The Discipline of Geographical Indications in the New Generation of Free Trade Agreements of the European Union
Premio Jo Cox: Alessandra Moroni, Menzione Speciale per Temi Giuridici
Dopo aver pubblicato la minibiografia di Ornella Darova, la vincitrice, abbiamo chiesto anche ai quattro finalisti che riceveranno una Menzione Speciale di raccontarci chi sono e l’Europa in cui credono, attraverso un piccolo sunto della loro tesi. Oggi e’ la volta di Alessandra Moroni, Menzione Speciale per Temi Giuridici. La tesi di Alessandra si concentra sulla disciplina delle indicazioni geografiche dei prodotti, sull'impatto sui flussi commerciali dei paesi dell’Unione Europea e sulla possibile armonizzazione tra la disciplina dell’Unione Europea e quella degli Stati Uniti.
Graduated in Law with 110/110 magna cum laude at Università Commerciale L. Bocconi (October 2016), Alessandra Moroni also earned the Joint Certificate in International and Business Law within the Themis Law Network (in partnership with European and Asian law schools). She enriched her education by studying abroad at institutions like London School of Economics (London), ESADE Business & Law School (Barcelona) and Freie Universität (Berlin). She was editor in chief of Bocconi Legal Papers (a.y. 2013–16). After gaining some work experience in law firms in Beijing (China) and Hong Kong, she is now trainee lawyer at Freshfields Bruckhaus Deringer LLP (Milan office).
Tesi: The Discipline of Geographical Indications in the New Generation of Free Trade Agreements of the European Union
Geographical indications (GIs) are signs that link a product to a particular place and their use indicates that a product possesses certain qualities or enjoys a reputation associated with such geographical origin. As product identifiers, such signs may acquire a high commercial value and, hence, be a useful tool to take advantage of the new opportunities offered by the global marketplace. Yet, the path marking the history of their international regulation is quite complex and has so far led to an unsatisfying cobweb of fragmented, misaligned provisions. Therefore, utilizing the lenses of the European Union (EU), notoriously favouring a strong protection of GIs, this work aims at detecting the causes behind the current, ineffective international GI regime and, ultimately, at suggesting a possible related solution to the benefit of European commercial relations and global trade as a whole.
1. The Current International Framework for GI Protection
The controversial nature of GIs is primarily reflected in the current framework comprising the foundation for their international regulation. This work thus starts by scrutinising the major multilateral treaties governing GIs: the Paris Convention, the Madrid Agreement, the Lisbon Agreement and the TRIPs Agreement. The details of their provisions suggest how these treaties, far from the being effective legal sources for GI protection, are inherently weak and present several loopholes.
In particular, the cause underlying such ineffective, inconsistent discipline of GIs is traced back to the contrasting economic interests and legal sensitivities distinguishing the so-called ‘old world’ countries from the ‘new world’ states. These conflicting interests and sensitivities are deemed to find their climax in the divergent positions adopted by the EU and the United States (US), both at the national level and on the international plane.
2. The Difficult (but Feasible) Compromise between the EU and the US
The focus of the investigation consequently shifts to the core of the controversy, namely the contrast between the EU and the US as to GI protection. After remarking some key differences both in the national legislation and in the trade policy of these two economic powers, efforts are made to detect possible mechanisms for compromising the European and American perspectives.
In this respect, first, the EU internal system as to GI protection is thoroughly analysed, together with the related European external trade policy. The attention is primarily drawn on the GI provisions included in the latest free trade agreements (FTAs) negotiated by the EU with key commercial partners, such as South Korea, Colombia and Peru, countries of Central America, Singapore, Canada and Vietnam. Second, after briefly describing how the US deals with GIs in its internal legal order, the initially illustrated EU FTAs are compared with the corresponding trade agreements signed by the US with trade partners in North America, Central-Southern America and Asia.
In light of the conducted analysis, co-existence of GIs and prior, similar marks (and especially co-existence of European GIs and US trademarks) is eventually inferred and presented as the potential means to approach the EU and US legal schemes. Indeed, not only co-habitation of the investigated product identifiers would appear possible under the provisions of the respective European and American FTAs with third countries; but co-existence should not encounter obstacles at the domestic level either, thanks to certain identified legal instruments already available in both the EU and the US jurisdictions. Being the EU quite clearly in favour of the co-existence of GIs and trademarks, some final arguments supporting US economic interests in protecting GIs are also put forth. Consistently, the opportunity for the EU and the US to agree on a compromising solution as to GI recognition and protection is argued to be crucial for finally clarifying the legal framework in which to wrap up GIs in the international context.
3. Methodology and Policy Implications
The conducted investigation primary lies on the analysis of the GI provisions included both in the major multilateral treaties currently in force, as well as in the bilateral treaties recently negotiated, respectively, by the EU and the US with third countries. The analysis is enriched by relevant case law and literature, as well as personal inferences and critical conclusions.
The relevance of the investigation is twofold. On the one hand, in fact, it is assessed how the development of a GI system within the EU has proved crucial in order to promote the European integrated market, as well as to implement various public policies of great relevance. On the other hand, the analysis of the international sources governing GIs evidences that much is still to be done in order to achieve an effective protection of GIs at the multilateral level. Having identified the cause of the current deadlock in the conflicting approaches adopted by the EU and the US, the work concludes proposing certain GI provisions on which it is hoped the two economic powers could agree upon.
già pubblicato sui iMille.org — Direttore Raoul Minetti