Introduction to concept of Geographical Indications - September 2008

1. An Introduction to Geographical
Indications
Slow Food Nation
29 August 2008
Judson Berkey
www.geographicindications.com
www.sustainag.org

2. Contents
Background on Geographical Indications (GIs)
Ways to Protect GIs – EU vs US Approach
Issues Arising from the Different Approaches
Where to Go Next
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3. Background on Geographical
Indications (GIs)

4. Why GIs are an Issue
In the beginning all food production was local and reflected the
unique environment and production methods used
However, the late 20th century has seen an intense concentration
of production due to industrial farming
• 80% of the beef, 65% of soybean, 60% of wheat, 50% of chicken, and 45% of
the pork processing in the US is handled by 4 companies (often the same 4)
• More generally it is estimated that approximately 60% of the international food
chain is controlled by 10 companies involved in seed, fertilizers, pesticides,
processing, and shipment
• Over the past 50 years, the farm population has declined by 85% in Germany,
France, and Japan; 64% in the US; and 59% in Korea and UK. In the US, 6% of
the farms receive 60% of total farm revenue
• Food retailing is similarly concentrated with the top 10 firms in Europe
accounting for 46% of total revenue in 2005 (estimated to grow to 60% in
2010). By 2010 it is estimated that the top 7 US food retailers will control 70%
of retail revenue
• Only 10% of the crop varieties used in the past are still actively farmed
This has led to a renewed interest in mechanisms to help preserve
and promote local and traditional production
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5. What Benefits Can GIs Provide
The goal is to provide a legal mechanism that allows producers in
a specific region (typically small in scale) the use of a specific
name to label a product as long as certain conditions are met
• Criteria: a particular quality, reputation or other characteristic of the product
must be attributable to its place of origin
• Examples: Parmigiano-Reggiano, Prosciutto di Parma, Champagne, Roquefort
This can provide a tool to
• help rural development
• preserve viability of small farming
• protect traditional knowledge and promote tourism
• shift from quantity to quality production
• capture economic rent (e.g. Colombian Coffee)
• preserve biodiversity and fight biopiracy (e.g. Basmati rice)
• promote economic development for developing countries (e.g. Darjeeling tea)
Potentially GIs could be expanded to protect other products
(handicrafts and even manufactured goods) that have a specific
reputation or contain traditional knowledge derived from the
location (e.g. natural medicines, carpets, silk, crystal, watches)
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6. However There are Concerns
Not all agree that specific legal protection for GIs is the most
useful way to promote development and to preserve traditional
products
Old vs New World
• In the EU countries, there is a long history of such systems and as of October
2007 there were over 650 names registered (over 150 cheeses, 160 meat-based
products, 150 fresh or processed fruits/vegetables, 80 types of olive oil) with
200+ applications being processed. More than 4500 wines and spirits are also
protected.
• However, in many new world countries (e.g. US, Canada, Australia, Argentina),
there is a tradition of making products similar to those found in Europe and
using the same names (e.g. Kraft foods sells Parmesan Cheese in the US).
• Thus, if these names now need to be reserved for the traditional food product,
companies fear they will lose the brand value they have built up over time (e.g.
Kraft has to sell its cheese as Pamasello in the EU already).
Developing Countries
• Large developing countries (e.g. India, China, Kenya, Vietnam) are well placed
to take advantage of such systems and have passed legislation to do so.
• However, many smaller developing countries do not have the infrastructure and
capacity to take advantage of any benefits (e.g. it is unclear if Gabon has the
infrastructure capacity to manufacture and market the Gabon Sweet Potato in
such a way as to take advantage of a GI). 6

7. Ways to Protect GIs –
EU vs. US Approaches

8. Challenges to a Global Approach - EU
GIs include agricultural products and other foodstuffs intended for
human consumption only (but there are some exceptions such as
mineral waters)
GIs are registered based on an application that states why the
product has a characteristic based on the place of production.
There are two classes of products
• PDO (AOC in Swiss system) – product must be produced, processed and
prepared within the geographic area and quality or characteristics must be
“essentially due” to the area. Cheeses are often PDO because the milk is
sourced from cows in a specific region raised in a specific way. (439 – Oct 07)
• PGI (IGP in Swiss system) – product must be produced, processed or prepared
within the geographic area (thus, not all three activities) and quality or
characteristics must be “attributable” to the area. Thus, the product does not
have to originate in area and just one aspect and not the majority must be due
to the area (e.g saucisson are often PGI because the meat can be sourced from
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different locations). (323 – Oct 07)

9. Challenges to a Global Approach - EU
Protection provided to GIs prohibits the following
• Any direct or indirect commercial use of the name on products not covered in the
application where the products are comparable or where using the name exploits
the reputation
Champagne in the EU can only come from the Champagne region of France
and not California
A French court even ruled that the use of term “Champagne” for a perfume
was illegal because it traded on the reputation of champagne for a high
quality product
• Any misuse of the name even if the true origin is noted or if the name is
modified with term ‘style’ or ‘type’
A “Champagne style” sparkling wine cannot be produced by a producer in
Bordeaux or a producer in the Champagne region using non traditional
methods (e.g. Merlot grapes)
Instead a different name must be used
• Any other false or misleading use of the name in such a way as to give a
misleading impression of where a product originates from
At least 80 other countries have similar systems
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10. Challenges to a Global Approach - US
In the US protection is provided under the trademark system via
“certification marks”
• Thus, GIs are not very different from any other trademark (e.g. Nike) and are
assigned to a specific entity which owns the name (in the case of certification
marks, this can be a collective entity that represents a group of producers).
• A key distinction is that certification marks are not necessarily location specific and
ownership can be transferred. GIs are location specific.
• Another key distinction is that certification marks generally protect only against use
of the mark on similar products and do not protect against a name becoming
generic or being modified with “style” or “type”. Thus, the use of Champagne on a
perfume would be allowed.
• Finally, certification marks are only valid for 10 years and must be enforced by the
owner. GIs are valid indefinitely and enforced by the state.
GIs do exist in the US – Idaho Potatoes, Vidalia Onions, Copper
River Salmon, Maine Lobsters, etc. (more than 800 wines and spirits
and more than 80 other products)
At least 50 other countries use a similar system
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11. Challenges to a Global Approach - WTO
The WTO agreements lean toward the EU approach with two key
exceptions
• Wines and spirits have legal protection closest to the EU standard.
Once a GI is registered it becomes illegal to use the name on any similar
product or service if it could have the effect of weakening the reputation of
the product.
This includes cases where the second product is labeled as ‘type’ or ‘style’
and would not necessarily be considered misleading.
The name also cannot be included in a trademark if the product is not from
the region
• Other agricultural goods (and handicrafts) have less protection.
The use of the GI is only prohibited when it is clear that the use of the name
would mislead the public as to the true origin.
In all cases, if the product is considered generic in a given country
or subject to a prior trademark, then GIs do not have an exclusive
right to the name.
• Thus, if Feta or Champagne is considered a generic name in the US, the fact that
it is a GI in the EU does not prevent companies in the US from using the name
on products in the US.
• Or if there is a trademark that uses the name already then the trademark can
continue to use the name.
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12. Issues Arising from the
Different Approaches

13. GIs are not always Straightforward
What is the geographic area of the GI
• UK PGI for Melton Mowbray Pork Pies
The defined jurisdiction encompassed an area where one company produced 62% of its
produced
pies while another company produced only 28%.
Thus, the second company claimed the area was too large and disproportionately
disproportionately
benefited the other.
The UK court ruled that the size of the area is not a priori limited in any way but the case
limited
has gone to the European Court of Justice for further review of criteria that should be
applied when deciding on the geographic area.
What is the actual product covered by the GI
• Prosciutto di Parma producers vs UK supermarket chain ASDA
ASDA was buying ham on the bone from an Italian producer that was part of the
was
Prosciutto consortium. ASDA then sliced and packaged the ham itself.
The PDO registration specified that the cutting of the ham must occur in Parma.
The ECJ ruled for the Prosciutto consortium but noted that if ASDA cut the ham in the
same way as in Parma it could be sold as such. This shows that the definition of the GI
is crucial and can be used creatively to ensure value add activities stay in the area.
activities
What about generic names
• GIs are prohibited from becoming generic but a question arises when a name
may already be considered generic – e.g. Feta Cheese.
Greece registered it as a PDO but Germany, Denmark, France, and UK opposed based on
sheep/cow’
claim that it is now a generic term for soft, white cheese made from sheep/cow’s milk.
The ECJ ruled that Feta must originate from specific areas in Greece based on facts such
Greece
as 85% of consumption of Feta per person per year takes place in Greece and fact that
other producers of Feta often allude to Greece in the packaging.
Thus, other producers cannot use term “Feta style” but must rename their product.
style” 13

14. GIs vs Trademark (Old vs New World)
The most famous case is between the American company
Budweiser and the boutique Czech brewery Budejovicky Budvar.
• The Czech brewery in Budweis has brewed beer since the 13th century.
• The American brand has become more internationally known in the 20th century.
This dispute helped lead to WTO litigation on the legality of the EU
GI system. The EU won on the point that in a country that
recognises GIs, the GI can co-exist with a trademark (even if the
trademark was registered first).
• The exception would be where the GI would lead to confusion with a trademark
that had a well established reputation.
• It is unclear if Budweiser would meet this standard, particularly given the fact that
the GI had been registered first in some countries.
What this does not address is the reverse case – e.g. in a country
that does not have a GI system can someone register a certification
mark for a GI where a trademark already exists.
• In Canada a trademark is already registered for Parma Ham.
• Thus, the Prosciutto Consortium must sell its ham under the name “Ham No. 1” in
Canada and not Parma Ham.
The EU was also forced to open its system to 3rd countries.
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• Cafe de Colombia and Napa Valley Wines have obtained GIs in Europe

15. How to Proceed at the Global Level
The EU has proposed making the registration of wines and spirits
mandatory and extending the system to all products.
• Once registered with the WTO, a GI would be guaranteed legitimacy and could
be used as the basis to invalidate a trademark application in any country.
• The US opposes both on legal grounds (fear of requirement for co-existence of
GIs with prior trademarks) and on practicality grounds (cost of setting up such a
system for countries that do not have any type of protection in place now).
• The US claims that the protection of GIs can occur under the trademark regimes
already in place under national law.
• Ultimately, the US is driven by economic interests of large companies that trade
on the traditional names (e.g. Korbel California Champagne; Kraft Parmesan)
The fear is not necessarily unfounded as the EU has published a
list of 41 products for which it would like to reclaim the names.
• These include products such as Feta, Parmigiano Reggiano, and Roquefort for
cheese; Champagne, Chianti, and Port for wine; Prosciutto and Bologna for
meat; and products like Turron from Alicante and Saffron from La Mancha
• Under the EU proposal, these names would be re-protected and fall under a new
WTO registration scheme which would even prohibit use of the words “style” or
“type” on a similar product
• The EU is signing bi-lateral agreements to reclaim some of these names (e.g. by
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2013 Chablis, Port, Sherry, and Champagne will be protected in Canada)

16. Where to Go Next

17. What is a Possible Outcome
There are two fundamentally different legal systems and
philosophies involved.
The EU approach would provide certainty. It also provides tangible
incentives for rural development and for shifting from quantity to
quality agriculture (Tuscan olive oil has a 20% premium; milk for Comte
cheese has a 10% premium)
Given the concerns of some new world producers about Feta-like
results, some products (particularly the EU 41) may need to
approached on a case by case basis.
However, US companies should not be afraid of name changes.
There can be opportunities (e.g when UBS rebranded it used this as
the basis of a new advertising campaign – You and Us.)
Compromise is probably necessary. No one is going to get their
way completely but no one seems willing to give right now.
• E.g. allow “Parmesan Cheese Made in the USA” to be sold in the EU
• E.g. allow the real “Prosciutto di Parma” to be sold in Canada under its own name
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18. The Situation in Switzerland
The Swiss Parliament passed a federal law in 1997 establishing
protection for geographical indications.
There are two classes of protection – AOC and IGP . This is
similar to the EU system.
With only one exception (Bündnerfleish) all the raw material (even
for IGPs) must at least be from Switzerland if not the specific
geographic area.
As of July 2008, there were 17 AOC products and 5 IGP products.
In addition, there were 10 AOC candidates and 6 IGP candidates
• 5 cheese (AOC)
• 7 meats (2 AOC, 5 IGP)
• 1 fruit (AOC)
• 2 spirits (AOC)
• 1 other (AOC - wood from the Jura)
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19. The Situation in Switzerland
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20. More Information
www.geographicindications.com – collection of resources for those
interested in GIs. Links to national laws, international regimes,
academic research, and organisations actively involved with GIs.
ec.europa.eu/agriculture/foodqual/quali1_en.htm - EU protection
of quality products website. Contains lists of all products with
protected status and provides updates on most recent activities.
www.uspto.gov/web/offices/dcom/olia/globalip/geographicalindica
tion.htm - information on how GIs can be protected under US
trademark laws. Also contains information on why the US
believes trademark protection is sufficient.
www.aoc-igp.ch – Swiss system of GI protection. Includes list of
proposed new products and links to contacts for products
currently protected.
www.origin-gi.com - international organisation for GI producers.
www.origin-food.org – EU sponsored research programs on GIs
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