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

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Piacenza, October 15, 2011 ...

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

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

Video: http://vimeo.com/31481806

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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]