If you're keeping track of the many food-related trade disputes that have recently arisen between the U.S. and Europe, add "geographic indications" to the list. That list unfortunately already includes bananas, hormone-treated beef, foods derived from genetically modified sources and, more generally speaking, those falling under the "precautionary principle."
"Geographic indications" are geographic names attached to food products. Examples include Scotch Whiskey, Dijon Mustard, Darjeeling Tea, Parma Ham, Balsamic Vinegar, and many, or perhaps most, varieties of cheese: parmesan, feta, gorgonzola, stilton, cheddar, and swiss, to name a few. At issue is the level of protection these names deserve and which names are entitled to protection.
Geographic indications are currently protected to some degree under national laws. For example, the U.S. Trademark Act allows for registration of "certification marks, including indications of regional origin." Holders of certification marks are entitled to protect their marks against other manufacturers selling products under names that are deemed to encroach on the registered mark.
These monikers are also protected under international treaties, notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is part of the World Trade Organization (WTO) Agreements. The TRIPS Agreement defines geographic indications as those names "which identify a food as originating in the territory of a Member [country], or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographic indication." WTO member countries are required to provide the legal means for any interested party to prevent inappropriate use of a geographic indication. More precisely, inappropriate use of a geographic indication would be a moniker that suggests the good in question originates in a geographic area other than where it was actually produced and misleads the public as to the geographic origin of the good. (A more protective standard applies to wines and spirits.)
Prosciutto and cheddar
Applying this standard to cheddar cheese, for example, it seems clear that U.S. consumers have no reasonable expectation that products sold as cheddar cheese in the United States were produced in Cheddar, England. This is particularly true when the cheese in question is promoted as a product of Vermont or Wisconsin, and the consumer is not aware that a place called Cheddar, England, exists. Therefore, the TRIPS agreement currently does not require the United States to grant cheese producers in Cheddar exclusive rights to that name. On the other hand, U.S. consumers might expect a product labeled as "Prosciutto di Parma" to have originated in Italy in which case the TRIPS agreement would require legal protection of that name.
In some cases, however, the TRIPS Agreement allows a pre-existing nationally registered trademark to take priority over a geographic indication. This occurs when the trademark was registered in good faith before the TRIPS Agreement took effect or before the geographic indication received protection in its own country. Under the operation of this rule, "Prosciutto di Parma" originating in Parma cannot be labeled as such in Canada and Mexico.
As part of the ongoing Doha round of WTO trade negotiations, the E.U. is seeking to increase the level of protection for geographic indications. Generally speaking, the E.U. prefers to extend to all foods the higher level of protection currently afforded wines and spirits. The E.U. envisions a multi-national register of geographic indications. Once registered, a geographic indication could be used exclusively by the registrant, and it would no longer matter whether consumers are actually misled about the geographic origin of a particular product. According to a document posted on the E.U. Commission's Web site ("Why do Geographic Indications Matter to us?"), the E.U.'s objective is to "ensure that not only wines & spirits but also cheeses, rices and teas can enjoy the benefit of not being copied by producers from other countries by simply indicating ,'made in USA' or ,'style of Roquefort.'" In other words, the E.U. would like to close what it regards as a loophole in the current TRIPS standard.
The E.U. would also like to have WTO member countries remove prior trademarks where they conflict with geographic indications. As the Wall Street Journal recently put it, "Over the centuries Europe has given the world some of its finest foods. Now it wants their names back."
The food industry in the U. S. generally does not welcome the E.U. initiative, and it's easy to understand why. Our grocery store shelves are packed with foods labeled with geographic names including Swiss Cheese and Dijon Mustard, products that have long been produced outside of Europe. The proposed multi-national register of geographic indications, once it took hold, might be extended unreasonably to protect food names of this type, and not just "Prosciutto di Parma." In that case, U.S. manufacturers would have to re-name these foods and somehow convince confused consumers that nothing about the food -- other than its name -- has changed.
As with most issues, the U.S. food industry is certainly not of a single mind about geographic indications. Many foods produced in the U.S. enjoy the benefits of a geographic indication. Some examples are Idaho Potatoes, Florida Oranges, Virginia Ham, Maine Lobsters, California Raisins, and Vidalia Onions. In fact, to complicate this whole picture, the U.S. is currently pursuing a WTO complaint against the E.U. for its failure to protect U.S. geographic indications. The E.U. currently does not offer protection to geographic indications from other WTO member countries if the member country has not established an E.U.-style system for protecting Geographic Indications. The U.S. contends that the E.U.'s reciprocity requirement is inconsistent with its basic obligations under the TRIPS Agreement and other WTO agreements.
With most food labeling questions, particularly in Europe, the needs of the consumer are normally taken into consideration. From the standpoint of the consumer, sometimes geographic indications are a helpful indication of the quality of the product, and sometimes they aren't. A reasonable compromise between the U.S. and Europe in this area might involve some consideration of whether the geographic origin of a particular food has a meaningful impact on its quality along with a continued prohibition against actually misleading the consumer. It might also be established that generic names, such as Balsamic Vinegar, cannot be reclaimed by local producers, so as not to wreak havoc with the food industry.
Regarding the relevance of geographic indications to the consumer, at one end of the spectrum the climate in the world's various wine producing regions obviously plays a role in the quality of the finished wine. Perhaps at the other end of the spectrum, it is clear that high-quality Swiss Cheese can be produced outside of Switzerland. The U.S. should recognize and support protection for geographic indications where protection is warranted. However, when protection begins to resemble protectionism, and when benefit to the consumer is not at all evident, geographic indications become hard to swallow.
David Joy is a partner at the Washington DC law firm of Keller and Heckman LLP. He specializes in food and drug law with emphasis on the domestic and international regulation of food, food additives, food labeling, antimicrobial pesticides, and medical devices. He is a member of the District of Columbia Bar and holds a bachelor's degree in chemistry. For more information about Keller and Heckman, visit the firm's web site at www.khlaw.com.