Legal effect

Geographical Indications protection is granted through the TRIPS Agreement. Protection afforded to geographical indications by law is arguably twofold:

• On one hand it is granted through sui generis law (public law), for example in the European Union. In other words, GI protection should apply through ex officio protection, where authorities may support and get involved in the making of GI collective dimensions together with their corresponding GI regulatory council, where ongoing discourse with the government is implied for effective inspection and quality control.

• On the other hand, it is granted through common law (private law). In other words, it is similar to the protection afforded to trademarks, as it can be registered through collective trademarks and also through certification marks, for example in the United States of America.

GI protection systems restrict the use of the GIs for the purpose of identifying a particular type of product, unless the product and/or its constituent materials and/or its fabrication method originate from a particular area and/or meet certain standards. Sometimes these laws also stipulate that the product must meet certain quality tests that are administered by an association that owns the exclusive right to license or allow the use of the indication. GIs are recognised through either public or private law: depending on the GI protection system applied among the different WTO state members, either through common law or through sui generis law. Thus the conflicts between prior trademark registration and GIs is a subject of international debate that is yet to be resolved; this is what makes the GI system rather positionalclarification needed in terms of international trade negotiations. These conflicts are generally resolved through three intellectual property protection approaches: first in timeclarification needed –first in right approach, coexistence approach, GI superiority approach.

Arguably trademarks are seen as a valuable asset in terms of private business and their economic assets, while GIs are strongly connected to socio-economic development, along the lines of sustainability in countries rich in traditional knowledge.clarification needed The geographical origin of a product can create value to producers by:

• communicating to consumers the product's characteristics, which derive from the climate, soil and other natural conditions in its particular area;
• promoting the conservation of local traditional production process; and
• protecting and adding value to the cultural identity of local communities.

The consumer-benefit purpose of the protection rights granted to the beneficiaries (generally speaking the GI producers), has similarities to but also differences from the trademark rights:

1. While GIs denote a geographical origin of a good, trademarks denote a commercial origin of an enterprise.
2. While comparable goods are registered with GIs, similar goods and services are registered with trademarks.
3. While a GI is a name associated by tradition with a delineated area, a trademark is a badge of origin for goods and services.
4. While a GI is a collective entitlement of public-private partnership, a trademark refers entirely to private rights. With GIs, the beneficiaries are always a community from which usually, regardless of who is indicated in the register as applicant, they have the right to use.clarification needed Trademarks distinguish goods and services between different undertakings, thus it is more individual (except collective trademarks which are still more private).clarification needed
5. While the particular quality denoted by a GI is essentially related to a geographical area, although the human factorclarification needed may also play a part (collectively), with trademarks, even if there is any link to quality, it is essentially because of the producer and provider (individually).clarification needed
6. While GIs are an already existing expressionclarification needed and are used by existing producers or traders, a trademark is usually a new word or logo chosen arbitrarily.
7. While GIs are usually only for products, trademarks are for products and services.
8. While GIs cannot become numerous by definitionclarification needed, with trademarks there is no limit to the number that might be registered or used.
9. While GIs may not normally qualify as trademarks because they are either descriptive or misleading and distinguish products from one region from those of another, trademarks normally do not constitute a geographical name as there is no essential link with the geographical origin of goods.
10. While GIs protect names designating the origin of goods, trademarks – collective and certification marks where a GI sui generis system exists – protect signs or indications.
11. While with GIs there is no conceptual uniform approach of protection (public law and private law / sui generis law and common law), the trademark concepts of protection are practically the same in all countries of the world (i.e., basic global understanding of the Madrid System). In other words, with GIs there is no international global consensus for protection other than TRIPS.
12. While with GIs the administrative action is through public law, the enforcement by the interested parties of trademarks is through private law.
13. While GIs lack a truly global registration system, trademarks global registration system is through the Madrid Agreement and Protocol.
14. While GIs are very attractive for developing countries rich in traditional knowledge, the new world, e.g., Australia, with a different industry development model they are more prone to benefit from trademarks. In the new world, GI names from abroad arrive through immigrants and colonisation, leading to generic names deriving from the GIs from the old world.

Geographical indications have other similarities with trademarks. For example, they must be registered in order to qualify for protection, and they must meet certain conditions in order to qualify for registration. One of the most important conditions that most governments have required before registering a name as a GI is that the name must not already be in widespread use as the generic name for a similar product. Of course, what is considered a very specific term for a well-known local specialty in one country may constitute a generic term or genericized trademark for that type of product. For example, parmigiano cheese in Italy is generically known as Parmesan cheese in Australia and the United States.