28 - Innovating Food, Innovating the Law - Dev Gangjee
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28 - Innovating Food, Innovating the Law - Dev Gangjee

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Piacenza, October 15, 2011 ...

Piacenza, October 15, 2011
"Innovating Food, Innovating the Law"
Conference

DEV GANGJEE (London School of Economics, United Kingdom)
Geographical Indications: Between Two Paradigms

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28 - Innovating Food, Innovating the Law - Dev Gangjee 28 - Innovating Food, Innovating the Law - Dev Gangjee Presentation Transcript

  • Geographical Indications – Between Two Paradigms Dr Dev Gangjee Law Department, London School of Economics
  • GIs are signs [product] [place]
    • Article 22.1
    • ‘ Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality , reputation or other characteristic of the good is essentially attributable to its geographical origin.’
  • Examples of GIs
  • GIs recognised as IP
    • Analogy with TMs
    • Because they look like TMs (valuable intangible brands)
    • Function like TMs (communicate a range of messages – origin, quality, tradition)
    • So protect signs (not the product)
    • By sui generis registration systems; or TM law; or unfair competition law
  • How to justify protection?
    • Liberalism – need to justify property rights which restrict actions (otherwise people should be as free as possible)
    • Two paradigms of protection, each with its own logic
    • Global disagreement over which is better – TRIPS (US v EU)
  • Paradigm 1 – Communicative Logic
    • Paris Convention 1883, Art 10
    • Madrid Agreement 1891, Art 1(1)
      • All goods bearing a false or deceptive indication [of source] shall be seized on importation into any of the [Member] countries.
    • TRIPS Agreement 1994, Art 22.2
    • Prevent misleading or confusing uses
    • Test for infringement depends on consumer perception
    • May allow ‘Californian Champagne’; ‘Parma style ham’
    • Denominations can become generic
  • Rationale for Protection
    • Enables clear, uncluttered marketplace signalling
    • Protection allows consumers to trust signs, benefits producers, enhances efficiency
    • Similar to TMs, with added club goods dimension (co-ordination along supply chain)
    • Yet protection premised on communicative content of the sign is limited (what if the meaning changes as it travels across borders?)
    • Problem for international protection
  • Context Mediates Meaning – when is a designation understood as ‘geographical’?
  • Paradigm 2 – Terroir logic
    • Link between product and place; collective historical investment in the product
    • Exemplified by terroir (French wine appellation protection)
    • Explanation for stronger scope of protection (beyond confusion; property-like, since the designation is reserved )
    • Prevent generic use; prevent qualified use (Parma style ham) etc
    • ‘ Unique (traditional) products from unique places’ – unpacking this claim
  • Examples of ‘Stronger Protection’ Legal Regimes
    • Lisbon Agreement of 1958, Art 3
      • Protection shall be ensured against any usurpation or imitation , even if the true origin of the product is indicated or if the appellation is used in translated form or accompanied by terms such as “kind”, “type”, “make”, “imitation”, or the like.
    • EU Regulation 510/2006, Art 13
    • TRIPS, Art 23 (for wines and spirits only)
  • Deterministic Terroir as Anchor
    • Paris Convention negotiations:
      • ‘ Les dénominations de produits agricoles, dont la contrefaçon est générale, correspondent toujours à des conditions particulières de climat et de terroir qui ne sauraient être changées ni transportées.’
      • The designations of agricultural products, for which counterfeiting is widespread, always correspond to specific conditions of climate and soil which can not be changed or transported.
      • Initially Seemed to privilege physical geography
  • So reasons for prohibiting use
    • Paradigm 1. Effect on Consumers
    • Misled as to origin
    • Mislead as to quality
    • Paradigm 2. External Producers’ Conduct
    • Wrongfully misappropriating sign, because external product can never be equivalent [ terroir ]
    • Proprietary rights in the sign per se
  • Terroir in transition – recognising ‘traditional’ innovation
    • From mythic, ‘natural’ and geographically deterministic
    • To an emphasis on
      • Human factors
      • collective investment
      • ongoing innovation over time
    • Can see this in the shift from AO to AOC in France
  • The French Appellation Model
    • Regulatory response - 19 th century wine crisis
    • Require criteria for genuineness or authenticity - tell true from falsely labelled wines
      • Just origin requirement (physical geography)
      • Origin + Quality (production methods, human)
    • When is a wine genuinely deserving of the label ‘Bordeaux’ or ‘Champagne’? Bottled/blended in the region? Produced from grapes grown there?
    • Gradual emergence of a registration system to define product
  • Phylloxera & Subsequent fraud
    • Late 19 th and early 20 th c. - ‘the wine crisis’ ( la crise du vin ).
    • Three biological blights of American provenance (imported with infected vines) –
      • phylloxera (1863-1900)
      • mildew plasmopora viticola (1884)
      • blackrot uncinula necator (1898)
    • Attacked the leaves, fruit and roots of French vines.
    • Chemicals: Sulphur and copper fungicides but finally eliminated only after cultural resistance to grafting French vines on to American roots was overcome.
  • Grafting on to healthy rootstock
  • The Tipping Point… Cartoon from Punch , September 6, 1890, Rampant fraud, adulteration and over-production in the French wine industry after the Phylloxera crisis. So how best to re-organise and regulate it?
  • Legislative Experiments to define ‘authentic’ wine
    • Frauds – by what yardstick is truth determined?
    • Origin alone sufficient (AO) Law of 1905, 1908, 1919
    • Who decided boundaries of place of origin?
      • Local government
      • Courts
      • Producers + specialised agency
    • Attempt at “naturalization” of conditions and criteria that are fundamentally social and historical
    • Priority given to ‘physical geography’ understanding of terroir
  • Terroir as a pre-existing concept Regional products  local identity
    • Identity formation in post-revolutionary France, produits de terroir an important part.
    • The idea of a culinary heritage; gastronomy as an art form were also located in the politics of preserving ‘ local customs, language and folklore against the centralising pressure of the Third Republic.’
    • The creation of a national identity based upon the notion of regional and local diversity .
    • techniques adopted to construct this link between regional products and identity include festivals to celebrate regional produce, gastronomic fairs, parades and annual wine auctions
  • From the AO to the AOC
    • Deterministic terroir: the idea of a hermetically sealed and distinct geographical place giving rise, in an unmediated or ‘natural’ manner, to ‘unique’ products
    • Test question:
    • IF place  unique product
    • THEN guaranteeing place of origin sufficient
    • Shift from the AO to the AOC (1905 to 1935, 1947 )
    • The increasing importance of human factors
    • Subject matter: Wine  cheese  crafts
  • Developments driving this transition
    • Regions of origin difficult to define – which metric? Political acts, contested (Champagne riots 1911)
    • Physical geography may influence grape quality, but technique and savoir faire also matter
      • Interpretation of phrase ‘local, loyal and constant’ production techniques in the legislation
  • The Politics of Place
  • Human Element foregrounded
    • No longer just physical geography,
    • GIs have for the past 80 years been increasingly about protecting local skills, knowledge and investment – (TK)
    • This is the justification for differential treatment; They should not operate solely according to TM laws market efficiency logic
    • Signs should be ‘reserved’ to encourage
      • Embedded development & multifunctionality
      • Heritage dimensions – preserve lifestyles, livelihoods, landscapes
      • Alternative models of food production; better co-ordinated supply chains with a more equitable distribution of the profits (farmers/growers)
      • Recognise investment in savoir faire/TK; collective innovation and open source – only protecting name
  • Yet consequences of this shift…
    • Emphasising people de-emphasises place; People move around (Tibetan crafts); so do we loosen the geographical anchor?
    • Politics exist in the structuring of collectives; which interests in the supply chain are represented?
    • Drawing of boundaries – difficult for crafts, recipe based products
    • Technology transfer influences GIs (Champagne corks)
    • To what extent is innovation permitted for ‘traditional’ products? E.g. air dried hams – switch from natural drying to air conditioning, still traditional?
    • Mythical histories reconstructed for ‘traditional’ products ( Champagne Guy; Camembert Boisard)
    • Problem with PGI – production OR preparation OR processing in the region
  • Legal Innovations over a century
    • So legal innovation in
      • Creating an alternative to the communicative logic paradigm (protect signs based on message alone)
      • Expanding the circle of products beyond wine (but how do we draw the outer limits? Recipe based products? Crafts and textiles?)
      • Recognising the collective, inter-generational investment and ongoing innovation which sustains GIs over time
      • Compromising (EU Reg 510/2006; TRIPS) between communicative and terroir approaches – both allowed – but coherence of the system?