of the wine-growing industry in general, "Decides to recommend to the OIV that research, concerted action and dialogue between its members be intensified in order to promote the topic of appellations of origin and indications of source to ensure that they act as a factor of development both for the wine-growing industry in general and for the economy of each country or region in particular." For its part, the Soviet Union has put in hand a study of the qualitative promotion of its wine-growing products by means of appellations of origin. Thus, it would seem that the policy of quality demanded by today's difficult economic situation will need to develop the appellation of origin. This approach is the most likely one for succeeding in limiting yields and collectively improving quality. One cannot reasonably require producers to reduce the yield of their vineyards if, at the same time, they are not given the means of increasing the value of the wines they produce.

73 page 71 Bibliography - S. Kourakou-Dragonas: Appellations d'origine et denomination traditionnelle (Appellations of Origin and Traditional Denominations) and - R. Tinlot: La denomination traditionnelle (The Traditional Denomination) t (Bulletin de l'o.i.v., No , Nov.-Dec. 1987, pages 1028 to 1035). - R. Tinlot: La definition de 1'appellation d'origine (The Definition of the Appellation of Origin). Records of the Symposium on historical appellations of origin, Jerez, Spain, March 1987 (Bulletin de l'o.i.v., No. 675/676, May-June M. Lachiver: Vins, vignes et vignerons (Wines, Vines and Vintners), Fayard R. Pisani and D. Pilhol: Les vins d1 appellations d'origine dans le monde (Appellation of Origin Wines Throughout the World). Records of the International Symposium on appellations of origin for wines, Alessandria, Italy, May OIV publication. I - Y. Juban: La doctrine de l'o.i.v. a travers ses resolutions (The OIV Doctrine Reflected in Its Resolutions). Memoire DESS, ******

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75 page 73 THE PROTKTION OF APPELLATIONS OF ORIGIN AND INDICATIONS OF SOURCE OF CUBA (IN PARTICULAR, THOSE RELATING TO TOBACCO) by Mr. Adargelio Garrido de la Grana Barrister Empresa Cubana del Tabaco Havana, Cuba

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77 page 75 I am an attorney at the Cuban Tobacco Company, also known as CUBATABACO, 9 which was set up in 1966 by Law No with a view to centralizing the operations related to the export of all forms of Cuban tobacco. The manufacture of the cigars exported by Cubatabaco is in the hands of factories that were brought under Cuban Government control in 1961; they have retained the status of private companies, in spite of the fact that they are administered by the State commissioner. As some of you know, the appellation of origin is one of the things that serve to identify products, mainly agricultural products, as in our case. You should also know that appellations go through a three-stage process of degeneration which eventually makes them into the generic terms used to 0 designate specific types of product. The first of the stages affects those appellations which, in spite of their use being reserved for firms in the corresponding region or locality, may be used by third parties from outside the region or locality if they are accompanied by a "delocalizing" term, so that in such an eventuality the true f origin of the product concerned is apparent. We have used the qualifying phrase "in such an eventuality" because in fact this is a misuse of the appellation of origin concept. We have an example of this when we look at a bottle of wine bearing the words "Australian Sherry" or "South African Sherry," when in fact there is only one Sherry, the Spanish one, its name derived from that of the town of Jerez. The middle stage in the degeneration of an appellation of origin is the one at which, because there is so much confusion in the minds of consumers, many identify the appellation with the true origin of the product and others regard it as denoting a type or variety of product, whereupon they are authorized to make use of a "relocalizing" term, to make it apparent that the product actually does come from the region or locality. Relocalizing terms can be provided by such words as "real," "genuine," "authentic," and so on. The third and last stage is the point at which the geographical name has already lost its suitability, having become generic for certain products and evoking rather the characteristics of those products. An example of this is % "Eau de Cologne," which in the Federal Republic of Germany is a generic denomination and not an indication of origin, according to a ruling handed down by the German Federal Court. I agree with Professor Fernandez Novoa of Spain that the main cause of this degenerative process affecting appellations of origin is to be found in I the unlawful competition perpetrated by entities remote from the place in which the appellations originate. Another factor that influences the process is the lack of response on the part of the firms to which the appellations of origin belong. Even if that were not the case, that is, if the firms were not so passive, there would be two other factors that could still contribute to appellations becoming generic. Those are the absence of regulations for the defense of the appellations, and also the leniency of the courts, which at particular times have the possibility and opportunity of affording guidance.

78 page 76 The reason why I have given you this somewhat theoretical introduction is that the appellation "Habana" and its derivatives have been in danger of degeneration to the point of almost becoming the generic name for any rolled tobacco product. During the period of degeneration the circumstances described above were present. Precisely because a top-quality product is involved, the tobacco market has since the beginning of this century been invaded by brands which, in their attempts to imitate the best, unlawfully display Cuban appellations of origin. We could add to this basic cause the long time that has elapsed, in many cases more than 50 years, without any opposition at all being put up. One of the first steps taken in the fight against this degenerative process affecting appellations was when on December 27, 1967, Cubatabaco registered with the United International Bureaux for the Protection of Intellectual Property 18 appellations of origin, including "Habana," with all its derivatives, "Cuba" and "Vuelta Abajo." The export of raw Cuban tobacco through dealers to unknown destinations is a serious problem, as the raw material eventually comes into the hands of manufacturers who infringe Cuban trademarks and appellations of origin. There are companies that include a minute proportion of raw Cuban tobacco in the composition of cigars in an attempt to justify their nonetheless unlawful use of Cuban appellations of origin. It should be mentioned how difficult it is to detect such practices, as sensory parameters are involved that cannot, for the time being, be scientifically assessed in the laboratory. Since 1982 our company has been working on the task of winning back the "Habana" and "Cuba" appellations for the exclusive identification of cigars made by hand in Cuba with exclusively Cuban raw material. From the legal point of view our action has concentrated on the unlawful use of Cuban appellations of origin, on unfair competition and on consumer deception. From the economic point of view we are conscious of the fact that both the infringement of trademarks and the use of false appellations of origin are a threat to one of our most important sources of revenue, so that appropriate legal protection is of crucial to the economic interests of the country. Finally, from the political point of view, it is paradoxical that manufacturers in Western Europe should complain of the infringement of their trademarks by underdeveloped countries, whereas in this case it is they who are infringing the appellations of origin of a staple product of the economy of a poor country. The fight to protect appellations of origin is a paramount objective for the defense of the economies of underdeveloped countries owing to the precarious position of those countries, dependent as they are on agriculture, mining, handicrafts and other primary economic activities. The unlawful use of appellations of origin by developed capitalist countries is compounding the already complex set of problems arising from unequal interchange and foreign debt that is hampering Cuba's development.

79 page 77 The corrective action, which started in 1982, has concentrated on Europe, as that continent absorbs 90% of the Cuban tobacco exported by Cubatabaco, and also as it is there that there has been a profusion of boxes of "Cubanitos Special," "Brevas de Fidelio," "Barbudos," "Che Habana Sauvages" and other cigars and cigarettes sold under Cuban-sounding names. In view of the high cost of litigation, we have always negotiated to bring about the voluntary removal of the offending brands from the market, and where we have failed to achieve satisfactory results we have implemented a selective policy of bringing judicial action against specific marks in those countries that are most representative of the fraudulent use of Cuban appellations of origin. countries. We shall now make an analysis of the situation prevailing in specific First we should mention that one of the factors that accelerate the process of degeneration of appellations of origin into generic terms has been the absence of sufficiently stringent regulations to protect them in certain countries. Twenty-four brands using false Cuban appellations of origin have been discovered in Switzerland. Even though the presence of Cuban raw tobacco in the composition of the products tends to weaken our case under the domestic legislation concerned, we have given instructions for the sending of admonitory letters to the infringing companies. The number of infringements in the Netherlands is even greater than that in Switzerland. Prominent among those are the "Mini-Havana" and "Che" brands. In both cases we are engaged in friendly negotiations in view of the bargaining position of the company that manufactures them. The conclusion of bilateral treaties is a method that should be used more in the fight to defend appellations of origin. According to Fernandez Novoa, whom I have already mentioned, the introduction of this protection system is due to a commendable initiative taken by the Federal Republic of Germany. Indeed our own appellations of origin enjoy a high level of protection in that country thanks to the existence of a bilateral treaty signed between Cuba and the Federal Republic of Germany on March 22, 1954, for the reciprocal protection of industrial property rights. In that country there are 17 infringing brands, including 12 that have already been voluntarily removed from the market. The manufacturer of the remaining five brands has refused to do so, as a result of which judicial proceedings have now been brought. Moving on to Belgium, we have to say that this country is another focal point for the unlawful use of Cuban appellations of origin. Examples include "Havana Real A.L. Pedro" and "J. Cortes (Havana)." The "Gloria de Cuba" brand, which bears the words "Havana Blended Cigars" and belongs to the Belgian firm S.A. Maes, was one of those to be selected by our company for action seeking its withdrawal from the market. First they were asked to withdraw it voluntarily, which they did not agree to do.

80 page 78 On September 20, 1984, Cubatabaco brought its action against Maes. The firm contended from the outset that the mixture used for the manufacture of its cigars contained from 5% to 10% Cuban tobacco, and furthermore that the name "Habana" had ceased to be an appellation of origin both in Belgium and in other countries of Europe and indeed the world. They also claimed that the word-form "Habana" denoted a variety of tobacco plant that was grown as much in Italy as it was in Spain, Greece and other countries. The arguments of Cubatabaco were the following: - Use of the name "Havana" causes doubt in the mind of the consumer, as it is an unambiguous indication of a cigar of Cuban origin, and never a variety of tobacco plant. - The specific nature and quality of Havana tobacco is the result of the conjunction of a multitude of natural and human factors that can only be found together in Cuba. With regard to the geographical environment, we can say that, of the six old Cuban provinces, five are tobacco producers. The Vuelta Abajo domain in Pinar del Rio province is particularly famous. The soil in these areas is characterized by its fine, sandy softness. Climatic conditions are also of great importance, specifically during the growth of the plant and also afterwards, for the drying and fermentation of the leaf. It is then that the human factor begins to play its fundamental role. The stages at which the human factor is present are the selection of the tobacco, the making of the required blends, the rolling, the cutting according to measurement by categories, the fitting of the bands and finally the affixing of the Guaranteed National Origin Seal, attesting Cuban origin, on the packaging. - The use of the words "Havana Blended Cigars" gives the false impression that the cigars are manufactured in Cuba with tobaccos picked and processed in Cuba. - With natural products like tobacco, the specific characteristics of a product from a specific territory cannot become generic denominations. This can only occur with products that are manufactured according to specific methods, like the already-mentioned Eau de Cologne; the latter fact has been recognized by case law on more than one occasion. On January 21, 1985, the Belgian Court handed down its judgment, ruling that the use of the inscriptions "Gloria de Cuba" or "Havana Blended Cigars" for the advertising and marketing of tobaccos that did not come from Cuba was an infringement of Section 20(1) of the Law on Trade Practices. Nevertheless, the judgment did specify that the inscription "Havana Blended Cigars" would not constitute an infringement in so far as Cuban tobacco was used in the manufacture of the cigars and a clear indication was given of the country in which they were manufactured. Finally the Court ordered the cessation of the offending practice, failing which the defendant would be liable to pay ten thousand francs.

81 page 79 The arguments used by the Court to reach its finding include the contention that the use of the inscriptions "Gloria de Cuba" and "Havana Blended Cigars" mislead the consumer completely, in that his broadest understanding of "a Havana" is generally that of a tobacco product manufactured in Cuba with outer leaf, wrapping and filling that come exclusively from varieties of Havana tobacco grown in Cuba. Almost a month later, on February 15, 1985, S.A. Maes lodged an appeal with the Belgian Court of Appeal, reiterating its claim that the word "Havana" referred to a type of tobacco plant that took its name from the city of Havana. The Cuban party again disagreed. At the moment we are waiting for the Court of Appeal to pass judgment. It should be pointed out that this case has been widely hailed by the Belgian press as a step forward in the defense of consumer interests. Finally we come to the country whose guests we are today. France has also been one of the greatest infringers. From 1975 onwards the French market began to be flooded with an assortment of small cigars, manufactured mainly in Belgium and the Netherlands, the packaging of which referred to Cuban names and more specifically to the name "Habana." Seventy-nine infringing brands came into being in this way, including 29 manufactured by Seita, the State monopoly, while the other 50 were imported from other European countries. Prominent among the non-french brands were the "Cubanitos Special" of the Belgian firm Neos Handzame, which, with the aid of an extensive advertising campaign on the launch of the brand in 1980, penetrated the French market with wooden boxes of 50 cigars bearing reproductions of the island of Cuba and guaranteeing to retailers that they contained a "100% Habana" inner blend. It should be pointed out that the word "Habano" appeared six times on the various sides of the box, and that the name "Vuelta Aba jo" was also used, whereas the notice "Manufactured in Belgium by Neos Handzame" was in extremely small print on just one of the sides of the box. For all the above reasons, Cubatabaco and Coprova, our sole agent for this territory, sued the Belgian company before the Paris Tribunal de grande instance on February 17, 1981; in addition to the foregoing, the action was based on the following considerations: - clearly this was a case of unfair competition; - the word "Havane" was reserved for the designation of cigars manufactured in Cuba and composed solely of Cuban tobacco, and the "Cubanitos" cigars did not possess those characteristics; consumers; - the repeated use of Cuban indications of origin was misleading for - a name that constituted an appellation of origin could not be suitable for use as a trademark.

82 page 80 It should be mentioned that France, unlike other countries, apart from being a signatory of all the international treaties on the subject, has domestic legislation that affords protection to appellations of origin. In the specific case of Cuba, there has since 1929 been a bilateral convention between the two countries on the reciprocal protection of Cuban and French appellations of origin. On February 24, 1983, the Tribunal de grande instance handed down its judgment, ruling inter alia as follows: - The Neos company was prohibited from using the names "Havane," "Habana," "Vuelta Abajo" and "Havana Cuba," except to designate the composition of the inner blend in cigars manufactured and marketed by it. - The same company was found guilty of acts of unfair competition and condemned to pay 50,000 francs in damages. - A period of three months was allowed for the withdrawal from the market of all boxes of "Cubanitos," subject to a penal clause of 500 francs per reported infringement. In March of the same year 1983, the Neos Handzame company filed its appeal, the underlying arguments of which included the fact that the name "Havane" was not protected by the 1958 Lisbon Agreement, even though the first-instance ruling had actually stated that, with reference to Article 3 of the Agreement, the name was the French translation of the words "Habana" in the singular and "Habanos" in the plural. They also contended that the word "Habano" had virtually become a generic term, and that there was no unfair competition if one took into account the fact that the public could not be misled, as "Cubanitos" were sold at a price far below that of Havana cigars in general. On July 4, 1985, the Paris Court of Appeal upheld the finding of the first-instance court, subject to certain variations of a conceptual nature, essentially involving the removal of various headings under which the defendant had been ordered to pay the 50,000 francs. In a matter of hours this judgment became news. A number of dailies, such as "Liberation," "Le Monde" and "Le Figaro" published the ruling of the Court of Appeal in extenso. For its part, the September 9, 1985, issue of "Le Point" published an article entitled "II n'y a de havane gue de Cuba" (there is no havana but Havana de Cuba), which referred both to the action against Maes in Belgium and to that against "Cubanitos" in France, placing emphasis on the campaign carried on by Cubatabaco for the assertion of our right to our appellations of origin. Finally the Neos company filed a cassation appeal with the French Supreme Court, but abandoned it in 1986 in order to avoid an adverse ruling at that level. This precedent enabled us to make amicable representations to Seita seeking strict compliance with the treaties, with domestic legislation and with the judgment on the protection of Cuban appellations of origin. As a result of that approach, Seita undertook to withdraw its infringing marks from the French market within specified periods.

83 page 81 At the present time Cubatabaco is going through the process of sending warning letters to the non-french manufacturers of the 50 infringing marks that are still on the market. My friends, I feel that it is essential to tell you that, in conjunction with the above legal actions, Cubatabaco has since 1987 been carrying on an institutional campaign using the medium of advertising to fight against unfair competition in all its forms. This campaign, which at present is going through the specialized-journal stage, is based on the use of the three seals that distinguish true "Habanos." They are the "Cubatabaco" logotype, the notice "Hecho en Cuba" and the Guaranteed National Origin Seal introduced by the Law of July 16, So, in addition to combating unfair competition and resisting the tendency for our appellations of origin to become generic as a result of uncontrolled fraudulent use, Cubatabaco is also fighting to save the consumer from falling victim to such fraud. We therefore recommend to you that you pay a modicum of attention when purchasing your selected Cuban cigar, for only if you check first that it has the above-mentioned three seals can you be sure of the genuine pleasure of smoking a "puro Habano." Thank you. ******

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85 page 83 THE PROTECTION OF APPELLATIONS OF ORIGIN Al INDICATIONS OF SOURCE OF INDIA (IN PARTICULAR, THOSE RELATING TO TEA) by Mr. Prateep Kumar Das Gupta President Upohar International Pvt. Ltd Bombay, India

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87 page 85 Introduction Ladies, Gentlemen and fellow delegates. At the outset, I would like to thank WIPO and INPI for inviting me to speak on the subject of Protection of Appellations of Origin and Indications of Source in India, relating particularly to tea. I have come here to share my thoughts with you on a matter which in my country has so far been viewed from the angle of polite respectability rather than industry protection of Appellation of Origin or Source. As my presentation will make reference to the Tea Trade in India, I hope to entertain you with a short film on Indian tea, to enable you to appreciate what a tea estate with the garden planted bushes looks like, how tea leaves are collected and processed, and how your teas are packed. Ecologically formerly famous high grown teas - Ham (Nepal) and Darjeeling (India) - offer one of the two ways to effectively reforest the lower Himalaya and offer hope to the flooded peoples of India and Bangladesh. Showing of the film You have just seen the flat tea areas of Assam, plucking and processing of green tea leaves followed by the undulating tea areas in the Nilgiri (Blue Mountains) and Kerala in South India, concluding with Darjeeling hills where the 'champagne of tea' is grown. Its pastoral aspect in rolling countryside dominated by lowering mountains delivering water in its purest form, its scenes of tranquillity as groups of chattering ladies move slowly over the tea bushes and gracefully toss the first flushings into shouldered pannikins, its serenity in offering moments of insight round the shared infusion; these images appeal to the deepest needs of childhood imprinting on the well springs of the grateful life. You may be aware that India is the largest producer of black tea - over 650 million kilograms are grown and over 200 million kilograms are exported annually. In the emergence of concepts of property rights, the first patents were awarded not to mechanical inventions but to more social innovations. Around 500 years before the start of the Christian era, the Greek city of Sybaris was a famous centre of riotous living and its gourmands and connoisseurs were justly celebrated for their exuberance, taste and judgement. Because of the high status accorded to these social skills, the city fathers granted what would now be called patents to promote culinary arts - and conferred exclusive rights of sale to any innovator who invented a delicious dish of some novelty of taste or stylishness of consumption. History does not record how such patents were enforced. Twelve hundred years later, tea was a common beverage in China; two thousand years later, in 1657, the first tea auction was held in London. The British hongs and nabobs cooperated to move tea production into India from China via Kew Gardens in London, with the first plantations established in Assam in 1835, in Darjeeling in 1850, Cachar and Sylhet by 1856 and the Terai in Plantings expanded southwards until by 1870 tea gardens were a familiar and beneficent part of the agricultural economies in the Nilgris, Kerala and Sri Lanka.

88 page 86 As is well known, the period from in Eastern tea growing territories was characterised by military operations, strongly centralised government controls often enforced from foreign capitals and a concentration on the production of agricultural crops to feed the growing industrial populations of Western Europe. Perhaps surprisingly, given the formally classical education of many colonial administrators, the civilities of the Greek Sybaris were not passed onto the owners and developers of tea recipes. In the pre-independent India, the protection of intellectual property could be covered by personal patents in the gift of the Governor General of British India. He entertainingly granted some patents for new inventions till 1911 when this Act, Indian Patents and Designs Act, was passed. After attaining Independence in 1947, the Indian Government appointed the Patent Enquiry Committee and in 1948 introduced a Bill that collapsed in confusion in For twelve years there was surging controversy over the issue. Only in 1970 was a modified Patents Bill approved by the Indian Parliament. The Bill was strongly criticised by foreign experts as being a disincentive for the exploitation of foreign collaborators inventions. Although foreign experts are of variable relevance in India, to be correct, an annual average of 5000 foreign patent applications in 1970 dropped to 2,500 by The owners of a new know how in a developed country were not prepared to pass it on to India without secure protection in the developing country. It took Independent India 20 years to revise its patent laws and make them consistent with her development needs. Similar short-run Industry lobbying over the Trade and Merchandise Mark Acts passed in the legislative confusion of 1958 eventually destroyed the internal quality controls and source of origin labelling in favour of somewhat spurious quality levels claimed by trade mark owners themselves. In the frenzy of material development, antique concepts of ownership rights in intellectual property collapsed in favour of more specific rights attached to largely mechanical inventions. This sensibly reinforced economic development styles in Britain and Germany and also gave reassuring tone and practicality to legal systems anxious to produce precise and rigorous linguistic structures for the enforcement of contract. As this organisation knows, linguistic formulae for protecting intellectual property rights become formidably complex, a theme I will return to later in this text. Not only tea was subject to negligent transfer disrespectful of design rights in countries of origin. Carpets transferred, cotton clothing and garments transferred, fabric designs transferred, the ceramics industry as tiles, cups and saucers transferred - the list goes on. Many outsiders view the uncertain structure of the current Indian system for protecting patent and property rights with some apprehension. Properly so since, in a development context, it is probable that our own system inhibits rather than encourages investment and development. But as a nation rich in cultural and intellectual innovation if still backward in mechanical innovation, we must be wary of the introduction of patent systems biased to support mechanical innovation only. Having had so many of our most inventive products transferred away on a costless basis in the past, we may be forgiven for allowing ourselves a small smile that in more peaceable times, our abilities to copy brand names, software systems, designs in clothing, architecture, engineering plastic arts, Pharmaceuticals and other

89 page 87 products of the post industrial age in strong Western economies, now expose them to the powerful sense of injustice that India and other similar economies have endured for many years. In my culture, however, suffering is to be resolved not revenged and I therefore view the proposed activities of WIPO with positive and cooperative interest. To make this interest more specific to an industry in which I have spent much of my adult life, requires a short summary of the structure, performance drivers and potentialities of the international tea economy. On the demand side, we expect little increase in demand in developed economies in unchanged circumstances. Consumer perceptions of tea consumption are successfully managed by large companies offering tea blends of variable intrinsic quality supported by brand imagery of a powerful sub conscious quality. The consumer impulse to take a 'cuppa' is fully conscious, the brand imagery - often identifying tea with chimpanzees or cartoon characters of stunning eccentricity - satisfyingly effective, the unconscious drivers of consumption - totally ignored. In the United Kingdom, for example, 90 % of total consumption is now shared by four companies in an ex-growth market offering low financial returns where its products are routinely used by major supermarket distribution chains as price cutting, loss leaders. The cost to consumers is driven far below the unconscious values attached to its consumption and, in part, creates a circumstance in which income elasticities of demand are negative. In less developed countries, very positive income elasticities of demand lead to expanding growth expectations at the 3-4 % level annually. Such markets are typically described by the Indian circumstance in which 70 % of teas are sold loose on a garden basis and 30 % in packeted form by large companies on a branded basis, independent of origin of product. Such markets offer good growth prospects to the packaging and marketing abilities of multinational companies; the international ownership changes in industry structure and its concentration in recent years reflect this opportunity. On the supply side, matters could not be simpler. Producer gardens and suppliers are not subject to great economies of scale, all are in receipt of new hybrid high yielding bushes and their cloning technologies, labour supply tends to sharp excess and the foreign exchange needs of tea growing countries evoke a level of production easily absorbed by slowly growing world consumption. Intermediate markets at the wholesale level in Calcutta, London, Colombo and elsewhere are efficient, in that the large number of sellers are faced with a small number of buyers tending to force down producer prices in increasingly undifferentiated product markets. Concessionary finance from international sources including the World Bank act as an additional source of insurance that market 'shortages' will not develop as a consequence of financing restriction in impoverished countries. In this strategic picture, I do not see conspiracy but a well-founded strategy for achieving important market goals - many of which I would support - and based on realistic expectations of consumer behaviour especially in developing countries. One of the most extraordinary developments in the post colonial world - development that does not apply in India - has been the value which indigenous populations attach to the authority of Western-type brand names in choice of purchase decisions. Japan and the Yemen Arab Republic are the only economies which seem immune to this process.