Misdescriptive Geographic Labeling Misleads Consumers

If the consumer is likely to be misled by the use of a misdescriptive geographic indication, then the indication may not be used.

By By Nate Garhart, partner, Coblentz, Patch, Duffy and Bass LLP

As consumers become more sophisticated and the world becomes smaller, a product's origin becomes more important. We want our oranges from Florida, our apples from Washington, and our wine from Napa.

In the interest of protecting consumer expectations in this regard, it is important that only products actually from these places be labeled as such. It seems obvious that we do not want a Texas orange farmer to label her crop "Florida oranges." But not all examples are so clear.

Chablis is a region in France, and Basmati an area in India. But, of course, you can get a California chablis, and basmati rice that was not grown in India. So where should the law draw the line? In the U.S., the law focuses on the consumer, stating that if the consumer is likely to be misled by the use of a misdescriptive geographic indication, then the indication may not be used.

Consumers generally understand, for example, that labeling a cheese "feta" does not identify anything about the geographic source of the product and is merely an indication of the variety of cheese. Thus, consumers are not misled into believing products labeled using geographic indications have any qualities unique to the place of origin.

This begs the question: How do we know whether the consumer will be confused? The first (and easiest) test is whether the indication has been registered as a "certification mark" with the U.S. Patent and Trademark Office. If the mark has been registered, there is a presumption that consumers will be misled by use of the term by non-qualifying producers. For example, the term "Roquefort" (U.S. Registration No. 571,798) has been registered for use with cheese by the Community of Roquefort, France. Thus, when consumers buy cheese labeled as Roquefort, they can be confident the cheese originated from Roquefort, France, and will have the qualities inherent in such cheeses.

But consumers can be misled even if there is not such a registration, and the U.S. protects geographic indications that are not registered as well. The term Cognac, for example, was recognized as a certification mark (for brandy from the Cognac region of France) despite the fact that it was not registered. On the other hand, the term Fontina (a type of cheese first produced in a region of Italy), which was not a registered certification mark, did not qualify. The test here is whether the term used has lost its significance as an indication of regional origin. This is most likely determined by looking at whether the term is commonly used on goods that originate somewhere other than the place named in the mark.

In the U.S., if producers do not work hard to protect their product's geographic indication through registration and/or other efforts, the significance, and thereby the ability to control use of the term, is at risk. Once the significance is lost, anyone â€" whether from the location or not â€" can use the indication. Illustrating this, consumers have no idea if their dijon mustard was made in Dijon, France, or Peoria, Ill.

Other jurisdictions treat geographic indicators much differently, however, and companies exporting goods using such terms must be careful. The European Union has a system that grants geographic indication protection to about 600 food products (e.g., feta, parmigiano-reggiano and gorgonzola), giving the geographic place of origin senior rights to control the use of the geographic indicator even if consumers are not misled. There is a grace period for the use of the terms, but unless the rules are changed, a company could soon find that it is prohibited from using what seems to be a generic term to identify its product.

Other jurisdictions have their own rules concerning geographic indications, and these must be considered before expanding into any such market. Companies may find that they are forced to adopt market-specific naming practices.

The issue of geographic terms has been steadily growing as the marketplace becomes less localized. Producers counting on their right to use such indications to identify their products must carefully ensure that the indication is not a protected one. And, depending on where the product is to be sold, this could include researching both the law and the status of the indication in multiple jurisdictions. Food manufacturers and marketers should be well advised on the existing and pending laws pertaining to their products and should carefully consider regulations in target markets and areas for potential growth.

Nate Garhart, partner with Coblentz, Patch, Duffy & Bass LLP in San Francisco, practices intellectual property law with expertise in the selection and protection of brands. Contact him at 415-391-4800 or e-mail: ngarhart@cpdb.com.

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