TRIPS does not require members to implement a separate system of protection for GIs–although most WTO members have, or are planning to. Because the United States was protecting GIs decades before TRIPS, there was no need to develop a new system specific to GIs. Further, practitioners, stakeholders and courts were already familiar with the trademark system. So, the United States decided to continue to protect GIs as trademarks through the United States Patent and Trademark Office (USPTO) register and under United States common law, which is discussed below.
Specifically, Section 4 of the Trademark Act of 1946 (as amended) provides protection for GIs as certification and collective marks indicating regional origin. And, although the vast majority of GIs are protected under Section 4, GIs can also be protected as trademarks with an adequate showing of acquired distinctiveness through use.
GIs can be viewed as a geographic subset of trademarks serving the same function as trademarks. They are source identifiers (geographic source of production); measures of quality; and can be valuable business interests. The USPTO is an intellectual property agency responsible for protecting GIs. In many other countries, agricultural departments decide registrability. This is because the majority of GIs are food and agricultural products, due to the direct connection with the geographic area they are named for. However, the universe of GIs includes other products such as textiles, handicrafts, cutlery, as well as services, as long as a nexus to the geographic area can be established.
Importantly, in addition to ex officio refusal based on prior existing rights, the United States trademark system requires ex officio refusal or disclaimer of the generic term(s). A disclaimer indicates that no exclusive rights are claimed to any generic terms. In addition, the register can be searched before filing and application and registration files are viewable online. All GIs are published for opposition; all opposition proceeding documents can be viewed online. The GIs must be used in commerce–at the time of registration for domestic applicants; and no later than six-and-a-half years after registration for foreign applicants. Registrations can be cancelled on certain grounds and must be renewed–just like trademark registrations. Further, there is an opportunity to appeal a USPTO administrative decision to a United States court. The USPTO register and website provide total transparency from the time of filing the application through post registration, including Trademark Trial and Appeal Board (TTAB) proceedings and subsequent appeals.