30 - Innovating Food, Innovating the Law - David Lametti
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30 - Innovating Food, Innovating the Law - David Lametti



Piacenza, October 15, 2011 ...

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

DAVID LAMETTI (McGill University, Canada),
Trademarks and beyond

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30 - Innovating Food, Innovating the Law - David Lametti 30 - Innovating Food, Innovating the Law - David Lametti Presentation Transcript

  • David Lametti McGill University The terror of terroir
  • Caveats
    • Not a food law person as such
    • Rather, an IP-property theorist
    • Work is informed by an Aristotelean view of virtue, so-called “virtue ethics”
    • More concerned with “ought” than “is”
  • TMs, CMs, GIs
    • Ethical boundaries for these?
    • Current work with Matteo Ferrari and Pierre-Emmanuel Moyse on the relationship of geography to innovation
    • My role: is to remind of the ethical dimensions of what is at stake
  • Animating Scepticism
    • The relation between IP and innovation is tenuous, if not completely fallacious
  • And so to terroir , food
  • Terroir
    • What is unique about a geographical link to a product and/or its quality
  • Luxury Items
  • Geographic Qualities
    • Sun, soil, wind, water
    • And their impact on crops, etc.
  • Human Intervention
    • (Traditional) Methods
    • For curing Parma ham
    • For making Champagne
    • For making Amarone or ripasso
  • Terroir …
    • A combination of both unique geographical qualities and and human intervention/methods
  • How to protect terroir
    • TM: protects the goodwill by protecting the distinctiveness of mark, symbol, etc.
    • - probably insufficient to protect terroir
    • Passing Off – ‘Extended’ Passing Off
      • a common law doctrine that goes to good will in a type of product
  • How to protect (2)
    • Certification Marks
      • Third party registers a mark for use by those who meet the standard
      • Common for wines, etc.
      • Often national bodies or producer organizations
  • How to protect (3)
    • Geographical Indicators
      • More robust cousin of Cert Marks
      • Extra-national (EU, TRIPS) norms: quality, reputation
  • GIs (from Matteo Ferrari)
    • Art. 22.1 TRIPS: geographical indications are 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
    • Europe: reg. 510/2006:
    • - designations of origin: strong relation between food and terroir (quality exclusively or essentially due to origin)
    • - geographical indications: weaker relation between food and terroir (references to one specific quality and reputation)
  • GIs
    • Have a community-oriented dimension, a form of collective property: tradition
    • Confers status, etc.
    • As GIs are not owned by a specific subject; GIs cannot be sold; they cannot be given as securities (as is case with TMs and CMs)
  • How to protect (4)
    • Private certification bodies
      • Now common
      • Cf Matteo Ferrari’s presentation at this conference
      • Especially as regards quality: they transmit and guarantee this quality
  • Scope?
    • Particularly in relation to a diaspora
    • Or simply migration of peoples
      • People bring traditions, plants, animals
      • Often to hospitable climates (often that is the point of immigrating)
  • Terroir
    • Can it limit these other groups from producing (luxury) products according to traditional methods, bring products to market?
    • It is really the human element, I suppose.
        • -same method applied to different raw materials
  • And so, can we prevent…
    • A baked flat dough from being called a “pizza”?
    • A cheese made with sheep’s milk from being called “pecorino”?
    • A cured ham from being called “prosciutto” … “speck” … “Parma ham”?
  • Market “rights”
    • The ability to produce a product, participate in a market, and name one’s product in an accurate (most accurate?) and efficient (most efficient?) manner
    • Efficiency = reducing consumer search costs
  • If we go to far …
    • terroir becomes a terror.
  • To some extent, a new problem
    • Why? It is with supra-national bodies (EU, TRIPS) that the potential scope for CMs and GIs, and private bodies reach across borders, oceans, etc.
    • Moves with international trade
    • So how far should these principles extend?
  • To generic or descriptive terms?
    • Generic: If a term becomes the product itself
      • Champagne is close, though “sparkling wine” still suffices
      • Parmesan cheese?
      • Mozzarella?
      • Mozzarella di bufala?
  • Generic or descriptive terms
    • Descriptive
    • Cepages: Merlot, Syrah, Cabernet, Sangiovese, Reisling
    • versus classic blends of these: Chianti, St-Émilion
  • Confusion
    • A time-worn concept in this area
    • Not a perfect concept, but does a great deal of work
  • Use of qualifiers?
    • “ - style”, “-method”
    • “ Parma -style ” ham, “champagne- method ”, etc.
    • (or the contrary: Parmigiano Reggiano )
    • Can work in certain conditions
  • Consumer
    • How intelligent?
    • Cdn champagne case: no consumer would possibly confuse!
    • Anne Bartow: if male-targeted product, consumer deemed to be intelligent
  • Dilution-Diminishment-Tarnishing
    • A potentially separate standard for famous marks, that might be applied here too
    • Famous marks often high-quality
    • Fraught with difficulties (how distinct from confusion?)
  • Consumers
    • Are better equipped than we think
    • Are capable of reading labels!
      • Think of ingrediants
  • Ironically, the imprimatur
    • Helps restrict reach
    • As the marks/ GIs/ standards become more well-known, the consumer gets to now them and is less likely to ever be confused
  • Old world –New world
    • New world competition escapes domestic regulations regarding quality in the old world
  • Old world – new world
    • Need to be careful about how foods get transferred over history
      • Pasta
      • Pizza
      • Rice
      • Beans
      • Maize
      • grains
  • From the sublime …
    • Chianti
    • Amarone
    • Parma Ham
  • … to the ridiculous
    • Pasta
    • Pizza
    • Polenta
  • In the end
    • Confusion is a workable standard to prevent overreach; use of official standards themselves transmits information so well to consumers that competing products will be seen as inferior
    • Ironically, no need to ban the “competitors”, provided they make no false claims, not confusing
  • Quality
    • Will always win out in the end
    • The real relation is between terroir and quality
    • To some extent GIs will help identify quality, but can’t replace quality
  • Focus (for agro-food industry)
    • Quality (tradition, terroir )
    • No terror here!
  • Grazie
    • [email_address]