What are the differences and advantages between Collective Trademarks and Geographical Indications for Latin-American producers or service providers?

Although Geographical Indications (GI) and Collective Trademarks are similar in identifying and differentiating products and services from others, indicating their origin, avoiding confusion and preventing misuse of goodwill, they may present different advantages depending on their usage. The Geographical Indication is often linked to the territory and other socio-cultural and historical elements. Consequently, it demands immutability and perennity. Therefore, such a link presents greater resistance to innovation and the necessary adaptations related to climate change.

Alternatively, the Collective Trademarks are more flexible in implementing modifications and adaptations, for instance, to internalise sustainability-related practices. This characteristic may also be useful to the development of innovations. Besides, the trademark system is more consolidated by international agreements and national legislation, so it finds more facilitated access to other markets. These features may represent more economical options for producers and service providers, as well as ensure possible entry into other markets.

This line of research aims to comprehend those differences and identify their usages. Latin-American enterprises, especially small and medium-sized companies and start-ups, need accessible, dynamic and efficient legal instruments to develop innovations. This study can result in knowledge for better use of these instruments based on existing resources and realities.

Does Trademark Law have safeguards to avoid anticompetitive practices related to Collective Trademarks?

As mentioned before, Trademarks have the essential function of identifying a product or service and guaranteeing its origin. Nevertheless, other ones may be identified. This means that the more functions are protected, the more difficult it is to integrate competition-related issues into trademark law. Collective trademarks stand for one Intellectual Property right held by a group of members through a private agreement expressed in a regulation that sets rules and conditions. This raises concerns since that has the potential to facilitate anticompetitive practices.

In light of that, this line of research aims to identify possible anticompetitive practices related to Collective Trademarks and evaluate if trademark law presents the safeguards to avoid those negative behaviours of the trademark holders. Approach this issue is useful to deepen the debate and, potentially, give room for legislative improvements for a healthier market.

The Geographical Indications system and its incorporation into national legislation

Regarding Geographical Indications, Latin American countries did not incorporate in the same way the flexibilities available in TRIPS regarding the different levels of protection. This line of research aims to relate the adoption or not of TRIPS flexibilities in Latin American countries. Also, if extraterritorial protection of European GIs through Free Trade Agreements conflicts with prior users’ rights (under the exceptions to the exclusive right recognised by art. 24 of TRIPS) in the region. The protection of European GIs in non-EU markets affects competition and constitutes a market access restriction for local and imported products (although legitimised by the exceptions of the TRIPS Agreement). In other words, the extraterritoriality of GI protection is a restriction on international trade and intra-regional free circulation if the FTA is signed with regional integration blocs.