Extension of Article 23 of TRIPS to all Products

The extension under Article 23 of the TRIPS would permit every nation to protect its products. The main beneficiaries of this measure would be the least developed and developing nations of the world. This is due to the fact that such protection precludes products manufactured in places other than in the protected zone from utilizing the geographical name. Moreover, such prohibition is applicable even if the actual place of manufacture is declared[1]. An important development in international law is that of the demand for legal protection for Traditional Knowledge or TK, especially in relation to equity and sustainability. The predominant complaint is in respect of the exploitation by the dominant communities regarding products that had been discovered by the developing countries[2]. A large number of such nations are located in Africa and these countries will receive adequate compensation for their agricultural produce, handicrafts and products made by their artisans. Several members of the World Trade Organization opposed this GI extension, stating that it was a component of the mandate relating to the Doha Round of talks in this context[3].

GIs have been accorded specific protection by Section 3 of the TRIPs Agreement in Articles 22, 23 and 24. GIs have many similarities to trademark functions and have been recognized by the unfair competition law. Moreover, the absence of a property holder does not detract from GIs being considered an intellectual property right, because they relate to a particular geographical area[4]. Developing countries are keenly interested in protecting products that are manufactured in their specific region. This is due to the fact that in the absence of GI protection, multinationals would use these names to market products that had not been manufactured as per the local traditions or that have not originated from that geographical area[5]. In this manner, GIs would empower the developing countries to gain entry into the agriculture markets of the developed countries.

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On the 14th and 15th of December 2004, Mombasa was host to a workshop that dealt with GI protection in African Nations, wherein it was resolved to extend the extent of GI protection afforded by the TRIPS agreement. Such protection would assure the entrenchment of sustainable development for a variety of reasons, some of which are set out in the sequel. African farmers would be transformed from the mere producers of raw materials to exporters whose products have international recognition. The rural areas would offer lucrative employment opportunities due to GI protection, which would drastically reduce the migration of workers to urban areas[6].

African economies are mainly agrarian; therefore, GI protection would result in vastly improved living conditions for their citizens. Such protection enhances the value of African products because they would be promoted as the original product, which would result in improved market access and presence due to the formation of a niche for such products. Further, such protection results in the obtention of the best price for these African products, in addition, to safeguarding local expertise and natural resources[7].

Moreover, the consumers are benefitted due to the availability of a much wider choice due to the prevention of standardization. In addition, the biodiversity is preserved due to production being localized, which has the twin benefits of protecting time-honored cultures and national distinctiveness. Further, the value of land is enhanced by such protection, for instance tourism is benefited to a significant extent and some examples of this phenomenon are the wine routes in Cape Town and the oil cooperatives of Morocco, which are daily visited by a large number of tourists. In this manner, GI extension constitutes a tool for stimulating a holistic economic improvement, especially in Africa[8].

GI extension beyond alcoholic drinks was opposed by some countries. The protection extended by Article 23 of the TRIPS to all other products is of great importance, because it confers a vast amount of benefit upon the WTO members. The product of any nation – developed, developing or in transition – is in general unique to that country and therefore deserving of meaningful protection. Therefore, it can be concluded that the extension of Article 23 to all products is beneficial to the developing countries, since it permits them to sell their products in the markets of the developed countries, without being exploited by them.