July 20, 2004
Geographic Indicators

In another example of the European Union's overreaching desire to regulate outside its own borders, they have submitted a list of "Geographical Indicators" to the World Trade Organization that they insist must be limiited to products made in that location, worldwide. The full list of terms the EU is attempting to claim can be found here.

This is not an new idea, and in fact, the WTO already has rules in place to designate certain wines and spirits with geographical indicators. You will not, for example, find a Beaujolais produced outside France, or a Grappa that is not Italian. Additionally, the US government has recognized the legitimacy of certain other identifiers (such as Rocquefort cheese or Parma ham) and has prevented their use by US producers. However, the proposal submitted by the EU goes far beyond the rules already in place, and would affect currently generic terms worldwide. It also would overturn trademarks in place outside the EU. For example, a Canadian company holds a trademark for "Parma Ham" within Canada, and ham from the Parma region of Italy cannot be labeled as such. This proposal would strip the trademark from the company, presumably with no compensation.

Want a glass of Gallo Chablis with your sandwich made with Oscar Mayer bologna and Kraft Parmasan cheese? Under the EU proposal, all three products are EU specific terms that would have to be renamed. Not only does the EU proposal restrict langauge specific terms (such as Mortadella Bologna, the Italian name for the meat product made famous in that city) but also translations. Further, the EU has signalled that they will not settle for labels that use the terms "type", "style" or "kind" either. They want exclusive use of the Geographical Indicators. The list includes terms such as Port, Sherry, Burgundy, Feta, and Mozzarella, which are generic terms in this country, referring to the style rather than to the origin of the product. Nobody is under the illusion that Inglenook Chablis is imported from the Chablis region of France, or that Feta cheese from Wisconsin is from Greece.

At the same time that they are attempting to reclaim genericized terms, they are refusing to protect the few geographical indicators used by the United States; "Washington Apples", "Florida Oranges", and "Idaho Potatoes" have no legal protection in the EU, and any producer can use the terms with impunity. The EU has stated that they will not provide protection over these names until the US provides GI recognition to the more than 600 GI's currently recognized by the EU. (This goes far beyond the 41 the EU is trying to force on the rest of the world through the WTO.) Rachel Aaron had this to say in a brief presented by the International Bar Association's Intellectual Property and Entertainment Committee:

The United States and Australia, among other countries, claim that EU law is already very discriminating: a non-EU state can only receive full GI protection for its imports into the European Union by fully guaranteeing GI protection in its domestic market for all EU GIs. Thus, if, for instance, the United States wanted its GIs (generally protected as certification marks) - such as Idaho potatoes and Florida oranges - to receive the same protection in the European Union as EU GIs, it would have to recognize the 600 GIs designated by the European Union, and give them protection in the United States. They also allege that Council Regulation 2081/92 violates the Paris Convention for the Protection of Industrial Property and the TRIPs Agreement.

The US Trade Representative's Office has this to say:

The EU does not allow the geographical indications of other Members to be registered to obtain protection unless the other Member provides the same TRIPS-plus protection as the EU. Such "reciprocity" provisions are inconsistent with national treatment and most favored nation obligations under both trade agreements (TRIPS and GATT).

By not allowing the names of food products from the United States or other Members of the WTO to be registered absent reciprocity, the EU regulation treats imported products in a less favorable manner than EU products and does not grant the advantages that EU products receive to the products of non-EU Members. For example, the EU regulation provides government monitoring and enforcement of European geographical indications, but does not provide the same benefits to non-EU geographical indications.

This is of particular concern to the United States and other WTO Members as the EU is currently pressing for addition protection for EU geographical indications in the Doha Development Agenda while at the same time failing to meet its existing WTO obligations to protect the geographical indications of other WTO Members under its regulation. The United States, Australia, New Zealand, Canada, Chile and a coalition of other WTO Members sponsored a paper in the WTO outlining why the existing TRIPS Agreement provides sufficient protection for the geographical indications of all WTO Members thus making the EU proposal both unnecessary and prejudicial to Members' existing rights under the Agreement.

When it suits them, however, the EU can discard the whole concept of Geographical Indicators. Most cheese appellations were governed by the "Stresa Convention" of 1951, in which seven European cheese-producing countries agreed to restrict usage of certain names of cheeses. Paragraph 3(c) of this document contains the relevant information:

Article 3, provides that the appellations of origin of those cheeses "manufactured or matured in traditional regions, by virtue of local, loyal and uninterrupted usages" which are listed in Annex A are exclusively reserved to those cheeses, "whether they are used alone or accompanied by a qualifying or even corrective term such as "type", "kind", "imitation" or other term". Annex A lists: Gorgonzola, Parmigiana Romano, Pecorino Romano and Roquefort.

Annex B lists a number of designations for cheese, which are prohibited by article 4.2 for products which do not meet the requirements provided by contracting parties in relation to "shape, weight, size, type and colour of the rind and curd, as well as the fat content of the cheese". Listed in Annex B are Asiago, Camembert, Cambozola, Danablu, Edam, Emmental, Esrom, Fiore Sardo, Fontina, Gruyére, Pinnzgauer Berkäse, Samsöe, and Svecia.

Now, however, a row has broken out between the EU and Switzerland over the use of the term "Emmental". As this press release from a Danish firm indicates, the EU is crying foul over the Swiss government's decision to assign exclusive rights to the "Emmental" name. One of the EU's arguments is that the name is not protected under the 1951 agreement. Yet, strangely enough, it's in the same category as Fontina and Asiago, two varieties that appear on the list submitted to the WTO. Apparently they are hoping that nobody notices the double standard.

I would like to propose an interesting form of reciprocity: Require all items sold in the United States to be identified by generic names, ones that have no restriction based on geographic origin. Considering the enormous market represented by the United States (and the considerable amount of foodstuffs we import from the EU), I wonder how long it would be before the EU backed down.

(This whole thing was started by a brief article in the July issue of National Geographic magazine; the article does not appear to be available online.)

posted on July 20, 2004 04:28 PM


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