Trademarks as Geographical indications
Guest blog post by Megan A. Cosgrove and Carissa L. Bouwer. Megan and Carissa are summer associates in the Sacramento office of DLA Piper. They attend University of the Pacific, McGeorge School of Law and will graduate in 2012.
Last weekend, we decided to host a wine and cheese party for a small group of friends. We ran down the list of everything we needed. Small plates? Check. Wine glasses? Check. Napkins? Check. Those little wine glass charms so people can identify their glasses? Check check. Brie? Check. Parmesan? Che…wait…we have a hard white pungent cheese, but I’m not sure that it’s from Parma. Does it need to be? And that pastry…we can’t just assume it’s Cornish. What if it’s not? We’d be liars. All of our closest friends would find out that our Cornish pastries weren’t from the UK and they would never come back for wine, cheese, and delish appetizers again.
Perhaps this isn’t a conversation you’ve had before a party. But let’s be honest, our tastes, and our conversations, have changed quite a bit since our college days. I’m pretty sure I never bothered asking where the beer in that keg came from, but it might be time we ask where our wine, cheese, and other food products come from. And interestingly enough, the birthplace of many foods and beverages we consume are actually revealed in the name. And a lot of imposters are going to have to change.
In 2000, the California Legislature agreed with Napa Valley wine producers that the term “Napa” signified quality in wine. They were concerned that novice wine buyers would be duped into paying more for a lower quality wine if the term “Napa” did not designate that the wine was actually from the well-known grape growing region of California. As a result, the legislature passed Bus. & Prof. Code § 25241, providing that wine made from grapes grown in other regions could not be branded “Napa wines.”
[Interestingly, a poll revealed that 91% of respondents felt it was deceptive to use a term such as “Napa,” reputable for wine, in the name of a wine that wasn’t from Napa. Moreover, 82% said that the name of the wine was a deciding factor for their purchases. CAROL ROBERTSON, THE LITTLE RED BOOK OF WINE LAW 135 (2008).]
Such disputes are happening all over the world—it is not limited to wine and it is not limited to the US. Of course, wine drinkers know that “Champagne” comes from a particular region in France and everything else is more properly referred to as “Sparkling wine.” But not everyone knows that there are similar restrictions on name usage for products as varied as cheese, ham, sausage, seafood, olives, beer, vinegar, bread, fruits, raw meat, and even vegetables.
These restrictions are called different names depending on what legal system they fall within. In France the Appellation D’Origine Controlee governs the geographical names of foods; in Italy it is the Denominazione de Origine Controllata, the EU calls them geographical indications; while the United States and Australia still rely on trademarks and haven’t established a separate system of protecting geographical indications (although California seems to be leading the charge on this issue).
The EU has three requirements for recognizing geographical indications. For the most part, only goods are protected, as opposed to services. The goods must originate from a defined area and must have qualities, reputations or other characteristics that are clearly linked to the geographical origin of the goods.
The purpose of geographical indication laws is to protect the reputation of regional foods. This allows producers to obtain more money for their products, and in turn promotes rural and agricultural activity. It also prevents inferior products from getting a free ride on the name and reputation acquired by the original product. And lastly, geographical indications protect not just the products themselves but the heritage of a country, symbolizing tradition and know-how that was developed over, sometimes, thousands of years.
Beyond the producer’s own economic interest, many nations see these designations as a way to protect national assets such as Sri Lanka’s Ceylon Tea or India’s Basmati rice. Other countries see the designations as a way to decrease competition. Maldova recently filed a dispute in the WTO claiming that Ukraine’s increased taxation on all alcohol labeled “Cognac” that was not produced in France or Ukraine was excessive.
For attorneys with business clients who produce food, it is important to stay up to date with new laws from around the world because restrictions on geographical indications are changing constantly. On one hand, if it’s good, it’s good. And we’ve found that if you feed people pastries, cheese, and wine, they’ll probably come back—no matter where it came from or what you call it. But then again, we are lawyers, and we have a duty to keep an eye on these regulations for our food and beverage-producing clients. This subsection of intellectual property is growing and producers need to ensure that they know what restrictions exist. That, and you’ll sound really smart at your next wine and cheese party.