Choosing the lesser of two evils: reevaluating absolute protection of geographical indications

This study delves into the complicated challenge of defining the optimal level of protection for geographical indications (GIs). It explores the choice between absolute protection and confusion-based protection, further dissecting the nuances between two methodologies for instituting absolute protection: the ‘Origin-Only’ and the ‘Origin+Quality’ criteria. By evaluating the administrative and error-related costs associated with these approaches, the article critically assesses the rationale for adopting either model, using France as a case study. Drawing from the philosophical principle of ‘choosing the lesser of two evils’, this article advocates for a strategy that acknowledges the inevitability of costs while opting for the protection approach with a minimal cost burden. The conclusion suggests that absolute protection, specifically the ‘Origin+Quality’ criterion, may offer a more efficient solution in minimizing overall costs, thus rendering it a preferable option for countries. Additionally, the article highlights the necessity for considering infringement exemption measures when instituting absolute protection or the ‘Origin+Quality’ test, to alleviate the associated error costs.