TRIPS Flexibilities for GI Protection: The Experience of Latin American Countries

The protection of geographical indications (GIs) as intellectual property rights under the TRIPS Agreement has led to diverse legislative adaptations for its national implementation. TRIPS provides different levels of protection regarding GIs. Article 22 establishes a general standard, regarding misleading the public and unfair competition. Article 23 provides for an additional protection recognising exclusive rights for GIs that identify wines and spirits. Article 24 contains exceptions to such protection to balance the corresponding interests involved, with special focus on prior user rights. TRIPS also provides flexibilities to allow a protection system tailored to each country’s level of development and general interests. In order to determine if Latin American countries made effective use of these flexibilities when implementing multilateral commitments into regional regulations, this study conducts a comparative analysis of the Andean Community of Nations (CAN) and the Southern Common Market (Mercosur) frameworks, as well as in the national regulations of Argentina, Brazil, Bolivia, Chile, Colombia, Costa Rica, Ecuador, Mexico, Paraguay, Peru, and Uruguay. This analysis reveals that TRIPS flexibilities have been effectively used by the countries, although not uniformly, with notable differences among them. It is also worth noting that there is a growing trend towards a TRIPS-plus standard, usually resulting from the extraterritorial protection recognized by free trade agreements (FTA). Therefore, the research results highlight the importance of an adaptive approach for Latin America, as higher levels of protection do not necessarily provide the flexibility and adaptability required by agricultural practices to respond to new challenges.