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# Part I - Framing the Debate

## The Still-Contested Role of Geographical Indications in the Global Economy

Published online by Cambridge University Press:  22 June 2017

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2017

### 1 Geographical Indications between Trade, Development, Culture, and Marketing: Framing a Fair(er) System of Protection in the Global Economy?

Irene Calboli Footnote *
##### 1 Introduction

This chapter analyzes some of the topics on the current debate involving geographical indications (GIs) of origin that will be further elaborated by the contributors to this volume from a variety of perspectives and angles. As the title indicates, this volume focuses on GI protection “at the crossroads of trade, development, and culture,” with a specific focus on the countries in the Asia-Pacific region. This choice is due primarily to the fact that the analysis of issues related to GI protection in this region is, to date, not as extensive as the analysis in other regions, particularly in the Western world. This volume intends to fill this gap and aims, in particular, at analyzing the potential benefits, but also related problems, of GI protection for local and national development in Asia-Pacific countries. Trade- and culture-related issues, primarily issues related to the conservation and promotion of local culture and cultural diversity, are also central to the contributions to this volume. As the opening contribution of this volume, this chapter then aims at setting the stage and framing the context for other authors by offering an overview of the status of the GI debate, as well as emphasizing some of the trends that have become salient features of this debate in Asia-Pacific, and worldwide. These trends are, in particular, the following: the globalization of the GI debate beyond Western countries and beyond a “wine and cheese” agenda, or trade war, between primarily Western interests; the increased attention for the potential benefits of GI protection by developing countries and the often neglected attention to the potential problems associated with GI protection for local producers in these countries; and the increasing loosening of the definition of GIs as symbols of true geographical origin in favor of a definition granting exclusive rights based on the “historical reputation” of GIs.

Building on this premise, Section 2 starts by discussing how, after almost a century of limited attention at the international level, GIs have become one of the hottest topics in international intellectual property law today. Born out of the French tradition in the nineteenth century, and originally reserved to identify, and protect, the geographical origin of wines against counterfeits, GI protection was later accepted by other European countries and eventually by the European Union (EU). Then, from Europe, GIs become a global phenomenon and a topic of international controversy in the past two decades. In particular, GIs were one of the hot issues at the negotiating table that led to the creation of the World Trade Organization (WTO) in the late 1980s and early 1990s. Discussions over GIs continued to dominate part of the WTO Doha Development Agenda, even though WTO Members never reached any agreement on the issue.Footnote 1 Still, despite the lack of consensus at the international level, an increasing number of countries became interested in GIs in the following years. This interest reached beyond Western countries. In particular, countries in Asia, Africa, and South America have adopted, to date, national policies on GIs and taken part in the discussion of the WTO Doha Development Agenda. In the past decade, provisions related to GI protection have also become an important component of bilateral and plurilateral international trade agreements (FTAs) between countries from all continents.Footnote 2 To some extent, this is the result of the pressure exerted by the EU in its attempt to export a pro-GI protection agenda outside Europe. But many countries have become interested in GIs regardless of this pressure. In 2015, discussions over GI protection also led to the adoption of the Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Geneva Act) under the auspices of the World Intellectual Property Organization.Footnote 3 Even though the Geneva Act was, at large, the result of Western pro-GI diplomacy, it was supported by countries outside Europe.

Moving from the international to the national level, Section 3 first reports that several jurisdictions in Asia-Pacific have currently adopted national sui generis systems for GI protection. These national laws are largely modelled after the system currently adopted in the EU. Countries that have implemented sui generis systems include, to date, Japan, South Korea, Bangladesh, Sri Lanka, Australia, Cambodia, Malaysia, and Singapore.Footnote 4 Several countries in Asia-Pacific have also established, or are discussing the establishment of national GI registries to register both national and foreign GIs.Footnote 5 Countries that already operate national GI registries in Asia-Pacific include Cambodia, India, Indonesia, Malaysia, Thailand, Vietnam, and other countries.Footnote 6 Several of the contributors to this volume explain in detail the laws, including the national reforms, which have been adopted in these countries. Building on these descriptions, Section 3 focuses on the potential benefits of GIs for socioeconomic development as well as for safeguarding national cultural heritage in Asia-Pacific, and in general.Footnote 7 However, Section 3 highlights that GIs do not per se constitute a magic recipe, and that the long-term success of GI products depends largely on local producers controlling and maintaining the quality of the products, and developing savvy marketing plans. This point is reiterated by many of the contributors to this volume, and is probably the most important observation directed to GI producers, local and regional communities.

##### 2The Global, and Fragmented, Discussion on Geographical Indications: From France to Europe, to the World

The discussion over GIs generally brings about images of European wines, beers, and cheeses, and with it the decade-long controversy over the names of these products between Europeans and New World producers, primarily producers of European immigrant origins. As other scholars and I have recounted in detail before, this controversy sees, on the one side, the struggle of the Europeans to prevent the New World from copying the geographical names of EU productsFootnote 16 – primarily wines and cheeses – based on the argument that the New World free rides on these names and generally produces subpar replicas compared to the original products. In the New World, this argument is met, on the other side, with fierce resistance and the counterargument that European producers are trying to monopolize names that have been used as generic terms for decades, if not centuries, in the New World by immigrants coming from Europe.Footnote 17 These two images certainly embody sharply different points of view over the GI debate. Yet, they also shed an important light over the historical origin of the GI controversy – one that is tackled, from different angles, by the contributions in this volume: namely, these images show how discussions about GIs, and the resulting controversy, were born and have long been dominated by Western interests, literally by a “wine and cheese war” between the Old and New Worlds.Footnote 18 Western interests were clearly at the basis, and at the negotiating table, when the GI provisions in TRIPS were discussed and finalized in the early 1990s, even as the EU was the main proponent of GI protection and New World Western countries were the main opponents. Hence, despite the lack of overall agreement on the issue, both worlds agree on enhanced protection for wines and spiritsFootnote 19 – since both (Western) worlds had, and have, important interests in wines and spirits, as the main producers and exporters of these products.Footnote 20 To the contrary, both worlds could not find a common solution with respect to the protection of the names for cheeses primarily due to the resistance of national dairy industries. Several decades after the conclusion of TRIPS, the “cheese war” between Old and New Worlds still rages on.

In the past decades, however, discussions about GIs have expanded beyond the West and reached the attention of other continents and developing countries. Notably, many countries in Asia, Africa, Central America, and South America have expressed interest in GI protection and, as a result, have implemented or are considering implementing specific provisions to protect GIs, including registration-based sui generis systems.Footnote 21 In this respect, it should be noted that several famous GI-denominated products come today from non-Western countries – Darjeeling tea, Ceylon tea, Kampot pepper, Kobe beef, and Blue Mountain coffee are just a few examples of famous non-Western GI products. Contributors to this volume address in detail several of the national initiatives to protect GIs, particularly with respect to the Asia-Pacific region, and elaborate on the legislative history, and where possible the practical application, of these laws. Additional evidence of the increasing interests by non-Western countries in the GI debate is shown by the fact that discussions over GI protection are no longer just about “wine and cheese” or agricultural and food-related products – the latter also part of the GI agenda of Western countries. Instead, discussions on GI protection now encompass proposals for expanding protection beyond agricultural products, foodstuffs, wines, and spirits in those countries that still limit protection to these products.Footnote 22 Several countries in Asia-Pacific, for example, have long offered protection as GIs to handicrafts and artisanal products beyond agricultural products and food stuff, and have promoted the expansion of protectable subject matter to encompass these products internationally.Footnote 23 Along the same lines, many non-Western pro-GI countries are promoting, along with Western pro-GI countries such as the EU, the adoption of the higher level of protection currently provided by TRIPS to wines and spirits for all GIs, again because this protection may better suit their national interests in international trade by offering the possibility to protect the names of their products also in the foreign countries where the products are exported and sold to.Footnote 24

Still, even though discussions about GIs – more precisely discussions for and against GI protection – have certainly gone global today, it is important to remember that the modern system of GI protection originates from Europe and, more specifically, from the French laws protecting appellations of origin in the early twentieth century.Footnote 25 Remembering this fact is relevant both to better understand the development of the international movements supporting GI protection and to identify solutions to limiting a possibly excessive expansion of GI protection beyond the economic and normative reasons that were originally at the basis of this protection.

In particular, the origin of GI protection can be traced back to the attempts to prevent fraud in the marketplace for wines in France following the dramatic destruction of French vineyards by a pandemic of phylloxera in the late 1800s. Due to the pest, the production of French wine considerably diminished,Footnote 26 and this led to widespread counterfeits and adulterated products.Footnote 27 To counter this, France enacted a wine labeling law in 1905 prohibiting the misuse of wine names.Footnote 28 This law was revised in 1919,Footnote 29 and later in 1935.Footnote 30 Still, the adoption of the French laws in the early twentieth century was prompted primarily by the necessity to prevent unfair competition in the marketplace by unrelated parties using geographical names inaccurately while also securing the accuracy of the information about products’ geographical origin for consumers.

To justify the protection of geographical names, however, the French laws enshrined into the normative framework of protection the notion that location, and more precisely the terroir – a deep connection between the products and the land, as mentioned in the Introduction – where the vine was grown and the wines were made, was a “key ingredient in differentiating between wines by indicating a distinct origin.”Footnote 31 This notion represented a considerable step forward in explicitly protecting “geographical origin” from the previously existing laws on unfair competition and, above all, the protection granted to “indications of origin” in the 1883 Paris Convention for the Protection of Industrial Property.Footnote 32 Since then, the notion of terroir has been at the heart of the policy justifications for protecting GIs, including the basis of the argument that GIs are incentive for local and rural development due to the fact that they promote local products. To be precise, the 1891 Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods (the Madrid Agreement),Footnote 33 which predated the French Law of 1905 by a few years, already included a similar notion – the protection of “regional appellations concerning the source of the products of the vine.”Footnote 34 Yet, French negotiators certainly influenced the language of the agreement. In 1958, the notion of terroir was then confirmed in the Lisbon Agreement, whose imprint from the French laws also cannot be overstated. Certainly the most comprehensive system of protection for appellations of origin adopted at the international level, the Lisbon Agreement also included a system of international registration. However, both the Lisbon Agreement and the Madrid Agreement had few signatories and the majority were countries from Europe.Footnote 35 In May 2015, a revised text of the Lisbon Agreement was adopted after a Diplomatic Conference held in Geneva. Supporters of the Geneva Act of the Lisbon Agreement hoped that the new agreement may facilitate a membership increase.Footnote 36 To date, for example, several countries in Asia-Pacific are evaluating the feasibility of joining the revised Lisbon Agreement and the international registration system. Still, the Geneva Act was adopted amidst many controversies and it may not achieve the success hoped for by its proponents.

Ultimately it was only in 1994, with the adoption of TRIPS, that GIs really entered the international stage on a full scale since all WTO Members had to include a minimum-level GI protection in their national laws as part of the obligations established by TRIPS.Footnote 37 The same obligation applied to the countries that joined the WTO after 1994, many of which were countries from the Asia-Pacific region.Footnote 38 Still, non-Western countries were, at large, not active parts in negotiating these provisions, even though several of these countries participated in subsequent negotiations related to the advancement of TRIPS’ built-in GI agenda.Footnote 39 In particular, TRIPS established a double system of protection: a “floor level” of protection for all GIs against misleading and unfair competition-based uses of GIs;Footnote 40 and an enhanced level of protection for GIs identifying wines and spirits against usurpation of the GI names, including when “the true origin of the goods is indicated or the [GI] is used in translation or accompanied by expression such as ‘kind’, ‘type’, ‘style’, ‘imitation’, or the like.”Footnote 41 TRIPS also established several limitations to GI protection as a result of the requests of anti-GI advocates. These include provisions on generic terms and the possibility of “grandfathering” existing rights for trademarks that were in use or had been registered in good faith before the date of the implementation of TRIPS in the WTO Member States where the mark was registered, or before the GI was protected in its country of origin.Footnote 42

Nevertheless, the GI provisions in TRIPS did not fully satisfy the requests of the pro-GI countries, which managed to include into TRIPS the commitment to continue the negotiation – in the form of a built-in agenda mandating further negotiations on GIs.Footnote 43 In particular, TRIPS binds WTO Members to hold future negotiations in order to (a) discuss the creation of a multilateral system of notification and registration of GIs (similar to the one already in force under the Lisbon Agreement) for wines and spiritsFootnote 44 and (b) “to enter into negotiations aimed at increasing the protection of individual geographical indications [to the level of GIs for wines and spirits].”Footnote 45 Because of the delay in pursuing these negotiations – due again to the opposition of anti-GI countries – GI protection was also included in the agenda for discussion in the Doha “Development” Round of WTO negotiations in 2001.Footnote 46 The Doha version of the WTO GI agenda included again the creation of a multilateral register, no longer just for wines and spirits, but for all GIs, and the possibility of extending the higher level of protection provided to wines and spirits to all GIs.Footnote 47 However, no agreement on any of these issues could be reached when WTO Members met in 2003 in Cancun, Mexico.Footnote 48 As a result, multilateral negotiations on GIs have been stalled ever since, and more than a decade after the meeting in Cancun and two decades since the adoption of TRIPS, there is no sign that WTO countries may restart negotiations on the TRIPS’ built-in GI agenda any time soon.Footnote 49

Because of this impasse, discussions about GIs have continued primarily as part of FTA negotiations in recent years. Several of these FTAs, and the resulting “FTA maze,” are addressed at length in this volume, from the perspectives of both pro-GI and GI-skeptic countries. In a nutshell, pro-GI countries, led by the EU, seem to have been particularly successful in advancing their GI protection agenda as part of the FTA strategy. For example, the EU has negotiated the protection of a long list of EU GIs, including the “claw back” of several terms that are protected as GIs in the EU and were considered generic terms in the jurisdictions of several negotiating parties, in the EU–Canada Comprehensive Trade Agreement,Footnote 50 and in the FTAs concluded with Korea, Vietnam, and several South American countries.Footnote 51 To date, EU negotiators are continuing to press the EU GI agenda in trade talks with, inter alia, India, Japan, Malaysia, Australia, New Zealand, and the United States.Footnote 52 The EU is also discussing the extension of its previous stand-alone agreement on GIs with China, through which both the EU and China had registered ten GIs from the other parties in their national, or regional for the EU, jurisdictions.Footnote 53 Considering the importance of China, and Asia, as the export destination for EU products, these results are certainly good news for the EU. To counter the EU strategy, GI-skeptic countries have also engaged in trade negotiations, including GI provisions. This has been the case primarily with the Trans-Pacific Partnership (TPP), which was finalized in 2015, and includes provisions related to “generic terms” and registered marks that may be protected as GIs in other countries.Footnote 54 Still, because of the diverging interests of various TPP members, the final draft of the TPP leaves signatories free to negotiate different provisions in other FTAs, subject only to minimum requirementsFootnote 55 – again a partial victory for pro-GI advocates. Moreover, the United States officially withdrew from the TPP in January 2017, and the agreement may never be ratified by the remaining parties.Footnote 56

##### 3The Potential Benefits, Promises, and Problems of Geographical Indications for Economic and Social Development

As indicated in Section 2, besides being one of the most relevant topics of discussion in international trade today, the benefits derived by adopting a national system of GI protection have been discussed also at the national level in a growing number of countries. In particular, GI-related legislations have recently been adopted or updated in several countries, including in Asia-Pacific, as detailed by the chapters in this volume. Notably, new or updated laws have been recently adopted, inter alia, in Japan,Footnote 57 Bangladesh,Footnote 58 Singapore,Footnote 59 Indonesia,Footnote 60 and Cambodia.Footnote 61 In other countries, such as Sri Lanka,Footnote 62 Australia,Footnote 63 and New Zealand,Footnote 64 among others, legislative reforms about the current status of GI protection are pending or being discussed. In this respect, it is important to note that these reforms are also taking place in countries that have traditionally been skeptical of GI protection, such as Australia, which is currently debating a possible extension of GI protection for wines to other agricultural products.Footnote 65 A similar discussion may soon start in New Zealand, a country that is currently considering a bill to implement more detailed requirements and clarification for the current level of GI protection to wines. As mentioned earlier, the growing participation of Asia and non-Western countries in discussions on GIs also brought more attention to the request of expanding GI protection to nonagricultural products, namely handicrafts and artisanal goods, such as wood-carved and pottery products, textiles, and so forth. Developing countries are large producers of these products and seek their protection not only at the national level but also internationally. For example, pressure from developing countries (in exchange of protection for EU GIs in their jurisdictions) is certainly part of the reasons why the EU is now considering expanding GI protection beyond agriculture-based products,Footnote 66 and the proposal for a new Regulation in this respect has already received the unanimous approval of the EU Parliament.Footnote 67

Certainly, the rise in attention to GIs is again, at least with respect to some countries, the direct effect of FTA negotiations, particularly with the EU. This is the case, for example, of Singapore, a country with no national GIs, which has updated the existing law and adopted a registration-based system of GI protection as part of the obligations undertaken under the EU-Singapore FTA.Footnote 68 Other countries, however, already had comprehensive national GI regulations well before negotiating FTAs – this is the case of Vietnam, for instance, a country with a long-standing tradition of GI protection before the EU-Vietnam FTA.Footnote 69 Still, several of the countries, in Asia-Pacific (and elsewhere), that decided to implement a sui generis system of protection, including a registration system, may have done this under the indirect influence from the EU, because of previous colonial ties, or in order to imitate the EU system as a proven successful system in this area when they had to implement the minimum standards of protection mandated under TRIPS. This may be the case of countries such as Bangladesh, Cambodia, China, India, Indonesia, and Thailand among others. All these countries have a registration-based system for GI protection today. In certain instances, several countries in Asia-Pacific seem also to have been influenced by successful experiences of neighboring countries in this respect. For example, it cannot be excluded that, once India implemented a system of GI protection, this triggered discussions about adopting a similar protection in neighboring countries.Footnote 70 Presently, several of the member countries of the Association of South-East Asian Nations (ASEAN) are also stepping up their GI protection based both on a variety of FTA negotiations in the region and the example of successful GI experiences, such as those in Thailand and Vietnam.

In general, this renewed attention to GIs is driven primarily by the belief (or the hope) that GI protection can, or at least may, benefit the national economies of the countries adopting these laws. Several of the contributions to this volume discuss the potential benefits, but also the possible pitfalls, of GI protection in several countries in Asia-Pacific.

In particular, as I have recounted before, one of the staple arguments in support of GI protection – in Europe, Asia, and worldwide – is precisely the proposition that granting exclusive rights on geographical names associated to products coming from certain regions would translate into incentivizing and promoting local and rural development in those regions.Footnote 71 This argument rests on the consideration that groups of regional producers would be motivated to start investing, or continue to invest, in the production of certain types of products that traditionally originate from a given region, if they can secure exclusive rights on the geographical names of that region. This is because, in the view of the producers, obtaining exclusive rights on the GIs would guarantee the ability to capture the full profit for the quality and characteristics of the products, including the added value that the GIs could give to the products – e.g., the fact that consumers locally, nationally, or internationally may be willing to pay a premium price for sparkling wine from Champagne, tea from Darjeeling, and pepper from Kampot.

Hence, in order to secure these exclusive rights, collectivities of regional producers should work together to identify a common process that defines the uniqueness of the GI products, and submit the products’ specification with the application to register the GI. Producers should also identify quality control bodies, both internal and external, to certify the conforming of the products to the specification.Footnote 72 Once the GI is registered, the collectivity of producers (which generally also remain competitors in the intra GI market) is bound by the specification, and this guarantees the consistency of the quality and characteristics that consumers expect to find in all GI-denominated products.Footnote 73

In other words, GIs facilitate not only local development by tying producers to the land, but also producers’ cooperation to maintain the quality of the products for the collectivity. Overall, the impact of GI protection on development continues to strengthen when GI-denominated products become established in the marketplace, as GIs incentivize the producers to continue to invest in the quality of the products.Footnote 74 Moreover, since the land is the essential wealth, the heart, upon which the fortune of the GI producers is constructed, GIs also function as incentives for producers to adopt long-term strategies for safeguarding and enhancing the well-being of the land. In particular, GI producers are aware that the long-term health of the land and the resources of the region are crucial for the long-term success of GI products and generally work together to maintain the well-beingness of the region. Besides benefitting GI producers, this can have positive spillover on the region landscapes and in turn several other industries built around the GI products – for example, a variety of service providers, the tourism industry, including eco-tourism, and regional retailer of GI products and the producers of products that can accompany the sale of GI products.

Moreover, whereas GIs permit producers to capture the added value of GI products, GIs also operate as “badges of accountability” for those producers who decide to produce subpar products or simply not respect the requirements listed in the GI specification. In particular, under the current normative framework of GI protection, these producers will be forbidden from using the GI unless they return to producing following the mandated standards. In light of this possibility, the importance of quality control on GI products cannot be overstated. In this respect, several countries in Asia-Pacific have recently implemented or have revamped the systems of quality control of GI-denominated products in order to effectively ensure that the products comply with the product specifications.Footnote 75

The second argument in support of GI protection is that GIs provide consumers with relevant information about the GI products.Footnote 76 In particular, from a public policy standpoint, GIs offer to consumers, including retailers purchasing GI-denominated products for resale, information that can reduce the information asymmetries that consumers usually face compared to producers at the time of purchase. In other words, GIs offer additional information about the quality and characteristics of the products, and this offers consumers the possibility to make a better-informed decision about their purchase.Footnote 77 GIs can also offer relevant information about the safety and the health of the products because they offer information about the origin and the practices that go into making the products.Footnote 78 Similarly, GIs can provide information about the impact of the manufacturing and other practices used to produce the GI-denominated products on the environment, and even labor practices, including overall human rights. Again, this set of information could assist consumers in identifying potentially healthier foods for their individual needs, or artifacts made with traditional or environmentally friendly manufacturing techniques for those countries that provide GI protection beyond food-related products. As mentioned earlier, GIs can even reduce possible “contagion effects” due to negative incidents in a given geographical market for a certain type of product.Footnote 79 This was the case, for example, with respect to the scandal of the contaminated “mozzarella di bufala campana,” a GI-denominated product from Italy.Footnote 80 In this case, consumers could use the information provided by the GI to know that they should avoid the products originating in the affected region, while they could safely continue to purchase the generic product “mozzarella di bufala” from other regions.

In addition to the arguments that GI promotes economic development and reduces information asymmetries from consumers, another argument has been brought forward in recent years to justify GI protection. This argument is directly addressed by several contributions in this volume and centers on the proposition that GIs can protect the cultural identity of local and regional communities, which in turn may contribute to promoting cultural diversity.Footnote 81 The growing importance of GIs under the lenses of culture-related concerns finds additional support in two separate conventions that have been recently adopted under the patronage of the United Nation Educational, Scientific and Cultural Organization (UNESCO): the 2003 Convention for the Safeguarding of the Intangible Cultural HeritageFootnote 82 and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.Footnote 83 Under the UNESCO framework, GIs seem well suited for the protection of culture-based interests because GI products frequently relate to local and traditional knowledge of the region where the products are made.Footnote 84 Thus, granting exclusive rights to GIs could serve to promote the continuation of traditional manufacturing techniques, which could otherwise succumb to the competition of mass production techniques. Moreover, GIs directly contribute to reinforcing local identities by again promoting the making and selling of local products. As others and I have suggested, this may promote greater product diversity in an economy where products would be otherwise increasingly similar due to the globalization of trade and the de-localization of product manufacturing.Footnote 85

Hence, as Justin Hughes pointedly observes in this volume, for all their potential benefits for local development and culture, GIs are not a magic recipe for success for local producers. Instead, several of the GIs that have been registered in the EU, and elsewhere, to date, have not brought to their producers more than some modest returns and, at times, the same returns as non-GI products. This has been proven true, in particular, with respect to raw materials and non-processed agricultural products.Footnote 86 As a result, this partially questions the value of GIs for these products. In turn, this raises question about the value of GI protection for developing countries, as many of the GIs registered and protected in these countries are for raw materials and non-processed agricultural products. Moreover, developing countries often lack the infrastructure to enact strict quality control programs, and appropriate marketing of the products. Similarly, foreign enterprises are often deeply involved in the management of GIs in developing countries, which may lead to their business interests prevailing over long-term local (and thus national) development.Footnote 87 This could become problematic for local communities, particularly when foreign businesses push for excessive production and fast-paced growth of the products’ quantities.Footnote 88 More generally, the success of any GI products can become a double-edged sword and lead to inconsiderate exploitation of the land and natural resources without proper management of the GIs and a long-term strategic plan for the growth and development of the products. In turn, this could directly and negatively affect the local environment, and overall the sustainability of the production of the GI products themselves. A telling example in Asia-Pacific is the case of “Phu Quoc,” which was registered as a GI for fish sauces in Vietnam in 2001. After obtaining the GI registration, national (and foreign) producers overproduced without implementing a rigorous system of quality control for the products for several years. This led to unwelcome results for the local environment, and the simultaneous rise of counterfeits.Footnote 89 Only recently, a control body for the Phu Quoc products was established and the body has stepped up in controlling the quality and authenticity of the products.

##### 4Terroir with Less Terroir? The Rise of “Reputation-Based” Geographical Indications, the Loosening Territorial Linkage, and Risks Thereof

This section argues that GI protection becomes more questionable when the products do not entirely originate from the GI regions and GI producers use a partially de-localized production model for their products. Unfortunately, despite the claims of “geographical purity” supported by pro-GI advocates, this partially delocalized model of production for GI products seems today to be more the norm than the exception, with the blessing of international law and most national laws on GIs. Hence, when GIs do not identify fully locally made products, GI protection can easily transform in subsidies and thus confirm the concerns that are often expressed by GI skeptics. In essence, as I argued in my previous scholarship, granting exclusive rights when GIs do not identify fully locally made products risks to transform GIs into a marketing tool rather than signs of the accurate geographical origin of the products at issue.Footnote 90 This, in my opinion, seems to run against the very rationale for protecting GIs in the first place – the linkage between the products and the land, in other words the commonly celebrated unique relationship between the products and the terroir.

Certainly, it should be noted that the relationship between the terroir and the products originating from the land has been partially romanticized. In particular, this relationship was never absolute and overly strict, despite the (often conveniently painted) arguments of GI supporters. This was already the case with respect to the first laws on GIs – or, more precisely, their predecessors “indications” and “appellations” of origin – in the legal landscape. Yet, as mentioned in Section 2, starting with the French laws of the early 1900s, and a few years prior with the Madrid Agreement, it is accurate to say that the broad justification for protecting indications of geographical origin was enshrined in the notion that these indications deserved separate protection from other distinctive signs – primarily trademarks – because of the special relationship between the location from which the products originate and the overall characteristics of the products. In 1958, the definition of “appellations of origin” in the Lisbon Agreement codified this notion in Article 2(1), which reads that “appellations of origin” are the “geographical name[s] of a country, region, or locality, which serve to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.”Footnote 91 Article 2(2) of the Lisbon Agreement further clarified that “[t]he country of origin is the country whose name, or the country in which is situated the region or locality whose name, constitutes the appellation of origin which has given the product its reputation.”Footnote 92

Certainly, despite its strong emphasis on the “geographical environment,” the very language of the Lisbon Agreement already reflected some flexibility in the definition of “appellations of origin.” Notably, Article 2(1) does not impose an “exclusive” connection between the products and the land, but just an “exclusive or essential” connection. Moreover, the definition in Article 2(1) adds “human factors” to “natural factors” with reference to the “exclusive or essential” elements of the products’ quality or characteristics. As supported by prominent scholars, reference to human factors may be seen as evidence to support a system of GI protection focused on localities as the place not only where products are grown but also where the products are made, possible with ingredients and raw materials partially originating from outside the region. Last, but not least, the Lisbon Agreement also refers to the notion of product “reputation,” a concept later found in TRIPS, even though the combined reading of Article 2(1) and 2(2) indicates that the use of the wording “reputation” in Lisbon is a narrow one, meaning primarily that protectable appellations of origin are the names of those geographical locations that have given reputation to a certain product coming from those locations. As explained in the remainder of this section, the concept of “reputation” has later emerged as an (almost) independent justification for protecting GIs today – a tendency that Dev Gangjee explores in this volume based on both a “geography” and “history” approach.

Still, the major loosening of the definition of GIs away from a strict interpretation of the notion of “geographical origin” was the direct result of the adoption of TRIPS in 1994. Notably, Article 22(1) of TRIPS blends the concept of terroir – in its romantic interpretation as absolute relationship between the products and the land – with a much wider concept of “reputation” compared to the concept in the Lisbon Agreement. In particular, Article 22(1) of TRIPS defines GIs as “indications which identify a good as originating in the territory … 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.”Footnote 93 In other words, the provision in TRIPS makes of the linkage between products and the land just an “essential” and no longer an “exclusive or essential” element for GI protection. This loosening of “geographical accuracy” in the TRIPS’ definition of GIs is exacerbated by the fact that TRIPS includes the notion of “reputation” front and center in the definition of GIs, treating “reputation” as an equally significant element for GI protection as the other characteristics and qualities of the GI-denominated products. In other words, following TRIPS, producers in a given region are able to claim exclusive rights on the geographical names of the region with respect to their products even though the products may be manufactured with ingredients entirely originating from outside the region, simply because the name of the region has, historically, been linked with the products and has given to the products their reputation (most likely because the products were first made, or became famous when they were made, in the region).

As I mentioned in the Introduction, it is a known fact that the language of Article 22(1) of TRIPS was heavily influenced by the language of the existing EU Regulations at the time of the TRIPS negotiations, and that the EU strongly supported this language. Notably, Council Regulation (EEC) No. 2081/92 of July 14, 1992, on the protection of GIs and designations of origin for agricultural products and foodstuffsFootnote 94 protected two different types of GIs: “geographical indications” (PGIs), which were defined as “the name[s] of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff” that are “originating in that region, specific place or country” and “which possess a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area”;Footnote 95 and “designations of origin” (PDOs), which were defined as “the name[s] of a region … used to describe an agricultural product or a foodstuff” that are “originating in that region, specific place or country” and “the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area.”Footnote 96 For the latter type of GIs, the PDOs, a stronger link with the territory was required under EU law, but that was not the case for PGIs. Moreover, Regulation No. 20181/92 provided that “certain geographical designations shall be treated as designations of origin where the raw materials of the products concerned come from a geographical area larger than or different from the processing area.Footnote 97 Regulation 2081/92 was later amended and replaced, but today’s Council Regulation (EC) No. 1151/2012 (Agricultural Products and Foodstuff Regulation)Footnote 98 and Council Regulation (EC) No. 479/2008 (Wine Regulation)Footnote 99 repeat almost verbatim the same definitions for PGIs and PDOs. Council Regulation (EC) No. 119/2008 (Spirits Regulation) only refers to “geographical indications” for spirits.Footnote 100 Despite their differences in the requirements to qualify as PGIs or PDOs, both types of GIs enjoy the same level of (enhanced) protection in the EU.

Besides the influence of the EU Regulations on the definition in TRIPS, in May 2015, a provision blending Article 22(1) of TRIPS and the EU definitions was introduced into the Geneva Act of the Lisbon Agreement,Footnote 101 which amends the definition in Article 2(1) of the Lisbon Agreement. In particular, similar to EU law, the Geneva Act definition now includes two types of GIs, namely “geographical denominations” and “geographical indications.” More specifically, Article 2(1) of the Geneva Act defines (i) geographical “denominations” as signs which “designate a good as originating in that geographical area, where the quality or characteristics of the good are due exclusively or essentially to the geographical environment, including natural and human factors, and which has given the good its reputation”;Footnote 102 and (ii) geographical “indications” as signs which “consist of or contain the name of a geographical area, or another indication known as referring to such area, which identifies a good as originating in that geographical area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”Footnote 103 In this respect, Article 2(1)(i) of the Geneva Act merges the language of Article 2(1) and 2(2) of the Lisbon Agreement, adding to the definition of “geographical denomination” (previously “appellations of origin”) the wording “which has given the product its reputation.Footnote 104 Article 2(1)(ii) repeats the TRIPS and EU definition for “geographical indications,” and refers to “reputation” as an element sufficient, per se, for granting exclusive rights on GIs.Footnote 105 Article 2(2) of the Geneva Act then enlarges the scope of the definition even more in Article 2(1) by defining “geographical area” as potentially also “the entire territory of the Contracting Party of Origin [thus a whole country] or a region, locality or place in the Contracting Party of Origin.”Footnote 106 This area can now consist also “of a trans-border geographical area, or a part thereof.”Footnote 107

In summary, the review of the development of the current definition of GIs directly reflects a far less stringent relationship between GI products and the terroir than the one that is often purported in the GI debate. This review shows, in particular, a progressive loosening of this linkage, at least in terms of the dependence of the products from the physical and natural resources of the GI regions. It also shows the rising importance of the human factors, traditionally a partially less relevant element in the GI debate compared to the physical and natural resources, as a qualifying element per se for claiming exclusive rights on geographical names. More problematically, it empowers national authorities to grant GI rights based simply on the reputational link between products and geographical names. Not surprisingly, the loosening of the strictness of this territorial linkage matches changes in international trade, including trade facilitations and a larger access to raw materials from foreign markets at reduced, or no longer existent, tariff barriers. Under the current system, GI producers could have the best of both worlds – claiming exclusive rights on famous locations that grant a competitive advantage to their products against competitors on the one side, and the possibility of accessing cheaper raw materials in foreign markets, if not cheaper human factor, at least in part, for processed GI products, including handcrafts and artisanal goods. Hence, this system no longer accurately identifies the geographical origin of the GI products nor fulfills the functions that are at the core of GI protection: incentivizing local and rural development, and offering accurate information to consumers.

As I mentioned before, the protection of GIs – well-known GIs in particular – certainly offers an important legal alternative in a world in which agricultural subsidies, and other trade subsidies, are increasingly scrutinized as barriers to international trade. In this respect, GIs permit producers to continue to secure some “monopoly rent” against competing products in the international market.Footnote 108 Not surprisingly, the loosening of the definitions of GIs has been supported precisely by those nations and stakeholders representing GI-intensive countries and industries, such as the EU. Yet, this begs the following question: is this “modern” system of GI protection compatible with the historical objectives of this protection? Moreover, under the current system, the blame and shame for any problems related to products not fully originating from GI-denominated regions may be erroneously passed on to other GI producers, including those who entirely produce their products in the GI-denominated area. Ultimately, as I elaborate in the following section, this modern system of protection could be made compatible with the traditional objectives of GI protection, should GI producers clearly disclose the actual geographical origin of the raw materials, product ingredients, and manufacturing steps that do not originate from the GI region. This is of particular importance to, and thus should interest, developing countries in Asia-Pacific and elsewhere, as these countries are strong producers, and exporters, of (mostly agricultural) raw materials and non-processed products, which are, or could be, used by other countries’ producers.

##### 5Full Disclosure Required: The Case for a System of Protection Based on a More Flexible, but Still Accurate, Notion of “Geographical Origin”

Based on the considerations in Section 4, it is not an exaggeration to state that the system of GI protection that is currently being embraced by TRIPS and other relevant international agreements and national legislations directly favors a flexible notation of “geographical origin,” which does not necessarily include the origin of all the ingredients and steps of manufacturing that are used and needed for the production of the GI products. In this respect, criticisms by GI skeptics exposing the inconsistency between this reality and the arguments put forward by GI supporters that GI deserves special protection because of the linkage between the products and the terroir are thus well taken. Still, these criticisms should not let us lose sight of the actual and potential benefits that a system of GI protection which is focused on accurate information, can otherwise bring to both consumers and local development. Moreover, we should not forget that the criticisms expressed against GI protection often derive from supporters of an anti-GI agenda, an agenda that frequently aims to protect the national interests of businesses that use (misusing them in the view of this author) foreign GIs to identify their generic national products – frequently adding to the packaging of these products additional misleading elements, such as flags, national symbols, and color schemes reminiscent of the foreign countries from where the GIs originate and that are famous for their GI products.

Ultimately, as the contributions to this volume illustrate from a variety of different angles, as much as GI protection favors a certain set of interests – those of localities with strong agricultural or artisanal traditions and the businesses in these localities that grow or manufacture products related to these traditions – the lack of appropriate GI protection favors another set of interests – those of businesses producing similar products to be sold under names that are similar to the existing geographical names even though the products do not share any geographical link with those locations. Disputes over terms like Budweiser, Champagne, or Parma between business interests in different countries are illustrious examples of these conflicting interests.Footnote 109 Accordingly, the arguments put forward by GI skeptics should also be carefully vetted as these arguments may also not offer optimal solutions for consumers and (national and/or local) economic development. For example, in some instances, the use of GI names in unrelated contexts in different countries does indeed derive from decades of usage by immigrant communities, or is due to the fact that the GI terms have indeed become generic terms in those countries. In this case, specific exceptions should be, and generally have been, carved out with legal solutions. Hence, these cases are less frequent than GI skeptics tend to purport. In contrast, in several cases, the inappropriate use of GIs by third parties in foreign countries seems to be done with the specific intent to exploit the association generated by these terms with certain (famous) foreign geographical places in order to create a sense of déjà vu and reassurance in consumers, especially in other jurisdictions where these “GI look-alike” products compete with authentic GI products. This is certainly the case with respect to the names of many cheeses available in the market in New World countries today.

In a previous article, in 2014,Footnote 111 I argued in support of the adoption of a narrower and more geographically coherent definition of GIs to resolve the risks of geographical inaccuracy, or inconsistency, which may plague the current system of GI protection. This narrower approach, I argued, could be based on limiting the granting of GI protection only to those products that are actually grown in the GI regions, or effectively originate from these regions with respect to the entirety of the ingredients and manufacturing steps necessary to manufacture the finished products. To reach this result, I suggested that one option could be to delete the wording “reputation” from Article 22(1) of TRIPS, and with it the possibility to grant exclusive rights on GIs just based on the “reputation” of the GI products without any additional link to the actual quality and characteristics of these products. Likewise, I suggested the removal of the word “essentially” from the definition of GIs in Article 22(1), so that GIs would be defined as “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, or other characteristic of the good, is attributable to its geographical origin.”Footnote 112 Alternatively, I suggested the introduction into TRIPS’ definition in Article 22(1) the wording “essentially or exclusively” as in the 1958 version of the Lisbon Agreement.Footnote 113 In my opinion, this language would better reflect a very high level of geographical connection between the products and the GI-denominated areas. Today, in light of the 2015 Geneva Act of the Lisbon Agreement, this proposal should include amending the new definition in the Geneva Act discussed in Section 4, as this definition has been modeled after TRIPS.

However, as I already acknowledged in 2014, amending TRIPS is likely to be an impossible task today, due to the current gridlocking of trade negotiations within the WTO and the collapse of the Doha multilateral agenda.Footnote 114 Moreover, many countries have implemented a definition of GIs similar to TRIPS, thus any amendment of TRIPS should be followed by the amendments of these national laws. This would certainly result in an equally complex, if not again an impossible, task to achieve in practice.

Still, a perhaps less radical but effective proposal for a refocus of the current system of GI protection toward a system based on a stricter territorial linkage and more transparent disclosure of the geographical origin of the products may nonetheless be possible under the current framework. In particular, after further thinking and discussing this issue, I have reached the conclusion that the key for such a solution lies in interpreting the definition of Article 22(1) in light of the provision in Article 22(2) of TRIPS, which forbids any misleading use of a GI and states that “interested parties” are entitled to oppose “(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the goods.”Footnote 115 As noted in Section 2, this provision provides the minimum protection for all GIs against misleading uses. Yet, nothing in the language of the provision seems to indicate that only GI producers can invoke Article 22(2) to oppose the misleading use of GIs by third parties. Instead, the provision clearly applies to all misleading use of a GI. This may include all the cases in which GI producers use a GI to identify products that do not fully originate from the region, should the public believe that the products entirely originate from the region. In other words, this may include the cases in which GI producers turn to ingredients or raw materials, or partially prepare the products with labor from outside the region, and do not disclose these facts to consumers who purchase the products believing that they originate in their entirety from the region.

Thus, based on the assumption that Article 22(2) of TRIPS could be invoked also to prohibit the misleading use of GIs by GI producers, a solution that could potentially address the geographical inaccuracy, or inconsistency, and the (at least partial) lack of transparency of the current system could be the following: GI producers could be required to clearly disclose the actual geographical origin of any raw materials, ingredients, and manufacturing steps of the products that do not originate from the GI region at the point of sale and on the packaging of their products.

In particular, Article 22(2) of TRIPS could be interpreted as providing that, should producers not disclose this information to consumers in a transparent and explicit manner, GI producers may then be held accountable for using GIs “in a manner which misleads the public as to the geographical origin of the goods” and thus denied the right to use the said GIs. To the contrary, when producers disclose the actual origin of any raw materials, ingredients, and manufacturing steps of the products that do not originate from the GI region, they would be seen as complying both with Articles 22(1) and 22(2) of TRIPS, or more precisely their equivalent provisions in the national jurisdictions where the GIs are registered and/or protected. In practice, information about the quality and actual origin of the ingredients and raw materials used for the products may already be listed in the product specification, even though it is unclear if national laws require such disclosure as a requirement for registering GIs.Footnote 116 Moreover, consumers rarely consult product specifications, if they are aware of the existence of these specifications at all. Instead, consumers generally rely on the information that they can find directly on the product packaging and advertising.Footnote 117 Accordingly, by requiring producers to fully disclose the geographical origin of raw materials, ingredients, and manufacturing steps on the packaging on the products and related product advertising consumers would be made aware of the actual origin of all these various components. This not only would allow consumers to make better informed purchasing decisions; it would also incentivize GI producers to select materials, ingredients, and human factors of a quality on par with the reputation of the products, lest consumers may no longer purchase the GI products.

Equally relevant, this obligation could benefit the producers in the localities from which the raw material ingredients originate, or the workers that provide some of the manufacturing steps of the products. Today, these producers and workers disappear in the production chain of the GI products, and their work is not at all recognized even though their role in the final quality, and the overall success of the products, cannot be overstated – simply put, there would not be Swiss chocolate without cocoa beans from cocoa plantations that are certainly not located in Switzerland.Footnote 118 This observation is of particular importance for countries that are primarily producers and exporters of agricultural products, and in particular for developing countries, including developing countries in Asia-Pacific – many of which have registered GIs for agricultural products.Footnote 119 As noted also in a 2013 study, raw materials command a much lower premium price than finished products in general,Footnote 120 and in countries whose GIs are primarily agricultural and raw-materials-based, GI producers do not seem to receive a fair share from the current GI system compared to the producers of fully developed GI products. Instead, processed products, like wine and cheese, tend to enjoy higher premium prices over competing products, even when they are made, in part, with foreign ingredients – again the case of Swiss chocolate is on point.Footnote 121 In this respect, a more transparent system of GI protection requiring full disclosure would both be compatible with the current language of TRIPS and make a stronger case in support of GI protection everywhere.

##### 6 Conclusion

This chapter highlighted how the debate over GI protection remains controversial under multiple fronts. Notably, as the title of this volume summarizes, GIs are today at a crossroads between trade, development, and culture-related interests. In particular, this chapter illustrated how the GI debate, and related controversy, continues to dominate international trade negotiations – at this time no longer (or not only) under the umbrella of the WTO, but primarily as a topic addressed in bilateral and multilateral FTAs. Moreover, attention to GIs is no longer just a “European thing,” even though the EU has largely built its trade negotiations’ agenda over obtaining protection, or enhancing the existing protection, for its GIs. Instead, many countries outside the EU, including in Asia-Pacific, have turned their attention to GIs and implemented national systems of GI protection driven by the beliefs (and hopes) that this could promote local development as well as assist marketing their products in the global market. Hence, this chapter has also highlighted that GIs do not represent, per se, a magic tool for local development. Thus, a wise development strategy should always include strict quality control protocols, long-term plans to maintain product quality, and thoughtful marketing strategies.

While highlighting the economic benefits of GI protection, this chapter also emphasized that GIs should not become pure marketing tools for GI producers. In this respect, it argued that the current definition of GIs has drifted toward a looser linkage between GIs and their historical justification: the territorial linkage between the products and the regions. Notably, GI protection today extends to products that only “essentially” originate from GI-denominated regions, which permit producers to partially (or mostly) outsource the raw materials, ingredients, or manufacturing steps of GI products, and still enjoy exclusive rights on the GI names. This chapter criticized this development as not being in line with the normative justifications for GI protection and possibly a violation of Article 22(2) of TRIPS. Instead, this chapter supported a narrower definition of GIs to reflect a closer linkage with the terroir, with this link implemented in the form of a requirement that GI producers disclose the actual origin of all the raw materials, ingredients, and manufacturing steps of the GI products to consumers at the point of sale, and on the product packaging and advertising. This requirement is compatible, and perhaps even mandated, under a sensible interpretation of Article 22(2) of TRIPS, and would benefit a more transparent system of GI protection, both to the advantage of producers – GI producers and the producers of the foreign materials, ingredients, and labor of GI products – and consumers.

### 2 From Geography to History: Geographical Indications and the Reputational Link

Dev S. Gangjee Footnote *
##### 1 Introduction

For much of its history, the notion of a distinctive link between regional products and their places of origin has been articulated in the language of terroir. This polysemous term acts as a cipher for the influence of geographical origin on the end product’s quality.Footnote 1 As one leading scholar of the concept describes it: ‘Historically, terroir refers to an area or terrain, usually rather small, whose soil and micro-climate impart distinctive qualities to food products. The word is particularly closely associated with the production of wine.’Footnote 2 This type of causal relationship – where the physical geography factors within a region leave their distinctive traces upon the end product – is reflected in the definition of a geographical indication (GI) found in Article 22.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).Footnote 3

According to Article 22.1, a GI is a sign that identifies ‘a good as originating in the territory of a [WTO] 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’ (emphasis added). However, this chapter will focus on the relatively ignored option bracketed between qualities and characteristics – reputation. Ironically, reputation is the least talked about form of linkage between product and place. The analysis which follows considers the question of when a product’s reputation can be said to be essentially attributable to its geographical origin.

This is a question worth investigating because it relates to the very foundation of GI protection. The basis for treating GIs as a distinct intellectual property (IP) regime rests on the notion of a verifiable link between a product and its place of origin.Footnote 4 In the words of the World Intellectual Property Organization (WIPO):

It is important for the justification of the elements of the definition to be made in the most objective manner possible with a view to giving the link a precise and specific form, since this constitutes the basis for the protection of a [GI]. The grant of an exclusive right to a denomination is made only insofar as this right is justified by objective elements and forms of proof. These elements and proof help to make the subject matter for which protection is sought and the reason for such protection understandable, while using, for example, specifications containing these elements in methodological and concrete terms.Footnote 5

The necessity for a causal and objectively verifiable link was also endorsed by the Institut National de l’Origine et de la Qualité (INAO), which has regulated GIs in France since its inception in 1935.Footnote 6 When registering a protected designation of origin (PDO) or protected geographic indication (PGI), a demonstration of the causal interaction between the specificities or characteristics of the area and the characteristics of the product is expected to be provided.Footnote 7

Yet despite the justificatory significance of the link, scholars working in this field have noticed a countervailing trend – a general loosening of the link requirement accompanied by less demanding scrutiny. Driven by the desire to reach strategic multilateral compromises and develop an international consensus in favour of GI protection, proponents of GIs have been relaxing definitional criteria and overlooking enduring ambiguity for decades. In recent work, Irene Calboli has argued for a return to a more rigorous GI definition, which does not stray too far from terroir.Footnote 8 The PGIFootnote 9 is cast as the culprit for the lowering of standards, with its permissive approach to a reputational link and its relatively undemanding requirement that only one stage of the product’s life cycle (its production, or processing, or preparation) take place within the defined region of origin.

In recent work, I have explored the flexibilities and blind spots contained within the European Union’s (EU) GI registration system for agricultural products and foodstuffs, including the limitations of a public certification process when verifying the link between product and place. Within this two-stage process, both the national registrar and the European Commission ultimately work with, and are constrained by, the product specification that is submitted.Footnote 10 A registrar can be provided with a PGI specification that is entirely silent on certain aspects of production, that permits the sourcing of raw materials for a PGI from outside the specified region or that describes the reputation link by merely referring to a few historical sources. Despite this being a unitary EU-wide system operating according to harmonised standards, there is very limited guidance provided by the Commission in terms of the criteria to be satisfied.Footnote 11

Delphine Marie-Vivien is also interested in the apparent attenuation of the link requirement for PGIs, but she explores the potential to accommodate human factors within this less deterministic (in a physical geography sense) form of link. The PGI model has the flexibility to incorporate traditional crafts and textiles within the present EU approach towards GI protection. Therefore, for Marie-Vivien, reputation is the potential vector for admitting such products into the EU’s conceptual framework of GIs.Footnote 12 Crafts, textiles and non-agricultural GIs in general are of interest not just for the EU but for countries in Asia and Africa as well. Thus, reputation as a form of linkage between product and place is presently both a cause for concern – because its loose application undermines the justifications for GI protection – and a potentially flexible option to incorporate non-agricultural products, which demonstrate an appropriate historic connection with a place. Both its peril and potential make this an opportune moment to study the question taken up by this chapter.

Section 2 will identify five reasons why we need to think about the content of the reputation link more closely. While reputation is increasingly being relied upon in GI legislation as well as registration systems, there is a curious absence of criteria that would help to establish this type of link. Section 3 will establish that assistance cannot be found in the drafting history of TRIPS or other contemporaneous legal instruments. It will review the circumstances under which the reputation link was introduced and show that it is normatively hollow. This history suggests that it was incorporated into the draft text of TRIPS as an acceptable compromise, not only between New World opponents and Old World proponents at the General Agreement on Tariffs and Trade (GATT) negotiations leading up to TRIPS, but also as a viable solution for members of the European Community (EC), who were divided over which types of GIs ought to be recognised within Europe. Indeed, reputation was rather hastily incorporated within a framework otherwise premised upon terroir. Therefore, if we are to make meaningful sense of a reputation, which is essentially attributable to origin, then this type of link should be informed by the overall purpose and objectives of sui generis GI protection. The potential components of the reputation link are unpacked in Section 4, which will also relate these criteria back to the foundations for GI protection. Section 5 concludes.

##### 2Why We Need to Talk about Reputation

There are at least five compelling reasons why we should think more carefully about reputation as the basis for the link between product and place. First, the GI definition in Article 22.1 of TRIPS is by now well established as the international reference point. This is evident in national or multilateral definitions that map on to Article 22.1.Footnote 13 Reputation is therefore an independent and sufficient basis for satisfying the definition of a GI. However, it is a form of linkage that will inevitably be subjected to testing. The ongoing TRIPS negotiations regarding the establishment of a multilateral register for wine and spirit GIs have witnessed deliberations on whether registration notifications should include ‘details of the quality, reputation or other characteristics of the wine or spirit essentially attributable to its geographical origin’.Footnote 14 The requirement for such details at the time of international registration is also reflected in the ‘work-in-progress’ composite text of the multilateral register.Footnote 15 A notification could include a declaration of conformity with the definition of a GI in Article 22.1 of TRIPS. Not satisfying Article 22.1 could potentially be a basis for refusing protection within the territory of a participating member.Footnote 16 Yet, the reputation link in Article 22.1 remains poorly understood.

Second, the TRIPS definition of GIs has recently been accommodated within Article 2(1)(ii) of the Geneva Act of the Lisbon Agreement 2015.Footnote 17 The Lisbon system has established an international registration system for qualifying geographical designations, which are recognised at the national level. Scrutinising international registrations for compliance with the definition of a GI is once again a concern here, but a more immediate one. Where the ‘reputation … of the good is essentially attributable to its geographical origin’, it will now qualify for international registration. The Geneva Act provides for both the initial refusal of the effects of international registration by a Contracting Party (Article 15) and the possibility of subsequent invalidation (Article 19). Both refusal and invalidation proceedings require the grounds to be stated.Footnote 18 During the deliberations leading up to the adoption of the Geneva Act, ‘grounds based on failure to meet the definition of an appellation of origin or a geographical indication’ were specifically envisioned as a reason for invalidation.Footnote 19 Similarly, a refusal to recognise a GI can be based on any ground, including failure to satisfy the definitional provisions.Footnote 20 Thus, a more developed sense of when a reputation is ‘essentially attributable’ to the product’s geographical origin is a necessary prelude to any such challenges.

If the first two reasons relate to multilateral obligations and international norms, the next three draw upon developments within the EU context, but the insights are more broadly applicable. The third reason is conveyed most conveniently by statistics. As of 29 February 2016, the Database of Origin and Registration (DOOR) indicated that PGI registrations were maintaining their lead over PDO registrations in the EUFootnote 21 – there were 671 registered PGIs and 604 registered PDOs.Footnote 22 One principal difference between the two types of GI is that for a PGI to be registered a product’s ‘given quality, reputation or other characteristic is essentially attributable to its geographical origin’, whereas for a PDO, the product’s ‘quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors’.Footnote 23 It is evident that the reputational basis for registration, with its attendant flexibility, is proving to be popular.

Fourth, recent pronouncements from the Court of Justice of the European Union (CJEU)Footnote 24 have confirmed that the EU’s harmonised regime for GI protection, set out in Regulation 1151/2012 and its predecessors, is exhaustive and pre-empts national GI registration systems to the extent that they regulate the same subject matter.Footnote 25 Therefore, where a regional product’s reputation is causally attributable to its geographical origin, it can no longer be protected by national protection systems, such as passing off or unfair competition law, which have historically protected GIs.Footnote 26 As a recent dispute concerning Greek Yoghurt highlights, such a geographical designation has to be registered at the EU level, failing which it is apparently left vulnerable, without any legal protection at the national level.Footnote 27 The objective is to channel all suitably qualified subject matter into the unitary EU regime in order to achieve complete harmonisation. However, the CJEU case law suggests that simple geographical designations can continue to be protected at the national level, for instance, under unfair competition law. The court has recently summarised the position as follows:

[It] is apparent from the case-law that whilst the aim of Regulation No 2081/92 [which previously regulated GIs for agricultural products and foodstuffs] is to provide a uniform and exhaustive system of protection … that exclusivity does not preclude, however, the application of rules governing the protection of geographical designations which fall outside its scope … It is apparent [both from the preamble to the Regulation and the PGI definition] that the rules on protection laid down by that provision cover only designations relating to products for which there is a specific link between their characteristics and their geographical origin.Footnote 28

Consequently, it seems that the CJEU endorses a distinction between a PGI-type reputation that is objectively or causally attributable to origin and a non-PGI type reputation, where a product may be subjectively or ‘romantically’ connected to its region of origin in the eyes of consumers but for which there is no objective basis. The latter may still be protected under national unfair competition law, provided it does not unjustifiably impede the free movement of goods within the internal market. In the United Kingdom (UK), this distinction was at issue in Greek Yoghurt, where subjective reputation was described in the following manner:

It is impossible to do much more than speculate as to why that substantial proportion of the relevant public think that [thick and creamy] Greek yoghurt is special. Some may … make a romantic association between Greek yoghurt and a Greek holiday. Some may think that Greeks use manufacturing methods that give it its special thick and creamy texture. Few would probably know how or why.Footnote 29

Ultimately, what mattered for the requirements of the tort of passing off was that a subjectively held and commercially valuable reputation contingent upon Greek origin existed which could be protected against misrepresentation. We therefore need clearly identified and workable criteria in order to distinguish between these two types of reputation associated with geographical origin, because only subjective reputation will continue to be protected at the national level within the EU.

The fifth reason for seeking greater clarity is that the European Commission is proposing to extend the EU’s GI regime to non-agricultural products and handicrafts. Its interest was signalled in a Green Paper in 2014,Footnote 30 which drew upon a prior study exploring the potential to register crafts and textile products from across the EU.Footnote 31 The Commission’s proposal recognises that non-agricultural products may also possess a link to a region, which can either be a terroir or reputation-based link:

This link to a geographical location can also apply to non-agricultural products. In some cases, such as marble and stone, the strength of the link is comparable to that for agricultural products … In principle, the stronger the link, the more credible and authentic a product will be in the eyes of the consumer. However, certain GIs may be based entirely on human rather than natural inputs, or on reputation.Footnote 32

Reputation attributable to geographical origin could be used as a criterion in addition to, or as an alternative to, a particular quality or inherent characteristic of the product. This would allow GI protection to be extended only to products that have already developed a recognised reputation among consumers.Footnote 33

If reputation is to be put to work in this context, then we need to better understand how it can be anchored in or ‘essentially attributable’ to the place of origin.

##### 3Reputation: A Compromise or Compromised?

Historical research confirms that we are unlikely to find the answers we seek within the text or travaux of TRIPS. This section documents (a) how reputation was included within the TRIPS definition as a compromise; and (b) how it was an incompletely conceived compromise, because reputation was hastily amalgamated within a paradigm otherwise dominated by a terroir-based approach to GI protection. This compromise unfolded in two broad stages. To fully account for the presence of the reputation link in TRIPS, we have to first acknowledge a prior reconciliation within Europe as part of the historical backdrop to the EU’s own harmonised GI regime for agricultural products and foodstuffs.

###### 3.1Two Paradigms of Geographical Indication Protection

Wine is the archetypal GI product. Since the latter part of the nineteenth century, successive legislative experiments directed at regulating wine appellations in France showcase the extent to which terroir-thinking gradually characterised the nature of the link between product and place.Footnote 34 The transition from the appellation d’origine (AO) to the appellation d’origine contrôlée (AOC) reveals that a naturally deterministic understanding of terroir, which was reliant on physical geography factors such as soil, sunlight, orientation and elevation, gave way to a more holistic understanding which also included production techniques and human influences.Footnote 35 The terroir approach was adopted by Southern European countries with a wine-growing tradition, including Italy, Spain and Portugal. Within this paradigm, reputation was an additional factor to be considered cumulatively, after an objectively verifiable causal connection was established between a product’s qualities and its region of origin.

The paradigm is perhaps best exemplified by Article 2 of the Lisbon Agreement of 1958.Footnote 36 Article 2(1) requires that the ‘quality or characteristics of [the product] are due exclusively or essentially to the geographical environment’, while Article 2(2) additionally stipulates that when identifying the country of origin we have to look for the country containing the place ‘which has given the product its reputation’. This is made explicit in Lisbon’s Geneva Act of 2015, where Article 2(1)(i) defines an appellation of origin as ‘any denomination … consisting of or containing the name of a geographical area, or another denomination known as referring to such area, which serves to designate a good as originating in that geographical area, where the quality or characteristics of the good are due exclusively or essentially to the geographical environment, including natural and human factors, and which has given the good its reputation’ (emphasis added).

By contrast, in other European jurisdictions, GIs were protected under unfair competition law.Footnote 37 Historically, unfair competition has been used in different senses. It is variously an umbrella term for a cluster of tortious actions (or their equivalents in delict), an individual tort by itself or the basis for a specific statutory regime. What unites the different approaches is their emphasis on misconduct. All of these iterations seek to regulate the activities of traders in the marketplace and enable courts to cry foul when business practices overstep their limits. For example, while it may be permissible for a trader to claim her goods are better than those of a rival, or even to claim that those of her rival are objectively inferior, it will not be permissible to lie to customers about the source or quality of her goods, or unjustifiably disparage the products of her rival.Footnote 38 Consequently, WIPO identifies ‘at least one objective that is common to all different approaches, and that is to provide those in trade with an effective remedy against unlawful and dishonest business practices of their competitors’.Footnote 39 Germany and the UK are two prominent jurisdictions that favoured such an approach to GI protection.Footnote 40

As opposed to the information being specified ex ante, in a cahier des charges or product specification required by registration-based systems under the terroir paradigm, the unfair competition approach adopted a different methodology for identifying a regional product, determining its region of production and legally recognizing those entitled to use the geographical name on their products. These answers would only crystallise within the context of an individual dispute, on a case-by-case basis. Furthermore, recognition and protection were dependent upon the communicative content of the sign. The designation would inevitably be protected against deceptive uses or misrepresentations and, depending on the national regime in question, potentially against misappropriating or free-riding uses as well. Protection in turn was contingent upon consumer perception. From the consumers’ perspective (and that of the trade), did a geographical designation used on certain products have a reputation in the market? Would the relevant public expect the product to come from a specific region? Would they expect it to be made in accordance with certain techniques and processes (for example, a minimum ageing requirement for whisky) even if they were unclear on the precise details? If so, consumer expectations would be protected together with the reputation of the product.

It is crucial to point out that within the unfair competition paradigm the paramount consideration is whether a valuable reputation exists in the marketplace for a regional product. Its existence could be established through direct and indirect evidence such as sales figures, mentions in the media or consumer surveys. That reputation did not have to be essentially or causally attributable to geographical origin in the manner that the terroir approach requires.Footnote 41 Reputed geographical designations were treated in the same way as trade names or unregistered (trade) marks, which also had reputations worth protecting. Given this detachment from any terroir, i.e. causal connection requirement, an unfair competition approach to GIs can range beyond agricultural products to accommodate reputed manufactured as well as artisanal products, such as Solingen steel, Brussels lace and Swiss clocks. It can also scale up to protect national-level reputations for products such as Jamaican rum, which would otherwise be impermissible under a terroir approach where homogenous geographical features need to be identifiable within a region.

###### 3.2Accommodating Reputation within a Terroir Paradigm: The EU Compromise

The extent to which the terroir and unfair competition approaches to GI protection were equally legitimate was directly tested before the CJEU in the decades preceding the adoption of a harmonised EU-wide system of protection. Throughout the 1970s and 1980s, only the former was recognised as a legitimate category. During this period, the case law was characterised by suspicion towards national labelling regimes that protected simple or quality-neutral GIs of source, which could potentially have operated as disguised restrictions on the free movement of goods within the common market.Footnote 42 The French AO concept, with its purportedly objective link between origin and quality, provided an acceptable basis for prohibiting the use of appellations by those outside the designated regions. It would take several years before the Court acknowledged the protection of a valuable reputation, alongside the prevention of unfair competition, as an alternative basis for restricting the use of geographical designations. Two prominent decisions of the CJEU bracket this transition.

In the Sekt/Weinbrand decision,Footnote 43 the validity of German legislation, which restricted the use of certain wine designations, was challenged. It reserved the designations ‘Sekt’ and ‘Weinbrand’ to domestic products and the appellation ‘Praedikatssekt’ to wines produced in Germany from a fixed minimum proportion of German grapes. The German law further prescribed that imported sparkling wine and wine brandy not in compliance with these conditions had to use different terminology (‘Schaumwein’ and ‘Branntwein aus Wein’).Footnote 44 The European Commission queried the German legislation’s compatibility with the former Article 28 (now Article 34 of the Treaty on the Functioning of the European Union (TFEU)) on the basis that by claiming generic terms as indirect geographical designations, it favoured domestic production and operated as a measure equivalent to a quantitative restriction on imports. Germany responded that while it might be a restriction, it was justified on the basis of protecting consumers and legitimate producers against unfair competition. Therefore, it was a permissible exception to Article 28 contained in Article 30 (now Article 36 TFEU). In dismissing the German argument, the CJEU made the following observation:

These [wine] appellations only fulfil their specific purpose [i.e. to safeguard producers against unfair competition and prevent consumers being misled] if the product which they describe does in fact possess qualities and characteristics which are due to the fact that it originated in a specific geographical area.

As regards indications of origin in particular, the geographical area of origin of a product must confer on it a specific quality and specific characteristics of such a nature as to distinguish it from all other products (emphasis added).Footnote 45

Since this qualitative link was not invoked, restrictions on these terms were found to be unjustified. It should be noted that the outcome of the decision was not considered objectionable. Such expressions were arguably generic at the time, so in trying to artificially impose a specific geographical limitation, the contested legislation was vulnerable on this ground alone. However, the reasoning that was applied proved divisive.

The controversy stemmed from the implication that reputation-based geographical designations did not fall within the limited exceptions to the free movement of goods principle. As the AO appeared to be the only legitimate category of GI worthy of being exempted from a free movements challenge, the decision provoked forceful critiques.Footnote 46 A measure of their potency is the outcome in the CJEU’s subsequent Exportur decision.Footnote 47 Here, the issue was whether the Spanish geographical designations ‘Touron Alicante’ and ‘Touron Jijona’ could be used on nougat confectionery produced in France. These were protected designations under a Franco-Spanish Treaty,Footnote 48 notwithstanding the absence of an objective or terroir-based link. The Court held that despite this, such designations ‘may nevertheless enjoy a high reputation amongst consumers and constitute for producers established in the places to which they refer an essential means of attracting custom. They are therefore entitled to protection.’Footnote 49 Celebrating this vindication of the reputational basis for GI protection, Professor Beier argued that any harmonised EU regime which represented the AO ideal alone would have been a ‘monstrosity’.Footnote 50

With this eventual judicial recognition of both the terroir and reputation approaches, there is ample evidence that the EU’s harmonised regime for agricultural products and foodstuffs, introduced by Regulation 2081/92,Footnote 51 institutionalised this compromise. It fused these two distinct approaches together within a common framework premised upon registration-based legal recognition. The Regulation begins with the concession that ‘existing practices make it appropriate to define two different types of geographical description, namely protected geographical indications and protected designations of origin’.Footnote 52 The solution was therefore to create two ‘doorways’ into the GI registration system in Article 2. PDOs could be applied to products of which ‘the quality or characteristics … are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors’ (emphasis added). In contrast, PGIs envisioned a looser form of link and were available for products ‘which [possess] a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area’ (emphasis added). However, both types of GIs would be granted equal protection. This ‘two doorways’ compromise has been maintained in the successors to Regulation 2081/92, namely Regulation 510/2006 and Regulation 1151/2012.Footnote 53

The existence of two different types of GIs attests to the underlying fissures and factionalism in the lead up to the original Regulation. Writing at the time of its enactment, one commentator noted that on ‘14 July 1992, contrary to common belief and indeed much to general amazement, the EC Regulations on the “protection of designations of geographical origin” … were passed by the European Council despite the number of disputed issues which remained unresolved until the last moment’.Footnote 54 The initial French memorandum submitted in 1988 was restricted to designations of origin, along the lines of the AO, which was subsequently supported by Italy and Spain.Footnote 55 However, the draft text of the Commission’s proposed Regulation contained references to both PGIs and PDOs.Footnote 56 The influence of the AO model remains visible in the Opinion of the Economic and Social Committee, which reveals glimpses of terroir-thinking at crucial junctures. Thus, while acknowledging the importance of protecting a product’s reputation, the Committee noted that the ‘special characteristics of the food involved derive from their origin, soil conditions, geographical and climatic environment, the varieties and species used, and the way they are prepared or produced. It is these factors which give the product its name and reputation in the marketplace.’Footnote 57

During this phase, the drafting process involved negotiations between two competing Northern and Southern groups. Marina Kolia observed that when the proposals reached the European Parliament in September of 1991, GI protection was again restricted to PDOs and ‘the applicants were required to produce convincing evidence that the product’s characteristics were essentially due to the geographical origin’.Footnote 58 The European Parliament did not accept the proposal in this form and the draft Regulation returned to the Commission, where it was further debated. At this stage, Germany began ‘to promote the idea of a very broad category under which all geographical names would be mutually recognised’.Footnote 59 When faced with the option of a single broad definition, which would have diluted the cachet of the AO concept, negotiators revived the PGI as an alternative option. Eventually, an acceptable compromise was arrived at in the form of two distinct pathways into registration and the crisis was averted.

###### 3.3The EU Compromise as the Multilateral Template
There is a convincing documentary trail which reveals that the internal compromise between the German (unfair competition prevention by emphasising reputation) and French (terroir logic premised on a qualitative link) approaches went on to inform the EC’s position in multilateral negotiations. The EC’s recognition of a reputation-based link was visible in its proposal during – the ultimately unsuccessful – WIPO negotiations for the revision of the Paris ConventionFootnote 60 in 1990. The issue under discussion was whether there was an alternative to the existing categories of a simple, quality-neutral indication of source (IS) (e.g., Made in China) and the more demanding AO (e.g., Bordeaux).

[The EC Representative suggested that] in order for a geographical indication to be ‘protectable’, some kind of link must exist between the geographical area to which the indication refers and the goods which originate from that area. [The EC further suggested that] protectable geographical indications should be those which ‘designate a product as originating from a country, region, or locality where a given quality, reputation or other characteristic of the product is attributable to its geographical origin, including natural and human factors’. It was explained that this ‘quality link’ was broader than the restrictive definition of ‘appellation of origin’ under the Lisbon Agreement … [According to the EC proposal] the link need not consist of a given quality but may consist of a given ‘reputation or other characteristic’ and such characteristic need not be ‘exclusively or essentially’ attributable to its geographical origin.Footnote 61

Two important ingredients of the TRIPS definition – the stand-alone reputation option to establish the link and the relative loosening of this link – were introduced at this stage.Footnote 62 The EC was also very clearly drafting its own harmonised GI regime in accordance with its position during the Uruguay Round negotiations. The Commission’s draft for Regulation 2081 specifically notes:

[The draft Regulation] also broadly reflects the position which the Community has defended in the international negotiations on intellectual property in GATT.

In the Uruguay Round negotiating group on intellectual property, the Community proposed a definition of, and appropriate protection for, geographical indications, including designations of origin, which the Commission has taken into account.Footnote 63

During the Uruguay Round negotiations, it is widely acknowledged that the EC was the driving force behind the TRIPS GI provisions.Footnote 64 As for the drafting of Article 22.1, a helpful resource was the Secretariat’s synoptic table of proposals accumulated by early 1990.Footnote 65 The EC’s proposed definition closely resembled the final TRIPS version with its reputation link option, save for the addition of ‘geographical origin, including natural and human factors’. The core of this definition remained stable until the final TRIPS text was adopted, presumably because it was acceptable to those countries which protected GIs either under unfair competition or trademark law.Footnote 66 Countries that were opposed to sui generis GI protection, including the US and Australia, found the relatively broad definition with its acknowledgement of reputation acceptable. This definition established common ground by including certification and collective marks within the GI definition. After all, these were established categories of marks and potential vectors for the protection of a collectively sustained reputation.

Therefore, while the TRIPS definition was ultimately acceptable as a bridge to span the – primarily trans-Atlantic – divide over GIs, the origins of this European proposal can be traced to an internecine dispute between European neighbours. However, the compromise superficially glosses over a fundamental distinction: the unfair competition or trademark approach was amenable to protecting a regional product’s reputation without any necessity for a causal link requirement. The very existence and commercial value of the reputation was a sufficient basis for protection. This proves to be an awkward fit within a GI definition, which originated in a terroir paradigm and saw reputation, as an additional factor, dependent upon the existence of a causal connection between a product’s desirable qualities or characteristics and its geographical origin.

Once this history is retrieved, there are clear traces that the two paradigms of terroir and unfair competition have been inelegantly fused together within TRIPS. Clashing styles of conceptual architecture remain obvious. For a start, there is the central puzzle of having to prove that a product’s commercially valuable reputation is also essentially attributable to geographical origin in a causally verifiable manner. Section 4 considers how we might best make sense of this. Furthermore, how are we to define the boundaries of the region of origin for a product which has a reputation-based link? A study by WIPO observed that the standard criterion for delimiting a region of origin includes natural features (rivers, contour lines); geographical characteristics (soil drainage, climate, elevation); human influences (choice of plant variety, method of production); historical associations; and economic considerations (equivalence of yield).Footnote 67 Several of these criteria are more relevant for a terroir link and will be inapplicable for reputation-based products.

Moreover, TRIPS suggests that the name of an entire country could qualify as a GI. While this is acceptable under a reputation-based approach, it is unlikely under a terroir one, which requires a geographical region to be both relatively homogenous and distinctive in order to influence the product.Footnote 68 Finally, while TRIPS applies to goods, it does not prohibit GIs being recognised for services. Switzerland, Estonia, Uruguay, Peru, Korea and Morocco are some countries that recognise GIs for services in the hospitality, banking, financial, or health and traditional healing sectors.Footnote 69 While a well-regarded local service may give rise to a valuable reputation – perhaps solely based on human factors with their attendant mobility – and qualify for protection under the unfair competition paradigm, how is this essentially attributable to geographical origin? These are just some of the unresolved questions that have arisen from the fusion of two previously distinct paradigms.

##### 4From Geography to History: An ‘Essentially Attributable’ Reputation
Now for the difficult question: what kind of reputation ought to be ‘essentially attributable’ to geographical origin? Without clear guidance, there is a very real risk that the established unfair competition or trademark approach to measuring reputation will be inappropriately transplanted into the sui generis GI context. For these regimes, establishing a sign’s reputation is relevant primarily in two situations:
1. (a) Does the trademark applicant’s or unfair competition claimant’s sign qualify for protection? Here, a sign may initially be a descriptive or otherwise unsuitable term (e.g., STAPLES for office supplies),Footnote 70 but over time and through marketing efforts, the relevant public can be taught that the sign indicates a specific commercial source. The success of this process of education is measured via the doctrines of acquired distinctiveness or secondary meaning.Footnote 71

2. (b) What is the scope of protection available? Reputed or famous trademarks are granted a broader penumbra of protection both under the likelihood of confusion test (which prevents use of the trademark on dissimilar goods or services, or even in the absence of registration) and via causes of action collectively referred to as ‘dilution’ which all rely on a non-confusing but otherwise wrongful association being made between the claimant and defendant’s signs.Footnote 72

These approaches seek to determine (a) what percentage of the relevant public are familiar with the sign; and (b) for certain types of claims such as tarnishment, what do the public think about the sign to begin with? Therefore, reputation has a quantitative as well as a qualitative dimension, but it is concerned with contemporary consumer perception. This is reflected in the direct, as well as circumstantial, categories of evidence that are admissible to establish its existence. Therefore, in both the EU and the US, courts will consider factors such as the market share of the product sold under the sign; the intensity, geographical extent and duration of use; the investment in advertising and promotion; the extent of consumer recognition via survey evidence; trade recognition; and unprompted media coverage.Footnote 73 However, the trademark and unfair competition approaches focus on whether the reputation exists at the relevant time and not how it came about, let alone why it arose in a particular place.

So when is a reputation ‘essentially attributable’ to its geographical origin? The answer to this is a work in progress, but presently cumulative evidence relating to three aspects is required:Footnote 74
1. (a) contemporary reputation;

2. (b) historic reputation; and

3. (c) the history of the product, including the specific production techniques which gave rise to the distinctive product within that region.

The three aspects are interrelated and overlap with each other. Therefore, contemporary reputation can be gauged by resorting to familiar categories of evidence (consumer surveys, sales figures, trade opinion, etc.) that are similar to the trademark or unfair competition approach. However, there is an important difference. The purpose here seems to be to measure continuity, or ongoing vitality, as opposed to the extent of the product’s fame or renown. Thus, it should be proved that the designation continues to function as a GI for consumers in at least the country of origin. In turn, continuity suggests that the present reputation rests on the product’s historic reputation. One of the central tasks here is to identify the characteristic features which set this product apart – characteristics which have made it distinctive when compared with similar cheeses or textiles or crafts. These characteristic features have sustained the product’s historic reputation over time. The purpose of the historical analysis is therefore to establish a basis for the product’s reputation – which is attributable to its distinctive features. Finally, regarding the product’s history, the aim is to identify a causal connection between the product’s distinctive or characteristic features, which have sustained the historic as well as contemporary reputation, and the natural and/or human factors within the geographical region of origin.

For reputation-based GIs, this often involves the identification of specific production techniques (human factors) and an explanation for why they historically developed within that region, in response to environmental, socio-economic or cultural conditions specific to a place. The reputation link can be restated as follows: (a) contemporary reputation builds upon (b) historic reputation, which accreted over time around the specific or distinctive features of the product, and (c) these features of the product in turn were causally attributable to natural/human factors specific – but not necessarily unique – to the region of origin.

This is the ‘turn to history’ alluded to in this chapter’s title. The historical evidence required by stages (b) and (c) is directed towards identifying the ‘first uses of the name, accompanied as far as possible by the first descriptions of the product’.Footnote 75 The historical evidence should link the name of the product to a specific geographical region through the context surrounding the uses of the name. It should also identify the distinctive features of the product, which give the product a stable core of identity over time, and this provides the foundation for developing a reputation. Bérard and Marchenay identify some of the sources that can substantiate this.Footnote 76 While documentary sources are helpful, a local product may have only been known in the region of origin or have been produced primarily for domestic consumption, thereby leaving few textual traces. Oral history can therefore fill in the gaps or even provide much of the basic data.

The oral history of a product can be compiled through multiple interviews across the product’s supply chain and with members of the local community. In terms of documentary sources, of

particular interest are various works by an increasing number of learned societies [in the 19th and 20th centuries] that relied on the testimony of local experts. Other sources of information range from administrative and technical reports to agricultural journals, treaties and statistics. Food and gastronomic history can also help to shed light on these products … [Sources] range from administrative documents (surveys, censuses, statistics, decrees, legal cases, regional commodity prices), travel logs and food guides to directories of regional specialities and motoring and touring guides [as well as] local archives.Footnote 77

These sources should be cross-referenced with local-level economic data relating to production where possible. There is of course a difference between a rigorous historical approach, which adopts valid historiographical and methodological techniques, and an instrumental account, which selectively dips into historical materials to tell a partial story or which embraces mythological origins.Footnote 78

This approach to ‘essentially attributable’ reputation is evident for PGIs in the EU, as some recent registrations have illustrated. Take the example of the ‘Polvorones de Estepa’, a soft and crumbly Spanish Christmas confection (shortbread) made from flour, sugar, milk and nuts from the city of Estepa in Andalucia.Footnote 79 Its product specification states that the ‘link between “Polvorones de Estepa” and the geographical area is based on the product’s reputation. That reputation is over a century old. In that time, the confections have been made to the same recipe.’Footnote 80 Historical materials are used to establish that (i) an identifiable or stable product recipe has existed for some time; (ii) the product has enjoyed a reputation for some centuries; and (iii) confectioners were employed in that region to meet the demand from Seville and Madrid (making this a socio-economic origin story).Footnote 81 Documentary sources draw on the archives of a convent, which includes old recipes; the contributions of an individual confectioner (e.g. a method of baking and a process of refining and toasting the flour) who provided what would become the modern template; evidence of product sales dating back to 1959; and more recent (1980s and 1990s) references from the press, especially around the time of Christmas, as well as the product’s inclusion within inventories of traditional foods.Footnote 82

Another product that illustrates the historical approach to reputation is ‘Carnikavas nēģi’ for fresh or cooked Latvian river lampreys.Footnote 83 The specification states that the ‘link between the product and the geographical area is based on the reputation of “Carnikavas nēģi” and the skills of the local fishermen and fish processors who preserve ancient traditions and methods’. Since fishing was a major source of income for the region, special techniques were developed to discover optimum fishing spots based on knowledge of the habits of the fish, influence of weather conditions and the need to adapt to the river changing its course. Ensuring that fishing practices favour sustainable fish stocks is also recorded in the specification. The specification very clearly claims that the product’s reputation, which can be traced back to the seventeenth century, is attributed to the human skills – relating to both fishing and processing – which have been passed down through the generations: ‘The taste characteristics of “Carnikavas nēģi” are connected with the skills of the residents of Carnikava in catching and preparing them; these skills have been preserved since the 17th century and are based on manual work and experience.’Footnote 84

Therefore, this more overtly historical approach to the product emphasises the human contribution. Bérard and Marchenay underscore this by saying that

historical rooting entails an identification of the skills and practices that have been developed and transmitted by successive generations. Historical depth must be linked to the collective know-how that has been passed down to the present generation, while bearing in mind that the transmission of know-how does not rule out evolution. Otherwise, history threatens to serve as a means of justifying would-be heritage products on the basis of a place’s reputation – not on the specific qualities of the product concerned.Footnote 85

Bringing human skills into the frame – via the link requirement, where the natural and human factors in a region have a causal influence on the distinctive features of the product – implies that we should be concerned with ‘living history’. Mere long-standing production in a region is not sufficient; it is the human skills and techniques which give the product its distinctive features over time, and there is often a place-based explanation for how and why these skills and techniques arose and have adapted. Consequently, the human contribution has a normative dimension. Such products deserve protection because of the collective, inter-generational transmission of savoir faire, or potentially because local products help to actively make the place itself.Footnote 86

##### 5 Conclusion

For a legal regime initially founded upon a causation narrative drawn from physical geography, the turn to history is admittedly difficult but also contains intriguing possibilities. The purpose of this chapter was to set out a more GI-specific approach to reputation, by asking when it ought to be essentially attributable to the place of origin. This historical turn is worth engaging with because in the absence of a more appropriate reputational link between product and place, sui generis GI protection becomes unjustifiable. If contemporary commercial reputation becomes the benchmark, the boundary with trademark or unfair competition law breaks down and the justification for GIs, as a separate regime based on the causal connection between product and place, collapses.

Two concluding case studies illustrate the danger of adopting a simplified notion of reputation. In 2006, JAM NAGARFootnote 87 was applied for as a GI for petrol, fuel, liquefied petroleum gas and diesel-related goods before the Indian GI registry. The applicant, Reliance, had established what it claims is the world’s largest fuel refinery complex at Jamnagar in Gujarat, in western India.Footnote 88 The refinery complex had won awards and the applicant alluded to the superior (technological) quality of its refinery processes, which it claimed had earned the refinery complex a positive contemporary reputation. However, nowhere did it explain why a sign designating a relatively new and highly industrial complex could satisfy the ‘essentially attributable’ requirement on the basis of quality, characteristics or reputation. This seems to be a clear case of contemporary commercial reputation being a sufficient basis for GI registration.

### 3 The Limited Promise of Geographical Indications for Farmers in Developing Countries

Justin Hughes Footnote *
##### 1 Introduction

Among the various fields of intellectual property, geographical indications (GIs) law is arguably the smallest in terms of economic importance and the most complex in terms of principles and justification. To get a sense of the relative importance of GIs, in 2012–2013, India had over 43,000 patent applications, over 8,000 design registration applications, over 194,000 applications for trademark registration, but only 24 applications for protection of GIs.Footnote 1

While GI law is rooted in the idea of terroir (a concept we consider below), discussions about GI protection can bring in strands of trademark law, unfair competition, agriculture policies, rural development, environmental protection, and – more distantly – protection of traditional cultural expression and traditional knowledge. These connections can easily lead to simplistic and sometimes false narratives about the potential benefits from different sorts of legal protection of GIs. This chapter describes some of the forces benefiting and burdening effective GI labeling with today’s consumers.

Because those consumers do show an interest in geographic origins, despite the occasional hype, GIs can be – in many circumstances – a useful tool in raising rural incomes in developing countries. Because GI-based marketing can help developing farmers, properly calibrated legal protection of GIs should be part of a “development agenda” for jurisdictions with significant rural economies. In that spirit, this chapter lays out some of the factors determining whether and how GI marketing (and GI legal protection) can help any particular rural region. With those issues in mind, we will consider a few specific examples.

##### 2Geographical Indications and Terroir

“Geographical indications” is an umbrella term for the various legal mechanisms used to protect geographical designators that tell consumers both the geographic origin of a product and something about the product’s quality and characteristics. The legal standards of protection vary as does the moniker used to designate the protected name (“appellations of origin,” “protected geographical indication,” “protected designation of origin,” “collective mark,”Footnote 2 etc.). Whatever the name used, true appellation laws – and now geographical indications laws – have been traditionally justified by the idea of terroir: that a particular land is a key input for a particular product. The terroir idea is that the product’s qualities “come with the territory” and that there is, as I have described elsewhere, an “essential land/product qualities nexus.”Footnote 3

For example, the French government’s Institut national de l’origine et de la qualité (formerly the Institut national des appellations d’origine) explains an appellation d’origine contrôlée (AOC) this way:

[It] guarantees a close link between the product and the terroir, which is a clearly defined geographical area with its own geological, agronomical, climatic, etc. characteristics, as well as particular disciplines self-imposed by the people in order to get the best out of the land. This notion of terroir encapsulates both natural and human factors, and means that the resulting product may not be reproduced outside its territory.Footnote 4

In the context of wine (but in concepts that apply broadly), terroir can be understood as “the environmental conditions, especially soil and climate, in which grapes are grown and that give a wine its unique flavor and aroma.”Footnote 5 As one Australian wine critic has written: “terroir … translates roughly as ‘the vine’s environment[,]’ but has connotations that extend right into the glass: in other words, if a wine tastes of somewhere, if the flavours distinctly make you think of a particular place on the surface of this globe, then that wine is expressing its terroir.”Footnote 6

The terroir theory in this classic form has always been somewhat “cultural” and largely ignored in many quarters of the agricultural sciences. In his seminal 1947 The Soil and Health, Sir Albert Howard – one of the fathers of modern organic farming – does not mention any such concepts.Footnote 7 In 302 pages detailing how to produce better crops of coffee, tea, cotton, cocoa, wheat, tomatoes, and various fruit, Howard’s concern is the general quality of soil and maintaining soil fertility through natural means, but he never takes up the question of whether enduring variations in soils and climate would produce enduring variations in foodstuffs.Footnote 8 It simply wasn’t an issue for the science-minded but contrarian Howard.

More and more, we understand that the most factually sound “terroir” is microclimatic, i.e., that each field (or small cultivated block) is its own terroir based on particular soil composition, relationship to sunshine, wind, rainfall, and drainage. In other words, single appellations are rarely consistent in key geology, flora, and climate. In fact, the larger the appellation, the more the variation. Geological studies have shown between ten and sixty soil types for the AOC Alsace grand cru.Footnote 9 Discussing “Bordeaux” as an appellation, Thierry Desseauve has noted that it “represents all forms of terroir, all kinds of microclimates, all situations, and finally all kinds of wines and prices.”Footnote 10

Similarly, the United States’ designated “American Viticultural Areas” (AVAs) are probably just “too big … to have real viticultural meaning.”Footnote 11 But this is genuinely a problem for appellations of all sizes. One French wine guide notes that within the Le Minervois AOC (a small region) there are four regions that are differentiated from each other by their terroir and climate.Footnote 12 Many northern California vintners have studied soil and slope characteristics to the point of dividing individual vineyards into “flavor blocks,” i.e., miniature terroirs that are viticulted differently.Footnote 13 Even in the case of salmon, writer Rowan Jacobsen observes that each particular stream may be its own terroir,Footnote 14 undermining any terroir meaning to “Alaskan” or “Norwegian” salmon.

But if this is the reality of terroir, appellations like “Bordeaux,” “Napa Valley,” or “Burgundy” make little sense from a terroir perspective. Nation-wide appellations like “Feta” or “Irish whiskey” make no sense at all. Large (but not too large) geographic areas like “Idaho potatoes,” “Parma ham,” and “Melton Mowbray Pork Pies” may make sense from the perspective of consistent cultural traditions, but the problem is that those traditions are transportable – a contentious point underlying the Europe/New World feud over GIs.

Not surprisingly, over time, there has been a loosening of the connection between terroir and GI law. The 1958 Lisbon Agreement requires that a product’s “quality and characteristics” be “due exclusively or essentially to the geographical environment” while recognizing that “human factors” could contribute to this equation.Footnote 15 In contrast, the definition of “geographical indications” in the TRIPS Agreement requires that the “given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.”Footnote 16 The 2015 Geneva Act revising the Lisbon Agreement offers two different definitions of a protectable GI: one mimics the TRIPS “geographical indication” definition while the other recites the 1958 Lisbon formulation but adds “and which has given the good its reputation.”Footnote 17

No one knows whether there is any difference between product qualities being “essentially” or “exclusively” due to the land, so it is unclear what the loss of “exclusively” means. What is clear is that the addition of “reputation” to the legal definitions could, broadly read, obviate any land/qualities connection of the sort that has been fundamental to the notion of appellations.Footnote 18 As Irene Calboli writes, this “allows GI producers to partially ‘de-territorialize’ the production of GI-denominated products” and “this partial ‘delocalization’ runs against the very rationale for GI protection – the linkage between the products and the terroir.”Footnote 19 And this is exactly the case with some GIs, such as the United Kingdom’s “Melton Mowbray Pork Pies” and India’s “Feni” liquor.

##### 3Geographical Indications Protection – Magic-Like Claims, Unproven Results
If the justification for legal protection of GIs has shifted in recent years, the strength of the European Union’s advocacy for GIs – mainly on behalf of France and Mediterranean Member States – has not. Here is an example of the European Commission’s claims about GIs in a more somber moment:

The protection of geographical indications matters economically and culturally. They can create value for local communities through products that are deeply rooted in tradition, culture and geography. They support rural development and promote new job opportunities in production, processing and other related services.Footnote 20

This statement is unimpeachable: GIs do “matter,” “can” do the things claimed, and appear to “support” rural development.

But at other times the Commission takes a more rhetorical tack. For example, a 2012 study commissioned by the European Union found that for 2,768 GI products from 27 EU countries in 2010 “[t]he average price premium for GI products was found to be 2.23, which means that GI products were sold 2.23 times as high as the same quantity of non-GI products, which shows that using GIs can achieve a higher market price.”Footnote 21

Of course, the evidence does not “show” that. Even if all the data are correct, what we have is a correlation (not causation) between GI protection and higher prices for GI products as compared to non-GI products in the same categories. Perhaps products bearing GIs command a price premium because they simply are, on the whole, better – with or without the GI labeling; or perhaps the products bearing GIs command a price premium because they are simply more famous, with or without the GI labeling; or perhaps they are better advertised. Ironically, the higher average price may even be because of non-EU demand for the GI-labeled products in jurisdictions that do not provide the heightened level of legal protection that the European Union claims is necessary (i.e., demand in the United States, Japan, China, etc.).

A more extreme claim is found in the 2009 “Teruel Declaration” of OriGin, an NGO dedicated to promoting GIs:

By providing jobs for millions of individuals around the world, helping preserve the environment and ensuring that the globalization of markets does not encroach on the diversity, quality and tradition of origin products, Geographical Indications (GIs) play a vital role in our economies and societies. Producers, both from developing and developed countries, increasingly rely on GIs for the sustainable development of their communities.Footnote 22

This passage is well beyond the usual overstatements from trade associations or nonprofits. Instead of focusing on increased price premiums (even without a causal analysis), OriGin makes a blanket statement that GIs “provid[e] jobs for millions of individuals” – as if the underlying products themselves would not sell at all without the GI protection. Unfortunately, some otherwise intelligent people buy into this kind of rhetoric. In a 2005 paper presented at a World Intellectual Property Organization (WIPO) meeting, a Kenyan government official reasoned that “GI protection would transform African farmers from raw material producers to exporters of differentiated products easily identifiable in the global marketplace”Footnote 23 and argued that GI protection against usurpation or dilution would “benefit” dozens of local Kenyan products – even though these products are generally unknown in developed economies.Footnote 24

###### 3.1No Across-the-Board Effects

But thoughtful people concerned about rural development know that strong legal protection of GIs is not such magic. Laws by themselves do not create commercial or reputational value: EU-level GI protection globally would not suddenly make “Asembo mangoes” or “Muruanga bananas” into premium-price products. As Carlos Correa has said, “geographical indications, like trademark, may in some cases play a decisive role in generating a premium over and above the price of equivalent goods, while in other cases their contribution cannot be distinguished from that attributable to the product itself.”Footnote 25 Bald claims about the economic value of GIs ignore the fact, as Carlos Correa has wisely observed, that “the final price of the product that incorporates an intellectual property component is a poor indicator of the value of the intellectual property itself”Footnote 26 and that “[s]eeking to quantify the current and, particularly, the potential, value generated by the use of a geographical indication is an extremely difficult task.”Footnote 27

In the words of a 2008 study commissioned by the European Commission to study the effect of “protected designation of origin” (PDO) and “protected geographical indication” (PGI) status:

A key limitation of the evaluation of the scheme is that, at the present time, data on the administrative implementation of the PDO and PGI scheme and on the PDO/PGI products are scant as, typically, Member States do not monitor the administrative and statistical aspects of the scheme such as the value or volume of production, sales, and prices of PDO and PGI products.Footnote 28

As that 2008 study further explained, although there are case studies claiming positive relationships between PDO/PGI status and improved prices, “[t]he limited number of case studies does not allow one to draw firm conclusions for the overall population of PDOs and PGIs.”Footnote 29

There are a number of good reasons why it is extremely difficult to figure out what impact GI legal protection has on the price of GI-labeled products, let alone whether different levels of legal protection might have different impacts on those prices:

1. [1] For some products, it is difficult if not impossible to disentangle premiums produced by trademark-protected brands and any premium produced by the GI. Scotch whisky would be a prime example.

2. [2] For some products, the price premium apparently preceded the formal GI status. For example, this is clear from the application for PGI status made by the Melton Mowbray Pork Pie Association:

Melton Mowbray Pork Pies are clearly distinct from other pork pies in their packaging, design and marketing at point of sale. They carry a price premium compared to other pork pies on the market place of 10–15 percent because they have a specific reputation that sets them apart as different and worth paying for.Footnote 30

1. [3] Studies and reports showing that local citizens place a premium on local GIs simply do not help us understand the mechanisms by which we could induce developed world consumers to pay more for products from distant developing locales.

2. [4] Even where a protected GI appears to command a price premium, the GI labeling and marketing often imposes higher production costs so the net price premium is unknown. In its 2008 review of eighteen case studies of EU-protected GIs, a consulting firm hired by the European Commission found that “[i]n 14 out of 18 cases, the price of a PDO/PGI product is higher than the price of the comparator product” but that “[i]n 10 cases, the costs of producing a PDO/PGI is higher than the cost of producing its comparator.”Footnote 31

One serious attempt to measure the effect of a legally protected GI is Dwijen Rangnekar’s study of “Darjeeling” tea in the WTO’s 2004 World Trade Report.Footnote 32 “Darjeeling” received GI protection as a certification mark in a number of jurisdictions in the 1980s – the United Kingdom, the United States, Canada, Japan, Egypt, and a number of European countries;Footnote 33 it has also been protected as a certification mark in India for decades.Footnote 34 Rangnekar and his colleagues found that (at least this level of) legal protection of the Darjeeling GI has had no noticeable effect on price over a twenty-year period. According to the report, “[t]he results obtained suggest that GI protection has increased the price of Darjeeling tea in total by less than 1 per cent in real terms over the 1986–2002 period. This result is suggestive of only a very modest price premium effect of GI protection.”Footnote 35 Of course Darjeeling is a very famous kind of tea, suggesting dimmer outcomes for less known GIs.

###### 3.2Why People Believe in Geographical Indications Magic

If the evidence is so mixed, what is the attractive power of stronger GI protection? How does the GI rhetoric take hold with people who do not come from privileged and famous agricultural locales like Champagne, Napa, or Parma? Developing countries are surely not looking to guarantee that they will pay more to producers of Champagne, Bourbon, Roquefort, and Feta.

The answer is pretty straightforward: there is something quite appealing about a law that will protect the name and integrity of one’s local products and supposedly propel those products into international recognition. Most people have some points of pride for their geographic homes and that local pride is often centered on food. The European Commission’s message is simple: your home probably has a unique and special local product and it would command respect and price premiums globally if only it had stronger legal protection.

That is an understandably seductive message, whether for people in Bergamo, Italy, who take “pleasure in consuming local products” and “regularly choose their own lard, salami and cheeses over other, even more prestigious, varieties”Footnote 36 or, half way around the world, for coffee farmers in the Highlands of Papua New Guinea who “think they are constantly being underpaid for their coffee, because it is better than all other coffee”Footnote 37 (even though Papua New Guineans generally do not drink coffeeFootnote 38). In this sense, strong GI protection becomes a matter of “respect” for their local products.Footnote 39

##### 4The Good and Bad of Geographic Origins Marketing

We should also recognize that GI-based marketing must respond to changing consumer tastes and concerns, only some of which benefit GIs.

###### 4.1The Appeal of Geographic Origin Marketing
A GI label can be, for a wide range of consumers, at least an indicator of the geographic origin of the product. In other words, geographic origin information may be important to the consumer for reasons completely separate from quality or characteristics (the terroir); in that context the GI label will serve a market and marketing function broader than the function attributed to it by GI theory. For example, interest in geographic origin of foodstuffs may be rooted in any of the following:
• a desire to lessen transportation effects on the planet, e.g., a Californian consumer might prefer Guatemalan or Costa Rican coffee over Ethiopian coffee;

• a desire to support countries with better human rights, worker rights, or democracy records, e.g., a preference for Costa Rican over Guatemalan coffee;

• a desire to support fellow countrymen, whether patriotic or nationalistic, e.g., a preference for Hawaiian Kona coffee over Sulawesi or Jamaican Blue Mountain coffee;

• a simple desire for a more specific, nonindustrial (or less industrial) narrative.

It is not hard to see strands of evidence supporting these different consumer interests – and how this connects or does not connect with protection of GIs.

Consider the first of these: the trend toward “localization.” As Daniel Gervais notes, some consumers’ insistence on geographic origin labeling “partly stems from a desire to buy more locally produced products and to reduce the carbon footprint of their consumption patterns.”Footnote 40 We see this trend not only in the rise of farmers’ markets and farm-to-table restaurants but in industrial producers informing customers of local sourcing – as when McDonald’s in Switzerland assures its customers that they work with Swiss agricultural partners.Footnote 41

This trend toward geographic identification can rely on – and strengthen – GI-based marketing, but it does not require full-fledged GI laws.Footnote 42 More importantly, to the degree consumers show preferences for local production, this does not bode well for developing country farmers using GIs to extract economic rents from developed country consumers. On the other hand, as a growing middle and upper middle class emerges in cities like Mumbai, Chengdu, Johannesburg, Kuala Lumpur, and Sao Paulo, this trend might produce parallel “local” substitution – if, for example, Mumbai residents increasingly prefer Goan Feni over “western” liquors.

###### 4.2Geographical Indications Marketing Amid an Abundance of Labels

In a broader perspective, today the geographic source information that is provided by GI labeling competes with a growing array of labels conveying information about (a) the product, and (b) what in international trade is called “process and production methods.” The former include “organic,” “non-GMO,” and “gluten-free”; the latter include “shade-grown,” “sustainable,” and “fair trade.”

We do not have any meaningful empirical evidence on how consumers – consumers in different places and different socioeconomic groups – respond relative to these different labels. There is no question that consumers are paying and expect to pay price premiums for products that are guaranteed to have many of these characteristics. But we do not know if consumers will pay more for geographic origin labeling than for organic, more for GI certified labeling than fair trade certified labeling, etc. For example, imagine a study that showed us the different price points that Australian or Japanese, Singaporean or American consumers would pay for the following different labeling/certifications:
“Organic French Roast coffee”
“Papua New Guinea coffee”
“Organic Papua New Guinea coffee”
“Fair trade certified Dark Roast coffee”
“Fair trade certified Papua New Guinea coffee”

That kind of empirical evidence would more meaningfully guide policy makers for at least three reasons: first, whether for Papua New Guinea coffee growers or Colorado iced tea bottlers, each of these certification processes costs time, effort, and money;Footnote 43 second, some retail outlets are available or foreclosed based on different labeling and rural practices;Footnote 44 and, third, there is good reason to think that consumers are or at some point will start suffering “label fatigue.”Footnote 45

While not the subject of this chapter, there is also a real danger that GI labeling will be misunderstood by consumers as signifying some guarantee of organic, natural, non-GMO, or fair trade production.Footnote 46 That connection is implied by comments about GIs enhancing “sustainability,” but sustainability of rural economies and “sustainable” farming are quite different. For example, according to one French consumer group study, French wine producers only use 3.7 percent of France’s farmland but account for 20 percent of that country’s pesticide use.Footnote 47 Indeed, organic winemakers in Burgundy have been fined and threatened with prosecution for refusing to use pesticides.Footnote 48 The confusion of GI labeling with production guarantees (“organic”) could accrue to benefit developing countries’ farmers, but price premiums through consumer confusion is surely not an acceptable policy objective.

##### 5A Complex Decision, Hopefully for Farmers

All of this produces a complex picture for policy makers who would help farmers in developing countries. One must assess the relative costs and benefits of different production and labeling practices that “de-commodify” local production. And that assessment has to be in the context of what is possible in that locale.

In the case of GIs – whether a sui generis system or a certification marks approach – one will need to define the geographic area for eligible production. This process can easily become highly politicized. Ironically, drawing the geographic boundaries should be easier when the GI seems to have little prospective reputational value. The next element is defining the production standards: ingredients, from where raw ingredients can be sourced, recipes, aging and fermentation practices, permissible technologies for distillation and/or storage, etc. As Dwijen Rangnekar notes:

A GI requires documentation of the production rules, thus the need for the relevant group of producers in the region and across the supply chain to arrive at some consensus. All this raises questions of participation, debate, disagreement, cooperation and all the messiness of politics and economics of who is involved, who is excluded, and who is leading the process of rule-making.Footnote 49

In the case of certification marks, a private leadership group can pretty much establish their own production standards; in the case of sui generis GI law, the producers will have to work with government agencies in what will be extended, detailed public–private sector collaboration.

Central government involvement also raises two other very important issues: capacity and extraction of economic rents. Simply put, the central government may try to extract economic rents by controlling when the GI designation can be used and by whom. There is always a danger that the GI will be used to strengthen a government’s role in the market – and that may or may not help rural citizens. The capacity issue is also a serious one. For example, economist Tyler Cowen has observed that “[m]ost African nations simply cannot afford the requirements for safety, labeling, and control that European-style regulation imposes on them.”Footnote 50

Fair trade and organic production and certification practices also impose a substantial burden in terms of training, labor, and community disciplines.Footnote 51 It may be that there is a broader international community of NGOs that can bring “off-the-shelf” organic, fair trade, and environmentally friendly production systems to rural communities, bypassing central governments. But there are also substantial efforts from the NGO community to help those who would pursue GI labeling.

Farmers, activists, and policy makers should also consider carefully the price differentials that different labeling produces. Discussions of organic, fair trade, and GI labeling are replete with claims about the higher prices that de-commodification brings, but we must focus on (a) whether farmers, rural workers, and rural communities are actually receiving the economic premiums, and (b) if and when higher production costs wipe out the value of those premiums.

With these issues in mind, let’s briefly consider three parables of de-commodification of developing country foodstuffs – Ethiopian coffee, Goan “Feni” liquor, and Papua New Guinea coffee.

###### 5.1Ethiopian Coffee and the Problem of Quality Control

Humanity’s consumption of coffee began in Ethiopia; the modern, high-end global coffee market is closely identified with Starbucks. So the feud that erupted in 2006 between Ethiopia and Starbucks over Ethiopian coffee names had all the makings of a good news story.

In the past few decades, Ethiopia has taken varied approaches to coffee production, but despite these shifts there seems to be agreement that “[t]he coffee value chain in Ethiopia involves a large number of intermediaries and is largely state-controlled.”Footnote 52 Beginning in March 2005 – during a period of relative liberalization – the Ethiopian government sought US trademark registration for three geographic names used for Ethiopian coffees: HARRAR, YIRGACHEFFE, and SIDAMO. The Ethiopians sought to register the names as regular trademarks. The United States Patent and Trademark Office (USPTO) quickly granted the registration application for YIRGACHEFFE.Footnote 53 But the HARRAR and SIDAMO applications were held up.Footnote 54

Starbucks had already applied for a trademark that included “Sidamo”; its application was for SHIRKINA SUN-DRIED SIDAMO.Footnote 55 More broadly, Starbucks publicly argued that it was a bad idea to grant regular trademarks to these Ethiopian place names, arguing that they are “geographically descriptive terms” and urging “a geographic certification program” to ensure that the names were used to “represent quality products that come from a specific region.”Footnote 56 For their part, the Ethiopians recognized that seeking trademarks for the names was a “new approach,” but said it was justified by the situation of small coffee farmers and traders in the country.Footnote 57

After receiving a blitz of bad publicity – much of it fomented by Oxfam – Starbucks softened its position, and in November 2006, Starbucks and Ethiopia reached an entente.Footnote 58 Eventually, SIDAMO and HARRAR obtained USPTO trademark registration.Footnote 59 Starbucks made some sort of promise to help promote the Ethiopian coffees, and Ethiopia gave Starbucks royalty-free licenses to use the three trademarks in conjunction with its sales of Ethiopian coffees – the same as Ethiopia had done for other coffee retailers.Footnote 60

There are different ways to interpret the Ethiopia/Starbucks dispute. In the dominant public interpretation, Starbucks was already using these geographic names in conjunction with Ethiopian coffees (as the result of buying bona fide Ethiopian beans at auction), and Starbucks did not want to start paying additional trademark-licensing fees to the Ethiopian government. In this narrative – according to Oxfam – Starbucks was trying to avoid paying $US 88–90 million a year to Ethiopia.Footnote 61 It is anyone’s guess how Oxfam got these numbers, and clearly those numbers were false in the sense that Ethiopia soon granted Starbucks royalty-free licenses for the trademarks. The idea that Starbucks was not paying enough for the geographically labeled product certainly feeds into the GI advocates’ narrative, fueling further misunderstandings. For example, in 2009, a University of Hannover professor characterized the dispute as one in which “[t]he Ethiopian government wants to protect coffee originating in those specific regions by using GIs as opposed to labeling as proposed by Starbucks.”Footnote 62 Of course, that is just the opposite of what happened: Starbucks had proposed the traditional GI mechanism in the United States (certification marks) and Ethiopia has insisted on regular trademarks (i.e., just “labeling”). As both sides tried to provide popular explanations of their positions, the story did not become much clearer. In a YouTube video, counsel for Ethiopia argued that “[a] certification mark provides much weaker control in the holder of the certification mark.”Footnote 63 Given that certification marks get the same level of protection under US trademark law (Lanham sections 32 and 43), what was Ethiopia’s lawyer trying to say in asserting that a certification mark gives less “control?” The point he may have been trying to make is that once a coffee roaster/retailer purchases coffee beans genuinely produced in the applicable region (and pursuant to any quality controls the certification mark requires), the coffee roaster/retailer would be free to use the appropriate mark (HARRAR, SIDAMO, or YIRGACHEFFE). He may have also meant that certification marks would give the Ethiopian government less leverage over its own farmers – again, as long as the farmer meets the certification mark standards, the farmer cannot be denied the right to sell his coffee as HARRAR, SIDAMO, or YIRGACHEFFE. In contrast, with regular trademarks the Ethiopian government is not required to be even-handed either with Starbucks or its farmers; that really does give it more “control,” particularly if the country’s farmers are increasingly selling directly to coffee roasters/retailers. But is that the sort of control we want to give an undemocratic, non-transparent central government over its farmers? One trade industry report ominously characterized the Ethiopian government’s efforts this way: “[w]hile certification marks are commonly used as a means of identifying products associated with a particular geographic region, the Ethiopian government elected to assert traditional trademark rights to identify itself as the ultimate source of the country’s specialty coffees.”Footnote 64 In other words, Oxfam’s intervention was clearly helpful to the central government in Addis Ababa but not to the provincial farmers. The effort to obtain regular trademarks may manifest the central government’s fear that, over time, they will not be able to stop direct sales between farmers and foreign buyers – and, therefore, will be cut out of the usual middleman rents that African governments have extracted.Footnote 65 In another interpretative variation, does the quest for regular trademarks manifest an admission by the Addis Ababa government that practically speaking it cannot police even minimal certification standards? This was the suggestion made implicitly by Ron Layton, the head of “Light Years,” an NGO trying to help African countries capitalize on their intellectual property: So what’s wrong with the regional [certification] model? Layton argues that certification – while it works well for a smaller country like Jamaica – would be too difficult to implement in Ethiopia. There are literally millions of Ethiopians moving coffee beans to only a handful of distributors like Starbucks.Footnote 66 A 2007 report on Ethiopia’s efforts similarly commented that “geographic certification” is valuable, but “it can be a costly mark to maintain” and that “[a]s the majority of Ethiopian farmers still live in extremely basic conditions, it is not a cost they can afford to absorb.”Footnote 67 And Ethiopian officials have been very blunt in their claim that the Harrar, Sidamo, and Yirgacheffe names “refer[red] not to geographical locations, but to distinctive coffee types”Footnote 68 and that “[t]he coffee varieties were not strictly regional … so wine-style designations would have made no sense.”Footnote 69 A benign interpretation of all these statements is that officials in Addis Ababa realize that they cannot establish an effective, dependable system for geographical certification, let alone additional quality controls that EU officials associate with true GIs. Finally, the denouement of this story also warrants our attention. Did the increased control of the three important Ethiopian geographic coffee labels in the world’s biggest coffee-consuming market help? My own site visits to Starbucks in different cities and review of Starbucks coffee guides show a general absence of Ethiopian coffees in Starbucks stores for years following the dispute. For example, a 2010 brochure for Starbucks in China shows eighteen different coffee offerings; of these, seven are single-source country or region coffees, none of which are Ethiopian GIs.Footnote 70 Indeed, in September 2013, Starbucks introduced into its US stores “a new single-origin coffee from the birthplace of coffee, Ethiopia.”Footnote 71 The coffee is called “Ethiopia” and the words “Sidamo,” “Harrar,” and “Yirgacheffe” do not appear anywhere in the packaging or promotional materials.Footnote 72 This “Ethiopia” coffee “joins Starbucks selection of 20 core and 10 traditional and seasonal whole bean coffees offered at Starbucks retail stores nationwide”;Footnote 73 it is also one of twelve single-origin coffees offered by Starbucks online.Footnote 74 As for Ethiopia’s protected marks, Starbucks appears to offer online only “Starbucks® Ethiopia Yirgacheffe® Espresso Verismo® Pods” in their coffee pod section.Footnote 75 The internal search engine on the Starbucks site also brings up “Starbucks Reserve Sun-Dried Ethiopia Sidamo” and “Starbucks Reserve Sun-Dried Ethiopia Harrar,” but neither of these can be found on the “reserve coffees” page as of May 4, 2016.Footnote 76 From Oxfam’s perspective, this might indicate bad faith on the part of Starbucks, but it might also be simply supply and quality issues;Footnote 77 or Starbucks’ need to rotate among different single-origin coffees; or Starbucks’ concern that “Sidamo” and “Harrar” coffees simply cannot be guaranteed to come from those places. Whatever the explanation, the Ethiopia coffee names saga is a sobering story on quality control and geographic guarantees, government relations to farmers, and the fact that promotion of developing country GIs will often rest with the goodwill of corporations in the developed world. ###### 5.2Some Observations on Goa’s Cashew Apple Feni In 2009, Dwijen Rangnekar published an extremely thorough and detailed case study of the development of GI status for “Feni” liquor from Goa, India.Footnote 78 Rangnekar’s research is a case study on the successful establishment of a protected GI: any local leader or NGO working on agricultural development and considering tools for de-commodifying farmers’ production would profit from reading his report. “Feni” is the name of a liquor that has been produced for centuries in Goa state in India. There are two principal types of Feni: coconut Feni, which was probably first, and Feni made from cashew apples, a tree that was imported in the sixteenth century from Brazil when Goa was under Portuguese rule.Footnote 79 Cashew apple Feni is typically made from fruits that have been allowed to fall to the ground before they are collected.Footnote 80 The apples are crushed, traditionally by foot but then by “stone-mortar crusher[s] using draught animals” and now mechanical crushers.Footnote 81 The juice is fermented for two to four days and then distilled in pot-stills that are of local design.Footnote 82 Historically, Feni was a triple-distilled liquor, but Rangnekar reports that there is now “a certain consensus towards a double-distilled Feni.”Footnote 83 It is not clear how the effort at GI registration got started, but a group of Feni producers organized as the “Feni Association” and worked extensively with the Goa Chamber of Commerce and the Goa Government Department of Science and Technology in drafting an application for protected GI status under India’s 1999 GI law. The application was submitted to the central Indian government in December 2007 and ultimately approved in February 2009.Footnote 84 This private-local government group rose to the bureaucratic challenge, “demonstrat[ing] a substantial effort in assembling the information for a GI application, coordinating the various interests and groups concerned with Feni, then responding to the examination process of the GI registry.”Footnote 85 Preparing that application required agreeing upon specifications. Rangnekar reports that research was undertaken by “an informal committee involving journalists and archivists, agronomists and scientists, and bottlers and distillers.”Footnote 86 Armed with those results, “distillers, bottlers and retailers need[ed] to agree to some minimum standards related to Feni while not excluding or marginalising the rich diversity and tradition of Feni-distilling.”Footnote 87 The Feni narrative demonstrates many of the basic issues in establishing a protected GI to benefit rural farmers, workers, and families. For example, although the process for preparing the GI application was elaborate and apparently inclusive, at the end of the day most Feni distillers did not know about the application (as compared to most Feni bottlers, who consolidate supply from individual distillers).Footnote 88 The decision to use the name “Feni” but exclude coconut Feni from the GI definition means, as Rangnekar says, a “loss of history and practice [that] is not entirely easy.”Footnote 89 It also likely means consumer confusion going forward.Footnote 90 Aspects of the Feni GI definition exclude a substantial number of distillersFootnote 91 while the permissible sourcing of cashew apples from anywhereFootnote 92 may, over the long term, work to the benefit of Goan distillers and bottlers, but to the detriment of Goan farm labor. On the other hand, Feni distribution channels suggest that the benefits of the GI might accrue disproportionately to bottlers who can send Feni beyond Goa’s borders instead of individual distillers who tend to supply bars, tavernas, and restaurants.Footnote 93 Indeed, this is implicit in the idea of Feni being “launched as a global liquor” like tequila.Footnote 94 The different interests and involvement of Feni distillers and Feni bottlers also reflect educational and socioeconomic differences: less than 8 percent of distillers completed their high school education but over 85 percent of bottlers did.Footnote 95 Finally – as I have emphasized earlier in this chapter – the mere creation of the GI protection does not establish demand for the product: Rangnekar concludes that the export market is currently limited to “Goa’s diaspora” and the reputation of Feni – promulgated in tourist books on Goa – as a local “fire water” means that “the tourist will be an unreliable and unlikely ambassador for a future export market.”Footnote 96 This is a real challenge because Feni production had already been in decline prior to the GI registration – despite otherwise growing alcohol consumption in India. The question is whether GI status can help reverse that decline over time. As one Indian observer asked in 2012, “[w]hy hasn’t the Goan feni industry been able to grow, despite it being granted the GI status?”Footnote 97 As of 2013, Feni distiller Gurudatta Bhakta concluded, “[t]he GI has not helped much in the promotion of cashew feni.”Footnote 98 One major reason appears to be other Indian regulations hampering Feni sales in India outside Goa state.Footnote 99 But the broader reason is that GI status itself only helps when there is a commitment to building the product’s reputation through improvement of product quality, consistent production (both of which may undermine traditional practices and biodiversity), and promotion. As one person central to the Goan Feni industry said, “It is now up to us as to how we take this forward.”Footnote 100 ###### 5.3Some Observations on Papua New Guinea Coffee In her 2012 book, From Modern Production to Imagined Primitive: The Social World of Coffee from Papua New Guinea, anthropologist Paige West has provided us with a rich account of the socioeconomics of coffee in one of Asia’s least developed regions.Footnote 101 In many ways, coffee production in the Highlands of Papua New Guinea is the opposite of Feni production in Goa. The Feni GI story happens in a comparatively rich and sophisticated polity (Goa state) in a mega-state with a sophisticated and robust legal system (India); as emblematic as Feni might be of Goa, the alcohol’s production is not a dominant element of the local economy. In contrast, coffee production in Papua New Guinea occurs in a country with a very small population and lacking a legal and policy infrastructure on par with that of the Indian subcontinent. More importantly, unlike Feni, coffee production is the economy for the Highlands of Papua New Guinea. While extractive industries are important to Papua New Guinea exports, “coffee is the only [Papua New Guinea] export commodity owned and operated by the local people,”Footnote 102 and coffee production is the most significant source of income for most people in the Highlands of Papua New Guinea.Footnote 103 According to West, “[b]etween 86 and 89 percent of coffee grown in PNG is ‘smallholder’ coffee, grown by landowners who live in relatively rural settings with small family-owned and family-operated coffee gardens.”Footnote 104 Not surprisingly, there have been efforts to de-commodify Papua New Guinea coffee along many of the marketing metrics identified above. Single-origin Papua New Guinea coffee is definitely present in the United States market: as of 2016, Peet’s Coffee sells “New Guinea Highlands” coffee; the Coffee Bean and Tea Leaf chain offers both “organic Papua New Guinea” and “Papua New Guinea Sigri Estate” coffees; and Amazon carries Papua New Guinea coffees from at least half a dozen smaller roasters with many of these labeled as organic, fair trade, or “direct trade.”Footnote 105 It would be much more difficult to determine what amounts, if any, of organic or fair trade Papua New Guinea coffees are going into blends like Starbucks “Estima” fair trade or “Yukon” organic coffees. From her anthropologist’s perspective, West sees these different labeling schemes as all aimed at giving Papua New Guinea coffee “a set of meanings that distinguish it from other coffees”Footnote 106 because “[c]onsumers are willing to pay more for coffee that has a particular story or a particular history.”Footnote 107 West is direct in her conclusion about how both fair trade and geographic origin marketing work: “[w]ith certified and single-origin coffees the images used to sell the products are also manipulated to make consumers feel as if they are also making other people’s lives better through the act of buying.”Footnote 108 Again, the situation with Papua New Guinea coffee reinforces some basic truths about the potential for GIs as against the spectrum of claims made by GI advocates. First, West concludes that while most Papua New Guinea coffee production comes from small individual farms, better-quality coffee comes from the larger, more industrial, less “traditional” sources of production.Footnote 109 In other words, whatever demand exists for Papua New Guinea coffee is not a function of small-batch, artisanal production. Second, any level of legal protection of the GI does not matter if the GI has no reputation with consumers – and it may be that Papua New Guinea is simply not that well known.Footnote 110 Third, even among those who know Papua New Guinea coffee, unless the coffee has a reputation for distinctiveness or excellenceFootnote 111 the GI may not carry a significant price premium – in which case emphasis on marketing through organic and fair trade channels may produce better results.Footnote 112 Not surprisingly, in 250-plus pages describing Papua New Guinea Highlands coffee production, West devotes almost no words to origin certification for Papua New Guinea coffee; at the local level, enhanced legal protection of Papua New Guinea as a GI is simply not seen as a priority to increase economic rents for Papua New Guinea coffee farmers. ##### 6 Conclusion GIs are a policy tool that can, in some circumstances, improve conditions in rural areas through price premiums paid for GI-labeled products. But the most important word in that sentence is “can,” not “will” or “do.” Instead of the simplistic promotion one hears from GI advocates, the United Nations Economic Commission for Africa’s 2016 study on IP policy struck the right tone: Geographical indication protection may be extended under collective trademarks, through a special geographical indication regime, or through disciplines on unfair competition. For some local agricultural products that have niche markets and high-value customers, geographical indication protection may add value and generate economic benefits in certain regions. However, increased geographical indication protection does not itself guarantee better market access unless quality is assured by, for example, producers’ complying with importing countries’ sanitary, phytosanitary and other quality regulations. Moreover, extended geographical indication protection could restrict local production of products that infringe foreign geographical indications. Therefore, a full cost-benefit analysis must inform the design of the national geographical indication regime.Footnote 113 That conclusion for African countries applies with equal force to the rural areas of Asia, Oceania, and the Americas. Those seeking to help de-commodify foodstuffs produced in developing countries must carefully examine each situation, including looking at the comparative costs and benefits that might accrue from fair trade, organic, or other labeling schemes. In short, the promise of geographical indications may be real – but it is a limited promise, not a money-back guarantee. ### 4 Rethinking the Work of Geographical Indications in Asia: Addressing Hidden Geographies of Gendered Labor Rosemary J. Coombe Footnote * and S. Ali Malik Footnote ** ##### 1 Introduction: Hopes for Geographical Indications and Acknowledging Their Limits Geographical indications (GIs)Footnote 1 are widely perceived to provide prospects for new forms of rural development, community autonomy, preservation of cultural traditions, and even the conservation of biological diversity when the production of goods encourages the stewardship rather than the depletion of the natural resources from which they are made.Footnote 2 They may also provide an effective means to protect traditional environmental knowledge (TEK) and traditional cultural expressions (TCEs),Footnote 3 enable the sustainable use of genetic resources, contribute to maintaining agricultural landscapes, and utilize TEK that might otherwise be lost.Footnote 4 Consequently, the European Union has promoted their extension across the Global South as a rural development strategy that, not incidentally, supports European interests in global trade.Footnote 5 Asian countries have seen in GIs a means to protect artisanal knowledge,Footnote 6 viewing human factors such as producer know-how, skills, and practices as linked to a particular territory and its means of production. The broader group of legal vehicles we refer to as marks indicating conditions of origin (MICOs) are attractive to development practitioners who hope to prevent social inequalities by creating community controls over economic activities that tie rural areas into larger markets and forge collective rights indivisible from locality.Footnote 7 For rural economies, GIs are extolled as providing “a physical and conceptual structure for affirming and valuing the unique socio-cultural and agro-ecological characteristics of a particular place”Footnote 8 which may have spillover effects that contribute to regional branding and foster tourism. Nonetheless, there is considerable evidence that poorly designed GI systems negatively transform the conditions of production they are celebrated as sustaining.Footnote 9 Such systems have a tendency to conflate nature and culture and to uniquely depoliticize relations of production in their regions of application. The discourse advocating their adoption and celebrating their use relies on a “social imaginary” of place-based products that projects a harmonious community, represented “holistically, possessing singular traditions and rooted in a particular place characterized by a naturally bounded and distinctive ecosystem.”Footnote 10 This social imaginary binds traditions to territory through an Orientalist lens in which peoples collectively share narratively romanticized bonds to a natural environment shaped by their labors into an authenticated place. The use of GIs tends to imbue products with distinct attributes that simply reflect local biodiversity and cultural distinction, both presumed to be isomorphic with a community. Thus a stable, unified, and harmonious place is ideally imagined, represented, and, ultimately perhaps, even experienced. In neoliberal terms, this is a “win-win” scenario where tradition, culture, and knowledge are simply integrated into global markets and legally protected in a global trading system. This social imaginary presumes a unified community that will receive uniform benefits from its use, a scenario which usually has little factual basis, as we have explored elsewhere.Footnote 11 Diverse stakeholders in supply chains are assumed to all share similar interests in developing a region’s reputation through the marking of distinctive goods. Nonetheless, GI premiums are rarely shared equitably, particularly in the Asian context, where traders are treated as if they are producers and constitute the most powerful actors in the value chain.Footnote 12 As Basole’s fieldwork in the Banaras textile industry revealed, artisans see very little of the GI premium and the system does little to assist those facing destitution.Footnote 13 It is interpreted in a way that imposes outside notions of authenticity, prevents the community from innovating, and is biased toward distributing value toward merchants and traders.Footnote 14 GIs imposed from the top-down tend to favor more powerful actors. Benefits rarely trickle down to small producers or individual artisans; traders and master weavers with bargaining power in the supply chain are often the primary beneficiaries of increased revenues in a cottage industry in which it is very difficult for traditionally non-weaving castes to find any access. Consumers often have little or no idea of who the producer is, and producers have scant information about how their products are marketed.Footnote 15 Such limitations of GIs in practice are not unique to the South Asian context. State-driven GI strategies that focus primarily upon increased productivity and export earnings tend to further deprive small producers and privilege industrial elites wherever they are introduced.Footnote 16 Even in the European context, experts caution against the general promotion of GIs and urge attention to their governance when assessing their capacities to propel equitable rural development.Footnote 17 The oldest appellations of origin were developed to protect aristocratic traditions and continue to reflect class-based privilege, concentrate control over governance in small elites, restrict the upward mobility of smallholders, discourage the formation of or supplant co-operatives, and entrench poor agricultural working conditions.Footnote 18 Many MICO regimes have reduced rather than increased local biological and cultural diversity.Footnote 19 Moreover, the dominant social imaginary offered by proponents for GIs tends to be localized in activities of marketing, which do not merely misrepresent social realities but shape them, naturalizing hierarchical labor relationsFootnote 20 and influencing the ways stakeholders come to understand their relationships to these products.Footnote 21 Although marketing strategies are ideally formulated with the input of various stakeholders in the supply chain, the most well-connected corporate producer bodies and owners of large agricultural holdings have the greatest influence, shaping these narratives in ways that reinforce their privileges. Rather than merely promoting unique differences that pre-exist them, “GIs are being cultivated to promote products, processes and methods traditional to places, and traditions are being cultivated to support these marketing vehicles.”Footnote 22 Given the diversity of current GI regimes, few generalizations about their promise or performance as a global category seem warranted without greater empirical study of the actual conditions governing their use. Local regulatory mechanisms need to be analyzed within a broader scope of inquiry that is attentive to local conditions of class, ethnicity, and gender. Most academic scholarship ignores the social relations between workers, landowners, producers, and the degree to which MICO institutions represent their respective interests. Few scholars studying GIs consider political movements for decolonization or postcolonial forms of emancipation. In the South and Southeast Asian context, we should consider the propensity of GI governance to challenge or to further entrench patterns of plantation agriculture, peasant dispossession, and the legacies of exploitative labor relations. In this chapter we show how current uses of MICOs encourage tendencies toward socio-economic marginalization, reinforce local divisions of labor, and obscure colonial patterns of landholding. If the World Intellectual Property Organization’s development agenda is to have any meaning, we need to focus on MICOs as forms of local governance, and ask to what extent they might govern differently – to challenge rather than reinforce entrenched social hierarchies,Footnote 23 contribute to rights-based development,Footnote 24 or achieve social justice objectives.Footnote 25 We will first describe some of the ideological tendencies in MICO rationales and consider how a famous GI, Darjeeling Tea, is used to protect goods considered traditional to a region in India. We then provide some insight into contemporary Southeast Asian political ecology to show why MICOs and their governance should be considered matters of pressing global concern. Finally, we explore emerging politics, practices, and policies in value chain governance that might ground Asian MICOs in alternative norms to meet the needs of wider constituencies while advancing environmental as well as social justice objectives. ##### 2Existing Landscapes of Geographical Indications: Darjeeling Tea The Darjeeling Tea GI is widely celebrated as having extended IP-based justice to the Global South;Footnote 26 it was the first of India’s now over 230 registered GIs.Footnote 27 There is no doubt that it has been a marketing success in raising export earnings. The Tea Board of India controls this GI as a form of national IP, designating select plantations as natural garden homes for a unique tea, based in a terroir constituted primarily, we would suggest, through tropes of enchantment. Anthropologist Sarah Besky collected hundreds of Tea Board papers like this one: What is it that makes the world’s tea aficionados rush to Darjeeling during spring-time to “book” the first flush teas? The answer? … Darjeeling Tea just happens … To science, Darjeeling Tea is a strange phenomenon. To the faithful, it is a rare blessing. Thankfully, the Darjeeling Tea Estates have always lived by their faith-by humbly accepting this unique gift of nature and doing everything to retain its natural eloquence. So, Darjeeling tea, hand-plucked by local women with magician’s fingers, withered, rolled and fermented in orthodox fashion, with the sole intention of bringing out the best in them.Footnote 28 It is easy to dismiss such romanticism as mere advertising, but Besky draws our attention to the labor conditions that support it. So-called “Indian” Darjeeling Tea is picked nearly entirely by Nepali-speaking women, descendants of the indentured women from Nepal who brought this tea and their knowledge of its cultivation to a region that was incorporated into India in 1947. In the GI campaign, gendered, arduous, and exploitative industrial plantation toil (still locally disparaged as “coolie” labor) is erased, replaced by the craftwork of angelic guardians whose TEK is deployed in their gentle care of tea gardens – where they are naturally placed and affectively bound. To cite another Tea Board advertisement, “Perhaps it is the warmth of their touch which gives the brew such sweetness.”Footnote 29 This advertising imagery has a real impact on people’s lives and livelihoods. Besky reminds us that Darjeeling Tea is understood as national cultural patrimony, intangible cultural heritage, and the basis for a new industry – tea tourism – in which women are disciplined to “perform” the smiling docility of the GI’s social imaginary. These women make$1 a day, work sixty-hour weeks, and are tied to plantations by debt; they inherit rather than choose their jobs and are reliant upon plantation owners for housing, healthcare, schools, and access to subsistence plots on environmentally degraded lands. In neocolonial, patriarchal labor conditions, such widespread gendered representations warrant serious consideration. Do they improve or undermine workers’ capacities to critique conditions of production or to articulate ways to transcend them? To the extent that such branding supports a new industry whose profitability is dependent upon meeting tourists’ expectations, to what extent will the capacities of women to transform their less than idyllic working conditions be enhanced?

The GI region comprises eighty-seven plantations, populated by semi-bonded labor; many were revived by the GI. It is not co-extensive with the Darjeeling district of West Bengal, where the same tea is cultivated by Adivasis (tribal or indigenous peoples), who are wholly excluded from this new market. The indication also excludes Nepal’s own smallholder co-operatives – viewed as imitators from whom Darjeeling needs to be protected.Footnote 30 Much of this tea is certified as fair trade, a practice that reproduces a patronizing narrative in which a Northern, modern, urban consumer savior provides an empowering lifeline for a Southern, traditional, impoverished, rural peasant.Footnote 31 Historically, fair trade certification disregarded disparities in gender, was not sympathetic to unions, and seemed to prefer peasant producers lacking any organization other than co-operatives.Footnote 32 Instead of bringing Western consumers closer to workers in a relation of greater justice, the administration of the Darjeeling mark creates greater distance between the female tea pluckers and consumers – some of whom are tourists dressing up as smiling tea-pickers to mimic the Tea Board advertisements (!). The workers have new jobs to add to their toil – posing for pictures and singing for visitors – captive creatures in a practice they describe as “turning the plantation into a zoo.”Footnote 33

In neighboring smallholder plots, anthropologist Debarati Sen reports, Nepali tea pluckers also feel objectified:

You know that smiling woman on that tea package is not us. It’s nice to know people around the world care about us so much, but why now? Where were these people when we had no roads, when no one gave us loans, when we ate only stale rice? What can they do for us if they do not care about what we women want?Footnote 34

These farmers criticize the nature of fair trade justice and empowerment because of its lack of support for their own efforts to improve their communities, contest local patriarchies, resist the domination of local middlemen, and engage in entrepreneurial activities to meet their family needs with dignity.

Historically, because these women were squatters on abandoned plantations, whose rights to the lands they worked were unrecognized, they could not access the state-subsidized, high-yielding Green Revolution technologies targeted for plantations. In short, they learned to cultivate illegal tea with manure and homemade compost, a tradition of knowledge born of poverty and necessity. When, in the 1990s, organic tea was newly valued in global markets, plantations were forced to give up chemical fertilizers; their productivity declined 30 per cent. To augment supplies, plantation managers made agreements with these illegal producers who were assisted by NGOs to register themselves and market their tea as “co-operatively produced” rather than become wholly subsumed under the plantation labels.

Although nearly all of this tea is farmed by women, the advent of global consumer interest prompted underemployed local men to seize these new opportunities, quickly assuming management of the co-operatives as middlemen with the new international agencies. Controlling the new profits, they invested these in ways that did not support or provide benefits to the women whose labors had sustained the organic production from which the community was now benefitting. Women’s efforts to diversify the local economy received no assistance and their organic quality-control work attracts no compensation. The men do not use any part of the fair trade premium to support female entrepreneurial activities; indeed, women are sexually shamed for engaging in such immodest work. Nevertheless, they still consider themselves far better off than the female plantation workers whose celebrated labor supports the GI.

If inclusion of plantation-based goods in fair trade incorporates these goods into a market, it does little to provide any form of political recognition for plantation laborers. It appears to exclude them into the “global community of solidarity and interdependence” between producers and consumers that the fair trade movement propounds as an alternative to global capitalism.Footnote 41 Plantation workers are denied representation and voice in the framing of transnational justice by Fair Trade USA, which insists upon describing industrial agricultural enterprises as “farms” to avoid issues of land tenure and labor organization.Footnote 42 Equal Exchange ignores the historical forces which have divided peoples into those who have the opportunity as landholders to cultivate crops and co-operativize, and those whose political marginalization was more deeply entrenched by colonial rule, while ignoring gender and ethnicity:

[I]n Darjeeling[,] Nepali tea pluckers, like ethnically-marked plantation and large farm workers in other parts of the world, are multiply oppressed. As plantation workers, many lack full access to participation in a global economic order. As Nepalis within India, all struggle for recognition as well as full domestic political representation.Footnote 43

Both co-operative and plantation workers are linked as much by their shared struggle for representation within the Indian state as by their experience of economic hardship.Footnote 44 Fair trade certification evades these political struggles and thereby “ignores – and by extension reinforces – the deep-seated ethnic marginalization that has sustained the Darjeeling tea industry for nearly 180 years.”Footnote 45 Such selective political attention, however, is not necessary to certification systems; alternative forms of transnational solidarity are possible. In order to address other forms of oppression based on cultural, linguistic, ethnic, and gender identity, however, GIs must attend to the ways in which people make their own claims and give voice to their needs. As we shall explore, this concern with representation and voice is precisely the way in which new MICOs are evolving. In the meantime, hundreds of thousands of people across Asia are being pushed into plantation agriculture under conditions that promise to exacerbate climate change, rural insecurity, and human rights abuses.

##### 3The Crisis of Biocultural Diversity in Southeast Asian Political Ecology

A great tract of Earth is on fire. It looks as you might imagine hell to be. The air has turned ochre: visibility in some cities has been reduced to 30 metres. Children are being prepared for evacuation in warships; already some have choked to death. Species are going up in smoke at an untold rate. It is almost certainly the greatest environmental disaster of the 21st century … Fire is raging across the 5,000km length of Indonesia … currently producing more carbon dioxide than the US economy. And in three weeks the fires have released more CO2 than the annual emissions of Germany … Orangutans, clouded leopards … the Sumatran tiger … are among the threatened species being driven from much of their range … After the last great conflagration, in 1997, there was a missing cohort in Indonesia of 15,000 children under the age of three, attributed to air pollution. This, it seems, is worse … It’s not just the trees that are burning. It is the land itself. Much of the forest sits on great domes of peat … the fires … smoulder for weeks, sometimes months, releasing clouds of methane, carbon monoxide, ozone and exotic gases such as ammonium cyanide.Footnote 46

###### 3.1Deforestation, Plantation Agriculture, and the Decline of Swidden Cultivation

Palm oil may be the largest cause of deforestation, land-grabbing, and labor exploitation in the world. It permeates our food chain; it is in almost half of all supermarket products.Footnote 47 Indigenous peoples and communities inhabit the frontlines of palm oil expansion; they face loss of lands, threats to security, and marginal economic benefits from a new monoculture plantation economy, powered by global corporate demand for the most widely consumed vegetable oil on the planet.Footnote 48 For years, the palm oil sector has manifested incontrovertible evidence of the widespread loss of forests, burning of peatlands, stealing of community lands, and the use of child and slave labor.

The expansion of palm oil plantations in Indonesia is part of a massive increase in commercial agriculture across upland Southeast Asia. Swidden agriculture, also known as shifting cultivation,Footnote 49 is the traditional land use system in this region; until recently it was the most extensive landscape in Southeast Asia.Footnote 50 Rapid transitions in land use in the humid tropical uplands of Southeast Asia are replacing swidden agriculture and displacing its traditional practitioners.Footnote 51 Hundreds of forest species, managed by communities dependent upon them for subsistence/sustenance and marketable products, may also be at risk.

Governments denounce swiddening, associating it with deforestation, inefficient carbon sequestration, and degradation of soil and water resources.Footnote 52 However, these rotational crop systems “include a wide range of land use and management practices that affect carbon cycling differently,”Footnote 53 providing various kinds of regrowth,Footnote 54 with fallows offsetting planting-phase CO2 emissions.Footnote 55 Governments have never, however, measured impacts across the landscapes people cultivate over time.Footnote 56 Swiddening is difficult to measure because it is represented by a large number of distinct landscape features, which may be in transition and mistaken for other land uses, with swidden fallows considered to be “wasteland/abandoned/unused” or “residual/miscellaneous,”Footnote 57 rather than recognized as part of an agricultural system. Climate change mitigation policy has made research into these systems imperative because they are rapidly disappearing in mountain regions of Asia as farmers are pushed by national policies and pulled by market forces toward high-value commercial crops, especially rubber and oil palm.Footnote 58

Long before swiddens were denigrated as environmentally destructive,Footnote 59 they were discouraged and their cultivators often criminalized throughout South and Southeast Asia.Footnote 60 Most colonial and postcolonial states engaged in coercive efforts to eradicate swiddening as economically inefficient and socially uncivilized. If scientific research no longer supports these prejudices,Footnote 61 swiddening’s historical practitioners continue to bear stigma. Widely vilified, considered primitive and obstacles to progress, they have faced policies of harassment, eviction, and sedentarization throughout Southeast Asia.Footnote 62 In the Philippines, for example, the Spanish used the Regalian Doctrine to categorize and divide the nation into two social groups: Christians who, being closer to God, were the productive social class that occupied lowlands with title; and a tribal pagan minority who, by avoiding proselytization, were considered primitive uplanders occupying public domain without title.Footnote 63

There continue to be clear political and strategic advantages for states in differentiating between agricultural and forest lands; rights of tenure were attached to the former while the latter was claimed as state domain. By misrecognizing fallows and secondary forests of swidden agriculture as forest terrain, not only could these be described as environmentally degraded, but they could also be seized by states and opened up to migrant farmers for permanent agriculture, while swiddeners were criminalized for further cultivating them.Footnote 64 Across Asia swiddeners lost lands to illegal logging, livestock grazing, long-term cultivation of annual crops, greenhouse horticulture, coercive development projects, and, most recently, monoculture tree plantations.Footnote 65 Their antagonists insist upon the greater productivity and environmental sustainability of these new practices despite considerable evidence to the contrary.Footnote 66

Swiddeners in the Philippines were the first to align with NGOs and join global social movements pressing for land and livelihood rights as indigenous peoples with cultural identities tied to these agroforestry systems.Footnote 67 Regional groups now press for such recognition.Footnote 68 The Asian Indigenous Peoples’ Pact (AIPP) estimates that close to two-thirds of the world’s 370 million indigenous peoples are in Asia, and that between 14 and 34 million of these groups practice shifting cultivation in Southeast Asia.Footnote 69 Increasingly, they work with international environmental organizations to document the TK of swiddeners and the ecosystem services (ecoservices) they deliver. Swiddening is practiced largely by ethnic minorities, historically disparaged as hill tribes; it has been suggested that “the notion of indigeneity took shape as a counter-discourse intended to refute the claim that shifting cultivators were forest destroyers.”Footnote 70 Regional indigenous organizations are now supported by transnational environmental and food security organizations alarmed by the environmental and social consequences of intensified agriculture.Footnote 71 They argue that shifting cultivation is important to local food security and nutrition, closely tied to ritual cycles, and constitutive of local cultural identities; in 2014, the United Nations Food and Agriculture Organization (FAO) Assistant Director General and Regional Representative for Asia and the Pacific asserted that swidden agriculture was the cultural heritage of indigenous communities.Footnote 72 Although many shifting cultivators may choose to transition to intensive agricultural production, others want to maintain swiddens, not only for the security they provide against landlessness,Footnote 73 but because their decline undermines collective decision-making, customary land claims, and community governance.Footnote 74

Many indigenous farmers willingly adopt new forms of agriculture, but others have little choice; although earlier shifts to smallholder commercial agriculture appear to have been voluntary, the recent rise of commercial estates (particularly in Malaysia, Indonesia, and the Philippines) has led to a widespread, rapid, and often brutal demise of this agroforestry systemFootnote 75 with significant local and global environmental consequences. Policies promoting industrialized agriculture and timber farming in Asia are responsible for accelerating rates of deforestationFootnote 76 and raising greenhouse gas emissionsFootnote 77 by reducing total carbon stocks.Footnote 78 Increases in agricultural productivity have generated high rates of erosion and enhanced probability of landslides, sedimentation in rivers, declines in water quality, and stream desiccation caused by irrigation. When monoculture plantations are planted with non-native species at relatively high latitudes and elevations, water shortages occur.Footnote 79 In Asia, the multiple-use forest reserves where swidden communities reside are more effective at fire prevention than other so-called protected areas, suggesting that swidden demise and regional conflagration are integrally related.Footnote 80

###### 3.2Undermining Indigenous Livelihood Security and Ecosystem Services

Numerous studies show swiddening to be a rational, economical, and environmental choice for resource-poor farmers, providing ecoservices in hydrology, biodiversity, and carbon storage that may help to mitigate climate change.Footnote 81 Swiddening requires relatively large forested landscapes and affords lower short-term economic return, but provides benefits that permanent agriculture does not. Biodiversity benefits under swidden are greater than monoculture plantations or other agroforestry options;Footnote 82 not only maintaining, but increasing biodiversity in some regions, as secondary successionFootnote 83 in swidden fallows provides diverse habitats and preserves genetic resources.Footnote 84 Shifting cultivation also maintains a diversity of human food sourcesFootnote 85 and plant species, with a variety of local uses,Footnote 86 as evidence throughout the region indicates.Footnote 87 Even farmers who undertake commercial farming are reluctant to abandon swiddens because they function as important social safety nets against market fluctuations, climate shifts, forest fires, encroachments from migrants, and logging.Footnote 88 Few swidden households in the region have the asset base that the new agriculture demands or access to the land, credit, and networks needed for maintaining intensified production.Footnote 89 Although commercial agriculture raises the income of former swidden farmers, their vulnerability increases with specialization, leaving them indebted and pushing them into wage labor. Some peoples continue to uphold swidden practices because they consider it part of their cultural identity;Footnote 90 others find new markets for swidden crops. Nearly all hold significant agricultural TEK, the loss of which the global community sought to avoid when the Convention on Biodiversity (CBD) recognized the significance of local communities’ knowledge, innovation, and practices in preserving biodiversity and maintaining genetic resources.

The landscape and species diversity that swiddening maintains contrasts starkly with the changes in land use being encouraged by or pressed upon peoples across Southeast Asia; plantation agriculture, particularly, results in deteriorated soil quality.Footnote 91 Nearly all alternative land-use scenarios proposed in the region produce more decreased stocks of soil organic carbon and fewer ecoservices than provided by swiddens.Footnote 92 Nonetheless, “global forest governance initiatives and national governments continue to press for the replacement of swidden with other land uses, such as monocrops considered to be better for carbon and livelihood outcomes.”Footnote 93 Scientific debates are ongoing, but bring little relief or political leverage to peoples dispossessed from these traditional agroforestry systems. Many commentators propose territorial solutions based on park protection that recognize synergistic linkages between biological and cultural diversity, which became apparent when the criminalization of indigenous agriculture in many areas simultaneously facilitated both detribalization and the erosion of culturally rooted resource management practices.Footnote 94 Nonetheless, new models are emerging for recognizing biocultural heritage as an aspect of what are increasingly known as biocultural rights.Footnote 95

###### 3.3Women’s TEK in Swidden Agriculture

The contribution of Asian women in ensuring household economy and nutritional security through their management of natural resources has only recently become the subject of scholarly research.Footnote 96 Elderly women hold encyclopedic TEK derived from years of informal experimentation with biodiversity.Footnote 97 In many mountainous ecosystems, women’s lifelong need for location-specific knowledge makes them “the backbone of food, medicinal, and nutritional security.”Footnote 98 Theoretically, men and women have equal needs and opportunities to conserve biocultural diversity for sustaining livelihoods in the face of socio-economic, agricultural, and climate change,Footnote 99 but women face greater challenges to maintain livelihoods in shifting mountain ecosystems.Footnote 100 Policy makers and planners in Southeast Asia seldom consider women’s knowledge and experience in devising policies for biodiversity conservation at the ecosystem level.Footnote 101

Women play key roles in rice cultivation, seed selection, conservation of vegetable crops, and the use and storage of produce; they are responsible for agricultural innovations dependent upon systematic observation, careful experimentation, and adaptation. Historically they had considerable autonomy and greater sexual freedom, characteristics “interpreted as indications of depravity by dominant groups,” which reinforced notions that swiddeners were “primitive” – the ultimate “others” whose agricultural practices were irrational and in need of reform.Footnote 102 Negative attitudes toward women’s agricultural work contributed to the generalized regional disapproval of swidden systems. In rice-growing swidden regions of Borneo, Sarawak, Java, Kalimantan, Laos, Thailand, and Nepal, women were active cultivators who led the harvesting rituals. They appear to have dominated the collection and trade of non-timber forest products in the fallows from which they have been dispossessed.

Moving into monocropping deprives women of access to resources necessary for maintaining an adequate living, forcing them to travel further and work much harder to provide food and fuel for their families and livestock. The TEK of shifting cultivation in South and Southeast Asia is increasingly held by women resisting industrial agriculture or maintaining swiddening instead of, or alongside, commercial crop activity. Often, only elderly women are left to safeguard and transmit swidden-related rituals and practices,Footnote 103 which are likely to disappear if their values are no longer appreciated. Asian indigenous peoples’ organizations concerned about the decline of swidden cultivation emphasize the key role of women’s TEK and the need to encourage its transmission.Footnote 104 In addition to better support for the production and marketing of non-forest timber products, they seek to have barter systemsFootnote 105 and seed exchanges recognized as vital to biocultural conservation. They hope to develop value chains in “the promotion of a sustainable creative economy” involving “the marketing of indigenous handicrafts, designs, and other creative products as means of livelihood and promotion of indigenous cultures.”Footnote 106 Novel usages of intellectual property seem inevitable in these emerging conditions, and new forms of MICOs could serve these purposes.

Much of the most extensive knowledge of women’s TK comes from the seven sister states of Northeast India.Footnote 107 Home to more than 166 distinct tribes, the region features a multiplicity of forest-dependent cultural communities that practice traditional swidden agriculture and govern resources through indigenous institutions.Footnote 108 It thus has a rich heritage of culturally embedded TK, which protects biodiversity and local ecosystems.Footnote 109 Tribal women in the region are major stakeholders and custodians of knowledge, conserving food and medicinal plants in both “jhum” lands (the regional name for swiddening) and home gardens.Footnote 110 As agricultural plant scientist Ranjay K. Singh laments, “despite the rich knowledge of women, and their role in conserving biocultural diversity as experimenters, conservators and stabilisers of foods, medicines and other indigenous resources, their contribution is rarely recognised at the policy level.”Footnote 111 Although there are numerous TK protection initiatives in India, no area of national government has shown significant interest in assessing the erosion of tribal TK and its implications for biodiversity and the continuing resilience of indigenous livelihoods in the region.Footnote 112

The state of Arunachal Pradesh is considered one of the biodiverse areas of the country. It is home to 26 tribes and 110 ethnic groups, who largely reside in forest areas on which they are dependent for socio-cultural, food, and livelihood requirements.Footnote 113 Most tribal groups have maintained distinctive indigenous landraces for subsistence and ritual purposes.Footnote 114 Although such groups do not yet face absorption into commercial or plantation agriculture, increasing population levels, rapid urbanization, greater incorporation into market economies, transitions to individual land ownership, and the breakdown of extended families are threatening women’s TEK, while modern educational systems tend to make children less interested in maintaining the communal ways of life that rely upon it. Top-down development projects encouraging commercial cultivation of oranges, pineapples, and ginger (as well as the recent introduction of exotic crops) have reduced numbers of indigenous crop species and wild-growing plants in jhum lands.Footnote 115

In 2003, the Arunachal government reviewed its developmental policies and formulated state policies indicating an interest in promoting TK-related biodiversity and protecting the IP of knowledge holders.Footnote 116 Singh and his collaborators used participatory research methodologies to identify Adi and Monpa community knowledge holders, document their TK, and design biocultural conservation activities, including community knowledge gardens, the promotion of TK-based microenterprise, and contests to enhance appreciation for TK in the area.Footnote 117 These village-based participatory TK workshops were amongst the first in India, and recorded practices relating to food, medicine, agriculture, animal husbandry, handicrafts, cosmetics, and biodiversity conservation. Biodiversity contests in local schools tested children’s TK and generated new enthusiasm. Recipe contests validated elderly women’s knowledge of nutritional healthFootnote 118 while revitalizing customary lateral and vertical networks of knowledge sharing (these traditionally enabled cross-cultural transfers and refinements of knowledge on ethnomedicine and facilitated the flow of genetic resources from one biome to another).Footnote 119 Indigenous women were trained to understand Free, Prior and Informed Consent (FPIC) principles, and how to manage and update TK databases, microenterprises, and screen practices for their market potential. These activities have enhanced valuation of biocultural resources and appear to have revitalized interest in using and developing ethnomedicines and domesticating food plant species, resulting in a heightened sense that the area’s plants, animals, and related cultural practices were part of a tribal collective biocultural heritage rather than individual properties.Footnote 120 Significantly, “biological geographical indicators” were proposed as a MICO to designate new TK-based goods and technologies.Footnote 121 MICOs might be used to duplicate these efforts in other regions in Asia to support women in maintaining swiddens.

###### 3.4 Gendered Labor in Emerging Plantation Economies

Shifts from swiddening to commercial agriculture weaken biodiversity and women’s TEK while introducing practices of land and resource dispossession, creating communal insecurity and conditions of precarity ripe for the abuse of women and children. The consequences of oil palm plantations for women have only recently become the subject of critical attention and there is a paucity of empirical research in the field.Footnote 122 One significant exception is a study by anthropologist Tania Li commissioned to address the gendered impacts of Indonesian oil palm expansion under both smallholding and plantation models.Footnote 123 Most of Indonesia’s oil palm is on the island of Sumatra, but Kalimantan was the main region of expansion from 2005 to 2013, adding 1.5 million ha of plantations and a much smaller area (228,000 ha) of smallholdings. Her study illustrates some striking historical tendencies of the impacts of palm oil industries upon women in swidden regions.

Historically, the Indonesian state designated huge areas of territory as “concession lands” which were thereby available for oil palm development. Such territory appears to have deemed public domain under state forestry law, where the customary land rights of swiddeners were unrecognized.Footnote 124 Although little oil palm is planted on what the state considers to be primary forest landFootnote 125 (a category which may reflect only the longer length of swidden fields lying fallow in an area), much of it is planted on lands from which customary landholders are now excluded. They can neither farm independently nor access what were until recently considered common resources necessary for rural security of livelihood. The state, which has not historically recognized these lands, issues plantation licenses that require companies “to negotiate with communities and individuals for release of their customary rights,” so that “customary rights are only recognized provisionally and contingently, just enough to facilitate their release to corporations.”Footnote 126 People cede these lands in return for small payments or vague promises of inclusion in future smallholder schemes; many, it appears, do not understand these “releases” as permanent alienations. Oil plantations are sites of the most violent of Indonesian land conflicts, which are likely to escalate as former landholders become squeezed between plantations, unable to make a living on smallholdings or bestow lands to their children.Footnote 127 Unless they become employees of plantations, former landholders are likely to become unemployed or casual laborers paid below provincial minimums.Footnote 128

Smallholder schemes in which holders might independently farm lands to which they would eventually receive title were historically introduced alongside state and corporate plantations that absorbed the labor of swiddeners and transmigrants. By the late 1990s, companies were reluctant to engage in further smallholder regimes, and since 2004 the law has required that only 20 per cent of lands need to be developed in partnerships with smallholders.Footnote 129 Partnerships only pay the smallholder a monthly dividend for oil palm cultivation and such payments are much lower than the yields from independent planting.Footnote 130 Independent smallholders plant oil palm on lands held individually, collectively, purchased from others, or claimed by the state as forest land (which was generally acquired by refusing rights to indigenous farmers). Since 2000 there has been a large increase in smallholders’ cultivation of palm, solely or in combination with other crops, given increasing prices. Farmers may be successful where they have access to roads, mills, credit, and plants, but the threshold for entry remains too high for most former swiddeners. Successful oil palm smallholders (often government employees) tend to acquire more lands from surrounding swiddeners, which increases rural income inequalities.Footnote 131

Historically, government allocations under transmigration and smallholder schemes recruited married householders, but registered lands only in the names of the husband, thereby stripping women of their joint rights under customary law. Recently, plantations have ceased to approach conjugal units as recruits, instead hiring a small core workforce of single young men, while recruiting women as temporary employees. Women’s land rights are no longer secure in cases of divorce; men can sell or mortgage lands without their wives’ consent, and take monthly payments directly. To the extent that smallholders have any voice in livelihood conditions, it is through plantation-based co-operatives; however imperfect such institutions,Footnote 132 their exclusion of women denies them any voice in plantation life.Footnote 133

In regions where swiddens are most intact, women want to add palm oil cultivation to their other crops to avoid releasing lands to outsiders and to retain them for future generations. Lack of roads, capital, and planting material, however, ensures that smallholding is primarily for local elites. The more lands are dominated by smallholder monocropping, the more limited other farmers’ crop choices become and the more nutrition declines. Landlessness is worst for those closest to the plantation core that have lost access to most if not all subsistence resources, often transmigrants who relinquished customary lands in the areas from which they came to take advantage of plantation employment. Women, who must anchor households and support children when men migrate, face the direst situations, often becoming the casual day laborers of plantation economies who face the greatest health risks.

The historical trajectory toward impoverishment that Li describes for one area in West Kalimantan is cause for alarm and will potentially recur on other land frontiers in Indonesia. Two possible futures for oil palm development remain: the continued expansion of government-supported monocropped corporate plantations and the promotion of independent oil palm smallholdings as part of mixed agroforestry systems, supported by many UN organizations, social movements, and NGOs. Only independent oil palm smallholdings are likely to achieve environmental and social justice certification, particularly given ongoing conflicts over corporate enclosures. Just 10 per cent of palm oil in Indonesia can be certified by the Roundtable on Sustainable Palm Oil (RSPO),Footnote 134 which sets very minimal conditions. Smallholders will require greater organization and the capacity to develop local institutions, but only they will be able to meet “standards for sustainable, equitable, and socially responsible oil palm development.”Footnote 135 The rights and livelihoods of both women and children are at stake. With reports of forced and child labor on plantations increasing in Indonesia, Malaysia, and Papua New Guinea,Footnote 136 new means of certifying conditions of oil palm production that do protect biocultural diversity and women’s access to livelihood resources are essential.

##### 4Future Landscapes for MICOs
The term “conflict palm oil” brings consumers’ attention to their own complicity in Asian conflicts, because palm oil is ubiquitous in manufactured household food products such as cookies, instant noodles, and potato chips. There are no consumer markets in the world in which everyday goods do not contain this oil.Footnote 137 The conditions of palm oil plantation have attracted international attention; activists pressure the largest purchasers in the global food industry to adopt more responsible practices. As a consequence:

[I]n the last two years, more than twenty of the world’s largest consumer brands and palm oil traders have announced new palm oil procurement commitments, which are intended to eliminate sourcing from growers associated with on-going deforestation, climate pollution, and human rights abuses … Working with allies from around the world, Rainforest Action Network (RAN) is exposing the supply chains that link Conflict Palm Oil to the foods Americans are sold, focusing on a group of large corporate palm oil end-users we call the Snack Food 20.Footnote 138

The Snack Food 20 could fundamentally transform palm oil production by supply-chain mapping and monitoring, developing procurement policies for the protection of rainforests and peatlands, respecting the rights of communities to give or withhold FPIC to land development, insisting that plantation lands be acquired only from those who hold title, respecting workers’ rights, eliminating child labor, banning burning and reducing greenhouse emissions, including smallholders in supply chains, and practicing equitable benefit sharing.Footnote 139 Given the growing conflicts between companies and communities and the increasingly dire ecological crisis fuelled by palm oil intensification, third-party verification of compliance is urgently needed.

Many companies surpassed the inadequate standards of the RSPO, committing to ambitious deadlines for cutting suppliers trafficking conflict palm oil by the end of 2015 (which were largely unrealized). When Kit Kat bars were clearly linked to rainforest destruction in Indonesia in 2010, Nestlé began verifying that its sources were not associated with destruction of high conservation value and high-carbon stock forests. Far less has been done to protect labor rights. Unilever recognized that it had a palm oil problem after Dove personal care products were similarly exposed in 2008, but its 2013 commitment allegedly lacked “both clear requirements and a deadline for suppliers to end destruction of rainforests, peatlands and abuse of human and labour rights in all operations.”Footnote 140 Some corporations have released stronger commitments since 2013, while others, such as Hormel Foods and Kraft Heinz Company, still inadequately pressure suppliers; PepsiCo could play a vital role in transforming the worst conditions in Indonesia and Malaysia.Footnote 141

Ultimately, environmentalists want a moratorium on the clearance of forests and development of peatlands, halting further expansion until comprehensive assessments identify the conservation and climate change values of these regions. Others seek to ascertain whether indigenous peoples and local communities are fully consenting to palm oil development on their customary lands, and to ensure protection of their water sources, food systems, and livelihoods.Footnote 142 Certification regimes need to find means of identifying suppliers operating plantations on lands acquired through coercion. The transformation of global palm oil supply chains will be a massive undertaking, in which corporations must assume new forms of transnational governance. Through such chains, nearly all consumers are linked to Asian indigenous peoples and become complicit in their dispossession. Even if some of the proposed certifications are developed and implemented, new MICOs must be forged to meet environmental and human rights objectives.

Contemporary struggles around private standards and certifications for goods have become much more conscious of their capacity to represent interests, uphold power relations, provide representation, and engender voice.Footnote 143 Interest in the institutional dimensions of value chains has put new emphasis upon how local actors engage them and shape their structures, processes, values, and outcomes.Footnote 144 Increasingly, labor, food safety, and agricultural practice standards are converging, with workers and small producers recognized as active participants in tackling social and environmental problems. The United Nations Research Institute for Sustainable Development, for example, has focused on Social and Solidarity Economy approaches to production and exchange, which share explicit economic and social objectives:

[T]hey reconnect economic activity with ethical values and social justice, aim to satisfy human needs, build resilience, expand human capabilities, empower women, foster workplace democracy, and/or promote ways of living, producing and governing that are more caring of both people and the environment.Footnote 145

This new model addresses sustainability and labor issues at a landscape or industry level.Footnote 146 It develops and influences standards rooted in the capacity of workers and smallholders to articulate their own needs in a variety of forums, public and private, building multi-scalar alliances that create pressures for change, while engaging external actors as brokers and facilitators to help communities realize social and economic aspirations. Another key shift is the recognition that global value chains operate within territorial institutional dynamics. Creating change involves engaging key actors to work collaboratively across a sector on multiple issues, moving beyond farm-level interventions to landscape and industry-wide initiatives.Footnote 147

These systems support negotiations with companies, improving the bargaining power of specific communities and enabling grievances to be addressed. In some cases this has led to a redistribution of benefits towards local communities, requiring companies to obtain FPIC, or pay royalties for locally extracted resources. These systems can therefore provide recognition of stakeholders’ rights, and a capacity to have their concerns heard. As in fair trade, enclaves of coproduction emerge where coordinated joint efforts between companies, NGOs and/or State actors come together – as developmental interventions – to generate relatively inclusive smallholder outcomes.Footnote 148

Such private regulatory vehicles are likely to be ineffective in the absence of public regulatory standards, because they attempt to redistribute benefits in a way that conflicts with the local constellations of power and interest reflected in public policies. Few would argue that forms of certification will substitute for recognition of indigenous title; critics suggest that certifying products emerging from regions characterized by land conflicts ratifies bad policies and weakens customary rights claims. Certification may redistribute benefits but doesn’t provide public accountability; it may extend “the extraction of resources without conferring effective forms of redress or recognition on groups claiming resource rights.”Footnote 149 In the absence of community rights, companies have enormous bargaining power and communities often settle for what they can get. Oil palm certification, for example, continues to be dominated by industry, does not apply throughout the whole value chain, and finds no demand in large consumer and manufacturing markets such as China and India. Such certifications do, however, publicize local conditions and provide opportunities for new forms of political pressure toward these ends.

Gender equity is increasingly considered in mapping value chains that follow plantation crops.Footnote 150 Proponents of certifications to enhance social justice insist that the entire value chain must be considered if equities are to be secured,Footnote 151 which must include employment conditions, too often overlooked in fair trade justifications and in MICOs more generally. Certifications must address conditions of both formal and informal employment as well as the impact of conditions of production upon women’s reproductive work.Footnote 152 In regions where development has devolved to municipal authorities, old plantation industries such as tea (which have both a female labor force and a female consumer base) have been receptive to new certifications.Footnote 153

It is unlikely that MICOs will develop in a fashion that is more equitable to small producers, more sensitive to gender relations, or more attuned to biocultural diversity without collective organization, greater differentiation amongst marked products, and considerable transnational support.Footnote 154 More relational forms of institutional support need to be developed in process-based approaches to GIs, to avoid them simply becoming forms of geographical branding.Footnote 155 Although it is often assumed that such supports must come from states, a number of initiatives indicate that transnational relationships between organized civil society groups may fulfill similar functions. Self-determined forms of certification link producers and consumers in transnational networks of solidarity. Many small-scale producer co-operatives have withdrawn from Fair Trade USA, for example, because producers get little input into standards of certification that don’t consider the circumstances of their lives.Footnote 156 A new Small Producers’ Symbol (Sı´mbolo de los Pequen˜os Productores – SPP) certification system under the Latin American Fair Trade network began certifying groups in 2011, using standards for production created by small producers attempting to address their everyday socio-economic issues; “in assessing standards, the SPP attempts to create direct relations and dignified living through dialogue – articulated as an economy of trust.”Footnote 157 Significantly, geographer Lindsay Naylor argues that this MICO “creates new ways of participating in economic activities and performing economic identities that are focused on place-based ways of living” and suggests a geographical basis for such indications.Footnote 158

Initiatives to counter gender discrimination and to forge networks of female solidarity may be driven by producers and workers as well as by consumers.Footnote 159 Café Femenino, for example, is a Fair Trade coffee brand developed in the Andean foothills of Northern Peru, under which multiple capacity-building gender empowerment projects are clustered.Footnote 160 Members of a female-owned co-operative grow the coffee on lands owned by women, which supports community development initiatives in health, literacy, transportation, and youth employment. Use of the Café Femenino mark accrues an extra two cents a pound for the women and the same amount again for the community foundation.Footnote 161 Profits are also distributed to a women’s shelter and crisis foundation, as well as women’s hospitals and a breast cancer research foundation in Canadian consumer communities.Footnote 162 The ethical aspect of the added value that this MICO creates is deliberately extended through the entire supply chain. The economic benefits have encouraged families to put more land in women’s names, securing greater economic independence and more equity in local gendered divisions of labor.

Another prospect is provided by alternative food networks, wherein civil society groups mobilize “to vindicate the cultural value of food in terms of taste, its conditions of production and its ecological and cultural dimensions as part of the landscape that supports the economy of the smallholder family.”Footnote 163 They promote local vernacular economies and self-governance through voluntary certifications. Largely involving producers and consumers in close proximity, such initiatives centrally involve women as farmers, mothers, food providers, and monitors of family nutrition and health who are concerned with agrochemicals, genetic modification, and labor conditions to create relationships of trust between producers and consumers in processes of food governance that are more democratic than those provided by third-party certifications.Footnote 164 Alternative food networks often involve female smallholders engaged in multicropping and the preservation of native plant varieties and are dominated by women who understand the integral relationship between agriculture, territory, and food. They offer intriguing possibilities for translation and adaptation in Asian contexts.

There is also hope that “GI production systems based on well-managed extractive activities [can be used to] promote the conservation of natural vegetation and forested areas with benefits to ecosystem and landscape conservation,”Footnote 165 and biocultural diversity treated as “an asset that can be developed through GI differentiation.”Footnote 166 For example, forest biologists, agricultural scientists, and ecologists argue that a landscape with a reputation as a well-managed sustainable environment rich in biodiversity is one that can support a GI for a production system that maintains biodiversity.Footnote 167 Such “green GIs” are most successful when they are initiated by local producers, give biodiversity objectives primacy, and provide specifications for their use that prioritize local environmental practices.Footnote 168 Nonetheless, it is doubtful that benefits will be realized in countries where institutions for supply-chain governance are weak, trends toward agroindustrialization are already established, and there is little state support for local organizations or community governance.Footnote 169 Again, new forms of support and collaboration will be essential.

One final set of values that might inform new initiatives for developing MICOs emerges from the growing recognition of biocultural rights. Norms linking biodiversity maintenance and TEK protection have been evolving under the auspices of the CBD since 1992. In countries where the indigenous status of minority ethnic groups is precarious, unacknowledged, or refused, the relationship between “traditional” peoples, local communities, and natural environments is recognized through an acknowledged interrelationship between biological and cultural diversity. Biocultural diversity has emerged as a hybrid good to be pursued in support of the livelihood resources, identities, and political interests of local communitiesFootnote 170 alongside political principles of FPIC that fulfill state obligations to “take into consideration indigenous and local communities’ customary laws, community protocols and procedures when accessing TK associated with genetic resources.”Footnote 171

Biocultural community protocols are legal vehicles that indigenous peoples use in environmental and biodiversity negotiations to regulate the interface between international legal instruments and the locally held collective heritage resources that internationally ground indigenous rights.Footnote 172 Many social movements and UN bodies embrace these principles, but the prospect of marking goods and services as indicating places of origin that comply with these norms is only beginning to be explored. Means to verify compliance with the FPIC of indigenous peoples (which in many cases will be based on customary or “living law”) and to certify and communicate such compliance are still being devised.Footnote 173 The International Institute for Environment and Development (IIED) Report considering “Intellectual Property Tools for Products Based on Biocultural Heritage” suggests that some types of GIs might be used by associations of small producers to recognize and support group rights; used appropriately and controlled by local communities, they can protect traditional methods, support sustainable development, and might be further developed to mark products “derived from the collective biocultural heritage of indigenous people.Footnote 174

Alejandro Argumedo argues that MICOs, collectively owned and run in accordance with community self-determined rules which correspond with customary law principles, offer real economic and political benefits to indigenous communities. In countries with state-held GIs, collective trademarks are better vehicles for indigenous communities but a new regime of “biocultural heritage indications” that builds upon this legal vehicle might “open up the current IPR [Intellectual Property Rights] system to millions of poor rural communities.”Footnote 175 As this chapter went to press, the IIED, the University of Leeds, and Asociacion ANDES (Peru) were widely consulting experts on the best means to develop a biocultural heritage (BCH) indication regime for marking products and services.Footnote 176

##### 5 Conclusion

In this journey through tea plantations, oil palm frontiers, and tribal women’s gardens, we have attempted to illustrate that GIs and other MICOs have largely worked in Asia to hide or obscure racialized conditions of gendered labor. They have done little to illuminate the hidden and unappreciated work of conservation and biocultural regeneration that women do across the region. Nonetheless, MICOs which can be held and governed locally according to living law and rights-based development criteria and certified for new markets have the potential to be shaped in ways that respect and value the work that women do in rural Asia while contributing to the maintenance of those biocultural heritage resources which have traditionally sustained rural communities. New values are emerging for managing supply chains that recognize the environmental and cultural labors of women in ways that support their livelihoods. The adoption and adaptation of such models in Asian contexts should be welcomed and encouraged.

### 5 A Look at the Geneva Act of the Lisbon Agreement: A Missed Opportunity?

Daniel Gervais Footnote *
##### 1 Introduction

In May 2015, a number of World Intellectual Property Organization (WIPO) member states adopted a new Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 1985 (Lisbon Agreement).Footnote 1 A question that surfaced both during the negotiations and since the signing ceremony is whether this new Act will be palatable to countries using a common-law trademark approach for the protection of geographical indications (GIs) instead of the mostly European approach of using a sui generis (non-trademark) system.Footnote 2 This question applies, for example, to several countries involved in the now likely defunct Trans-Pacific Partnership (TPP) Agreement but also in other regional trade arrangements including the draft Regional Comprehensive Economic Partnership (RCEP).Footnote 3

GIs matter on several levels. They have deep roots in the terroir, a French word designed to encapsulate a blend of land, tradition, and human know-how.Footnote 4 In the Geneva Act context, this raises a question, namely whether this notion of terroir is commensurate with modern international trade rules, at least as trade is practiced outside of Europe (in say, RCEP countries).Footnote 5 Terroir matters to many producers and many countries, and not just in Europe. In parts of the “Old World,” however, it is not an exaggeration to say that some countries link terroir to national identity.Footnote 6 Many so-called “New World” producers of wines, spirits, and agricultural products see things differently. While they also recognize the economic value of identifying the geographic origin for certain products – for example, in the United States (US), Florida orange juice, Idaho potatoes, Napa Valley wines, and Vidalia onions – they are concerned about possible restrictions on the use of terms they consider generic (meaning terms that, in their view, primarily describe a type of product, not its geographic origin).Footnote 7

Several developing country producers have similar concerns about the protection of foreign terms—often belonging to producers in former colonial powers -- that have become, or may become, generic in their country or region. Their situation is not uniform, however. Those who live in countries rich in traditional knowledge (many of which are developing countries), for instance, see the expansion of GI protection as a way to repair historical wrongs and, more broadly, as a way to de-Westernize intellectual property rules, which some consider systematically discriminatory because they favor Western methods of marketing and production and Western goods.Footnote 8 Several developing nations consider GIs as a way of protecting and globally marketing their rural and traditional products at a higher price, which they assert would lead to “development from within,” that is, “an alternative development strategy that prioritizes local autonomy and broad, community-wide development goals.”Footnote 9

GIs affect prices, though not for every product and not in a uniform way. There are examples that illustrate the capture of additional rents due to the (consumers’) perception of higher quality associated with certain geographical origins. For some products, this ties into – and may sometimes be confused with – “fair trade” labels and certification processes concerning the sourcing of an increasingly wide range of products, many of which come from the developing world (e.g., coffee, tea, cocoa, etc.).Footnote 10 Recent research also suggests that GI protection impacts food consumption patterns and can lead to shifts in agricultural models.Footnote 11

GIs tend to focus production on a nation’s comparative advantage in making a product whose origin infuses it with a higher market value.Footnote 12 As such, GIs may have a deep environmental significance and form an increasingly relevant part of agricultural and food policy.Footnote 13 It is not surprising, therefore, that the debate surrounding the protection of GIs has captured the attention of a number of consumer groups, many of which insist on proper labeling of products, notably to indicate their origin. Their insistence stems not only from a desire to buy more locally produced products and to reduce the carbon footprint of their consumption patterns but also from the “quality assurance” factorFootnote 14 associated with a number of GIs.Footnote 15

How does this translate into the Lisbon Agreement context? As of this writing (March 2017), no common-law jurisdiction is party to the Lisbon Agreement.Footnote 16 There are a number of reasons that explain this lack of enthusiasm. As this chapter elaborates in the following pages, many common-law jurisdictions use trademarks, collective marks, and certification marks to protect geographic symbols and names. This has a number of both normative and administrative implications, including use requirements, possible loss or diminution of right due to acquiescence and abandonment or genericness, and the payment of maintenance fees, to mention just the main effects. These characteristics define the gap that needs to be bridged between the Lisbon system and the common law. This chapter’s purpose is to explore whether the Geneva Act succeeded in building this bridge.

To do so, the chapter proceeds as follows. The first part briefly describes the functioning of the Lisbon system, and the second part compares the Lisbon system with the common-law system of protection for geographic identifiers as marks.

##### 2 Geographical Indications under the Lisbon Agreement
###### 2.1Terminological Issues

Article 1 of the 1958 Lisbon Agreement requires member states to protect appellations of origin “as such.”Footnote 17 The Geneva Act of the Lisbon Agreement on Appellation of Origin and Geographical Indications 2015 (Geneva Act)Footnote 18 is more flexible on this front. In addition to its reference to the 1958 notion of “appellations of origin,” the Geneva Act also refers to “geographical indications,” bringing it in line with the language used in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).Footnote 19

The Geneva Act applies to

any indication protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another indication known as referring to such area, which identifies a good as originating in that geographical area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.Footnote 20

The TRIPS Agreement defines geographical indications as

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.Footnote 21

Incorporating the language contained in the TRIPS Agreement, and thus common to all WTO members in the Geneva Act, is an improvement. While the Geneva Act obligates members to protect both registered appellations of origin and geographical indications on their territory, it also dropped the “as such” language and further provides that each “Contracting Party shall be free to choose the type of legislation under which it establishes the protection stipulated in this Act.”Footnote 22 Dropping the “as such” language may have solved the terminological quandary that countries not using the notion of “appellation of origin” in their legal system may have had with the 1958 text.

###### 2.2Level of Protection Issues

The 1958 Lisbon Agreement obligates countries to provide protection of geographical indications against “any usurpation or imitation, even if the true origin of the product is indicated or if the appellation is used in translated form or accompanied by terms such as ‘kind,’ ‘type,’ ‘make,’ ‘imitation,’ or the like.”Footnote 23 “Usurpation” is not a term commonly used in international intellectual property laws and treaties.Footnote 24 The travauxFootnote 25 define usurpation as the “illicit adoption” of an appellation and provide “counterfeiting” as a possible synonym.Footnote 26 The travaux also make clear that it is up to each country to decide the remedies that should be available.Footnote 27 It is difficult to reconcile this language with the TRIPS Agreement because that Agreement provides for two different levels of protection of geographical indications.

Under Article 22.2(a) of the TRIPS Agreement, which may apply to products of any kind (thus to agricultural and nonagricultural products), a potential right-holder must provide the means for interested parties to prevent the use of designations that might mislead the public, a level of protection that resembles trademark protection. A higher level of protection for wines and spirits was agreed upon in the TRIPS Agreement. Article 23 of the TRIPS Agreement prohibits use of a GI on wine or spirits originating outside the region specified by the GI.Footnote 28 The prohibition stands even if the true origin of the wine or spirits is indicated, a translation is used, or the indication is “accompanied by expressions such as ‘kind,’ ‘type,’ ‘style,’ ‘imitation’ or the like.”Footnote 29 There is almost what looks like a presumption that the public might be misled – or that the competing use constitutes an act of unfair competition – when dealing with GIs on wines and spirits. This higher level of protection for wines and spirits is closer to the standard of the 1958 Lisbon Agreement, and probably even more so now because the Geneva Act replaced the right against “usurpation” with a three-legged right.

Article 11 of the Geneva Act provides a right that combines elements of Articles 16.3 (protection of well-known marks) and 22.2 (protection of geographical indications) of the TRIPS Agreement. Specifically, member countries must provide legal means to prevent any unauthorized use of the GI in three situations: (1) goods of the same kind as those to which the GI applies (including use in translated form or accompanied by terms such as “style,” “kind,” “type,” “make,” “imitation,” “method,” “as produced in,” “like,” “similar,” or the like); (2) goods or services not of the same kind, if use would suggest a connection expanded to include, “where applicable,” a right against uses liable “to impair or dilute in an unfair manner, or take unfair advantage of, that reputation” of the GI; and (3) “any other practice liable to mislead consumers as to the true origin, provenance or nature of the goods,” including use amounting to imitation of the protected appellation or indication.Footnote 30

This is a “TRIPS plus” outcome both because the higher level of protection in the TRIPS Agreement (without the need to show deception or confusion) is limited to wines and spiritsFootnote 31 and because the TRIPS Agreement does not provide protection against “imitation.” The Geneva Act is a de facto expansion by (and for) Lisbon members of GI protection to products other than wines and spirits – a measure sought by a number of WTO members, especially in the developing world. The Lisbon standard does not require confusion. This level of protection, unlike trademark law, requires no evaluation of the local consumer even (or especially) in a market where a GI protected under Lisbon may be neither known (by a significant proportion of the relevant public) nor used.

Finally, under the Lisbon system, one could argue that registration creates a worldwide public notice of the claim leading, normatively and/or doctrinally, to a presumption of confusion of sorts, requiring a ban on the use of the GI even with words such as “like” or “style.” The TRIPS Agreement provision on a possible notification and registration system does not go that far in that it does not specify the legal effect of registration in the system, the establishment of which must still be negotiated.

###### 2.3Registration-Related Issues

The 1958 Lisbon Agreement established a multilateral registry for appellations of origin.Footnote 32 The Geneva Act made several improvements to the administrative operation of the register and generally modernized the system of registration of both geographical indications and appellations of origin. Without offering an exhaustive list of such improvements, the Geneva Act made the role of national offices much clearer. Applicants may be required to pay per-country fees and fees to use the protected indication, but not maintenance fees to the member country in which they seek protection.Footnote 33

The Geneva Act also introduced a clearer system to refuse new GIs (and then withdraw refusals in whole or in part) and a new system allowing interested parties to “request the Competent Authority to notify a refusal in respect of the international registration.”Footnote 34 In contrast, the text of the 1958 Lisbon Agreement did not mention grounds for refusal of a GI submitted by another Contracting Party and had no detailed provision on withdrawals.Footnote 35 Under the 1958 Lisbon Agreement, a court or other competent authority in the country where protection is claimed could invalidate an appellation.Footnote 36 The Geneva Act more or less maintains this system but includes much clearer rules and a specific process.Footnote 37

The topic of fees was a major issue during the Diplomatic Conference. Under the system based upon the 1958 Lisbon Agreement, applicants had to pay a single fee once to WIPO and their application would be deemed valid (subject to refusal by individual members) for essentially forever in all Lisbon member states where it was not initially refused or later invalidated.Footnote 38 This fee (which was 500 Swiss francs or approximately US $525, but doubled as of January 1, 2016) is paid to, and retained by, WIPO. There is no country designation and no “per-country” fee, unlike, say, the Madrid system for trademarks, the Hague system for designs, or the Patent Cooperation Treaty (PCT).Footnote 39 No renewal fee is ever required.Footnote 40 This is administratively different from the situation with several other IP rights, and also arguably incompatible with the current practice of common-law jurisdictions that protect GIs as trademarks. Trademarks can be considered abandoned and canceled for nonuse, and a registration, renewal, or maintenance fee is typically payable.Footnote 41 Under the Geneva Act, country designation was introduced and per-country fees are now possible for the initial registration and for use of the indication, but not maintenance fees.Footnote 42 This is likely to become a major bone of contention within WIPO member states, due to the disagreements over the protection of GIs and the limited membership to the Lisbon Agreement, and the Geneva Act, among WIPO members. ###### 2.4Genericness Issues The 1958 Lisbon Agreement was fairly flexible in several respects but not on genericide. Genericide is the loss of an appellation when it becomes generic, and is thus unable to function as an indication of geographic origin in a given market.Footnote 43 The language of the 1958 Lisbon Agreement prevents invalidation for genericness in the country where protection is claimed, unless the appellation has become generic in its country of origin.Footnote 44 This is a rare mandatory application of lex originis in international intellectual property.Footnote 45 A country joining the Lisbon system has one year to determine whether it will refuse to protect any previously registered appellations.Footnote 46 For appellations registered after a country has joined, there is a twelve-month period to make such a decision. After that period has lapsed, however, it becomes much more complicated to refuse protection. An issue might surface in common-law jurisdictions here, especially if the owner of a Lisbon GI does nothing while the GI is used (with his knowledge but without his consent) either by a competitor or generically by several users. It is a well-established principle of international intellectual property that the law of the country of protection (lex loci protectionis) would typically govern issues of genericide. Thus, a court or other competent authority determines the validity of a copyright, trademark, or patent in its own jurisdiction. The Paris Convention for the Protection of Industrial Property (Paris Convention)Footnote 47 makes it clear that this does not directly affect the same trademark or a patent on the same invention in other jurisdictions – a principle known as the independence of patents and trademarks.Footnote 48 In the case of infringement, the law of the country where protection is claimed (lex loci delicti) typically applies.Footnote 49 It would be strange indeed if a court could not find a patent or mark invalid unless it had been found invalid in the inventor’s or trademark owner’s country of origin. Yet that was, and still is, the system under the 1958 Lisbon Agreement. Implementing this provision functionally requires a sui generis system because countries that protect GIs using trademarks assess genericness in their territory and not in the mark’s country of origin. In previous scholarship, I have suggested that the Lisbon system should eliminate this obstacle to make it possible for countries protecting GIs under trademark systems to join. Unfortunately, the Geneva Act, while it uses language that differs from the 1958 Lisbon Agreement text, essentially maintains a version of the lex originis regime, especially in its Article 12, which reads: “Subject to the provisions of this Act, registered appellations of origin and registered geographical indications cannot be considered to have become generic in a Contracting Party.”Footnote 50 In sum, as already noted the Geneva Act, like the 1958 Lisbon Agreement, allows a Lisbon member to reject a GI within twelve months of registration if it is generic in their territory.Footnote 51 It will also allow its members to maintain coexistence of a GI and a trademark and protect prior trademark rights. However, if the GI gets protection under the Lisbon system and later becomes generic in a Lisbon Agreement member state, for example, because of inaction or even acquiescing by the holder of the GI, then it is far from clear under either the 1958 Lisbon Agreement or the Geneva Act how that Lisbon member could find this GI generic if the GI is not generic in its country of origin.Footnote 52 If that is so, then there is at least one irreconcilable difference between the Lisbon Agreement and the common law. ###### 2.5Conflicts with Prior Trademarks and Generic Terms The 1958 Lisbon Agreement allows its members to adopt or continue to use one of three approaches in managing conflicts between trademarks and GIs (however those are protected under national law): (1) a “first in time, first in right” approach; (2) a “coexistence approach” (that is, a GI and trademark with similar legal effect); or (3) a “GI superiority approach,” under which the GI wins the conflict, except perhaps where the previous trademark is considered well known.Footnote 53 “First in time, first in right” usually is understood to mean first in the territory of the jurisdiction concerned.Footnote 54 One could see a degree of irony in the case of GIs because GIs very often have been in use for decades or more before the registration of a trademark that would defeat the use of such GIs in a country other than the country of origin.Footnote 55 Yet, as a matter of trademark law, the analysis focuses on the domestic market and is largely a question of the domestic consumer’s perception – although this perception may include knowledge gained through advertising of a famous mark not in use or not yet widely used in the territory concerned.Footnote 56 The Geneva Act thus allows, but does not mandate, a country party to it to apply the “first in time, first in right” principle in resolving GI–trademark disputes.Footnote 57 It is worth recalling the four main features that apply to WTO members under the TRIPS Agreement. First, a member of the World Trade Organization (WTO) must refuse or invalidate the registration of a trademark that contains or consists of a geographical indication if (1) the goods do not originate in the territory indicated; and (2) use of the indication in the trademark for such goods in the territory of the “member” concerned is of such a nature as to mislead the public as to the true place of origin.Footnote 58 Second, for GIs used in connection with wines and spirits, however, deception (misleading the public as to the true place of origin) does not need to be present.Footnote 59 Third, Article 24.5 of the TRIPS Agreement then allows a WTO member to protect those who were using or applied for registration of a trademark (or were “grandfathered”) in the WTO member concerned either before the TRIPS Agreement became applicable in the WTO member concerned or before the indication in question was protected in its country of origin.Footnote 60 Fourth, Article 24.6 of the TRIPS Agreement provides that WTO members may decide not to protect a geographical indication used in connection with foreign goods or servicesFootnote 61 when the relevant indication “is identical with the term customary in common language as the common name for such goods or services in the territory of that Member.”Footnote 62 In EC–Trademarks and Geographical Indications I, a WTO dispute-settlement panel explained that the coexistence of a protected indication and a trademark can be considered, under certain circumstances a limited exception justifiable under Article 17 of the TRIPS Agreement.Footnote 63 In other words, the coexistence of a protected indication and a nonfamous trademark is a permitted exception to trademark rights.Footnote 64 In sum, the TRIPS Agreement allows – but does not mandate – continued application of “first in time, first in right” by each WTO member.Footnote 65 The Geneva Act is clearer on this point than the 1958 Lisbon Agreement in that it provides specific conflict rules, which mostly allow for prior trademark rights to be protected, and, like the text of the 1958 Lisbon Agreement, allows GIs to be rejected for genericness in a member country at the time that country joins the system. Because the genericide prohibition was maintained in the Geneva Act, it would make it difficult, however, to reconcile the new Act with “first in time, first in right” in the case of a GI that was used but becomes generic as a geographic term in a country, if the owner of the GI then tries to prevent its use, or the use of a similar term, by a third party as a trademark or even otherwise (e.g. a descriptive use). A country joining the Geneva Act may thus limit its option to use to its full extent the exception regime under the TRIPS Agreement as interpreted in the WTO dispute-settlement process.Footnote 66 ##### 3Common-Law Geographical Indications ###### 3.1Geographical Indications and a Free Market Economy Attaching an intangible yet measurable (that is, a higher price due to the intellectual property rent) value to the identification of the geographic origin of a product seems to postulate the existence of a correlative, measurable difference in actual quality, that is, an objectively quantifiable difference between products of different origin but similar composition – say, a wine produced from Pinot Noir grapes in Napa Valley, New Zealand, or Bourgogne (Burgundy).Footnote 67 One could posit that this measurable difference – assuming that one can measure it – lies in natural factors such as soil and climate. This now brings us to the terroir. Indeed, a system of protection for denominations of geographic origin emphasizes the cluster of factors traditionally amalgamated under the term terroir: tradition, know-how, and a link between product and land.Footnote 68 Terroir is used as a marketing tool to extract additional rents. A consumer who does not share the history and culture of the French, Italian, or Spanish terroir may not easily identify with the conventions and practices that were used to define the quality of a product (say, a red wine) at its point of origin. That same consumer can nonetheless attribute a higher value or quality to a product for a different set of reasons. Even if the higher price resulting from the linkage between a product and its origin is arguably or even demonstrably irrational – say, because no measurable objective quality differentiates the product and its non-GI equivalent – that is not a fatal argument against GI protection: trademarks also sometimes perform an “irrational” yet well-accepted function in guiding consumer behavior.Footnote 69 Put differently, and more concretely, using a consumer’s belief that brie cheese will be not just different but better because it was produced in MeauxFootnote 70 (France), as opposed to in an unknown location in some industrial plant or even in a known cheese producing location (such as the US state of Wisconsin), is not incompatible with the principles of a “free” market economy.Footnote 71 ###### 3.2Geographical Indications as Marks Geographical indications, like trademarks, depend on reputation and associated goodwill.Footnote 72 To paraphrase Professor Dev Gangjee, they share the same epistemological backcloth.Footnote 73 Reputation is an element mentioned in both the Lisbon Agreement and the TRIPS Agreement.Footnote 74 “Normal” trademarks, collective marks, and certification marks can be used as symbols of or ways to suggest geographic origin. A feature of common law–based trademark law is the so-called “first in time, first in right” approach, according to which the first user in a given territory will have senior rights. Using the US system as an exemplar of such an approach, a geographic designation of origin must not clash with a preexisting trademark if it is to be protected under a trademark system.Footnote 75 Similarly, a geographic term that is generic in the US cannot acquire trademark status.Footnote 76 A term that is merely descriptive can be protected as a mark once it acquires secondary meaning.Footnote 77 In the case of a geographic certification mark, there is a collective goodwill linked to a region or locality. This notion of collective goodwill emerged in the United Kingdom in the so-called “Drinks” cases.Footnote 78 Collective goodwill is goodwill shared by a group of producers. Any producer part of the group may file a claim in civil courts to protect the goodwill – without having to show control over or agreement of the collective. US courts have also recognized that goodwill can be shared but they have generally taken a less liberal approach on the right of action by individual users. They have given the holder of a certification mark more control over its use and enforcement. For example, in State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., the Ninth Circuit found that selling genuine Idaho potatoes using the name IDAHO constituted counterfeiting of the certification mark IDAHO for potatoes because the mark owner had not had the opportunity to exercise quality control.Footnote 79 The owner of the mark “acts as the representative of the mark users.”Footnote 80 Hence, as a matter of trademark law, the owner of a certification mark – not the State – controls the certification standards. Examples of US geographic certification marks include FAMOUS IDAHO POTATOES, FAMOUS POTATOES GROWN IN IDAHO, GROWN IN IDAHO IDAHO POTATOES, and PREMIUM PACKED IDAHO POTATOES for (unsurprisingly) Idaho potatoes; PARMIGIANO-REGGIANO, ROQUEFORT, STILTON, and REAL CALIFORNIA for cheese; PARMA for ham; DARJEELING for tea; WASHINGTON for apples; and THE FLORIDA SUNSHINE TREE for citrus.Footnote 81 Certification marks have also been used in a more typical “Lisbon” context: booze. The three US “Cognac” cases serve as milestones on the road to GI protection via trademark law. The first case dates back to 1944.Footnote 82 The case involved applications for the trademarks COLOGNAC and CALOGNAC for brandy. Oppositions to those applications were filed by a “genuine” (French) Cognac maker.Footnote 83 The oppositions were not made on the basis of preexisting registrations for other marks (such as COGNAC). Instead they were made under the terms of the statute in force at the time, which allowed certain parties (this would emerge in the case, as we shall see) to oppose the use of descriptors as marks if those descriptors would confuse or mislead the consumer. Reversing both the Examiner of Trade-Mark Interferences – who had not recognized the opposer’s right to oppose the applications – and the Commissioner of Trademarks, the Court of Customs and Patent Appeals confirmed the opposer’s standing and agreed with the opposer.Footnote 84 The Court stated the following in a passage that has the unmistakable aroma of an “Old World” GI perspective: Cognac is a name applied to a type of brandy distilled from wines made from grapes grown in a limited territorial region of France, often referred to as the Cognac district, the boundaries of which are defined by French law … there is a certain quality in the soil of the region which gives to the grapes there grown a particular character or flavor, which enters into the brandy made from them, and that that quality of soil is not found elsewhere in France, nor, it is claimed, in any other part of the world. It is recognized as a superior brandy.Footnote 85 The second case, four decades later, dealt with applications for two similar derivatives of Cognac, namely COLOGNAC and CALOGNAC.Footnote 86 The case evidently bears strong resemblance to the previous one, but here the opposer was not an individual producer of Cognac but rather an entity responsible under French law for defending the word Cognac.Footnote 87 Between the two cases, Congress had adopted the 1946 Trademark (Lanham) Act, which contained a specific provision for certification marks.Footnote 88 Indeed, one of the Board’s first steps in this second case was to note that the statute defined certification marks and included marks used to denote a geographic origin.Footnote 89 The 1946 statute also contained the now familiar prohibition of the registration of a mark that, “when applied to the goods of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them.”Footnote 90 The Board’s approach was consonant with trademark law principles, putting the focus squarely on consumer deception: [I]f a mark is the name of a place known generally to the public, purchasers who encounter goods bearing the mark would think that the goods originate in that place [i.e., purchasers would make a “goods-place association” …], [if] the goods do not come from the named place, and the deception is material to the purchasing decision, the mark is deceptive under Section 2(a); if the deception is not material to the purchasing decision, the mark is primarily geographically deceptively misdescriptive under Section 2(e)(2) of the Act.Footnote 91 In the third and final case, decided a decade later, the opposer, the French Institut National des Appellations d’Origine, was also a “GI defending entity” responsible for defending several protected wine and spirit appellations of origin in France.Footnote 92 The Board applied Section 2(d) of the Lanham Act, which deals with the likelihood of confusion with a preexisting mark, and decided that the test was the same as for other marks: There is nothing in the language of Section 2(d) which mandates or warrants application of one level of likelihood of confusion analysis … in cases where the plaintiff’s mark is a trademark or service mark, but a different and more limited likelihood of confusion analysis in cases where the plaintiff’s mark is a certification mark.Footnote 93 In other words, a showing of deception was unnecessary. Certification marks should be treated for purposes of an infringement analysis in the same way as ordinary trademarks. While the opinion parallels the previous case, it is worth noting that the Board also recognized protection of the COGNAC mark under labeling regulations.Footnote 94 Overall, the picture that emerges from the Cognac cases and others shows a willingness to recognize collective goodwill in the form of (common-law) certification marks.Footnote 95 The application of trademark law by US courts and other authorities suggests that common law can protect symbols of geographic origin used in trade beyond the US sui generis mechanism used for alcohol labels. Unfortunately, for the future of the Lisbon system, using trademark law to protect GIs implies the ability to remove a mark not used by its owner from the register. More generally, trademark law in common law jurisdictions implies (1) a requirement of use to register, (2) the payment of renewal or maintenance fees, and (3) a level of protection tied to the existence of a likelihood of confusion except for famous or well-known marks.Footnote 96 None of these are allowed, at least explicitly, under the Geneva Act even though they were raised on several occasions by delegations at the Diplomatic Conference. The Geneva Act does allow member countries to impose examination and use fees, however, as well as declarations of intention to use a GI.Footnote 97 ###### 3.3The Future of the Lisbon System As of the date of the Diplomatic Conference that adopted the Geneva Act of the Lisbon Agreement in May 2015, the so-called Special Union (of Lisbon members) had twenty-eight member states.Footnote 98 Many of the members will likely join the Geneva Act, which is also open to intergovernmental organizations such as the European Union and Organisation Africaine de la Propriété Intellectuelle (OAPI).Footnote 99 Even if several OAPI members join Lisbon, how much they will use it (that is, how many GIs they will actually register) is unclear. Indeed, some OAPI members are already members of the “old” Agreement and have not used it much.Footnote 100 North African countries such as Morocco and Tunisia, together with Algeria, which is already party to the “old” (1958/1967) Act, may also join the Geneva Act membership. A few Latin American countries might do so as well, adding to the existing five members of the old Agreement (Costa Rica, Cuba, Mexico, Nicaragua, and Peru).Footnote 101 More importantly, European membership will likely broaden to include most or all EU members (including Germany, who is not currently a Lisbon member) and possibly Moldova and Russia, among others. This means a potential of approximately fifty to fifty-five member states. If the European Union were to join backed by all its member states, it would potentially have a majority vote in the Special Union (which it could exercise as a single vote on behalf of all twenty-eight EU members).Footnote 102 The denouement of the Geneva Act story may be complicated, however. Despite the strength of the opposition manifested at the closing plenary by a number of common-law jurisdictions, the art of trade negotiations is such that anything is possible. Smaller common-law jurisdictions might find it harder to resist EU trade pressure to join Lisbon. Some of the nations that negotiated the moribund TPP recently introduced sui generis GI legislation that may make it easier for them to agree to join Lisbon, for example, as part of a trade deal with the European Union.Footnote 103 The list of bilateral EU trade agreements with a GI focus might soon include India. Then, multinational companies, including those based in the common law world, that use terms they consider generic or descriptive on their products may find Lisbon members in the path of their trade transactions with other nations, including members of the Association of Southeast Asian Nations (ASEAN), where the cost of protecting foreign GIs (and implementation of the Geneva Act) could be low, and may bring substantial beneficiaries in trade dealings with the European Union.Footnote 104 Even so, a question that remains is what the European Union will be prepared to concede to get ASEAN countries to adhere to the Geneva Act. More importantly, normative countermeasures, such as definitions of prior rights or genericness standards incompatible with the Lisbon standard, may emerge. The TPP text was not easy to reconcile with Article 12 of the Geneva Act (providing for genericide only in the country of origin of the GI): it provides that a GI may become generic in each country that protects it, leading to its potential invalidation in such country.Footnote 105 The apparent TPP failure probably pushes this back to diplomatic oubliettes. More generally, adequate heed should be paid to the renewed emphasis on the role of certification marks to protect GIs which has surfaced in various fora. ##### 4 Conclusion The adoption of the Geneva Act of the Lisbon Agreement was a clear chance to update the Lisbon Agreement to reconcile the Lisbon system on two fronts: doctrinally, with the common law; and administratively, by allowing countries that protect GIs under trademark law (often as certification marks) to continue to do so as Lisbon members. That did not happen, however, at least not clearly. The absence of consensus – indeed, the deep divide – at the Diplomatic Conference and the statedFootnote 106 incompatibility of the Geneva Act with trademark-based GI systems are unlikely to prove productive in the short- to medium term for GI holders, authorized users of GIs, users of generic denominations, or consumers. The bridge between the Lisbon system and the common law has not been built by the Geneva Act. Some useful foundations were laid, but much remains to be done. The bridge, if it is ever built, will not be the result of a normative encounter. It will be made of trade bricks. ## Footnotes #### 1 Geographical Indications between Trade, Development, Culture, and Marketing: Framing a Fair(er) System of Protection in the Global Economy? * Lee Kong Chian Fellow, Visiting Professor and Deputy Director, Applied Research Centre for Intellectual Assets and the Law in Asia, Singapore Management University School of Law; Professor of Law, Texas A&M University School of Law. This chapter builds on my previous publications in this area. 1 Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S 299 [hereinafter TRIPS]; World Trade Organization, Ministerial Declaration of November 14, 2001, WTO Doc. WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002) [hereinafter Doha Declaration]. 2 See infra Section 2. 3 World Intellectual Property Organization (WIPO), Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications and Regulations under the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, WIPO Doc. LI/DC/19 (May 20, 2015) [hereinafter, Geneva Act]. For the original version of the Lisbon Agreement, see Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, art. 2(1), October 31, 1958, as revised July 14, 2967, 923 U.N.T.S. 205 [hereinafter 1958 Lisbon Agreement]. 4 See infra Section 3. 6 Even though GI registries are not necessary to implement sui generis GI protection, these registries are seen today as formal tools to catalog existing GIs and promote awareness among producers and consumers. This point is elaborated, in particular, in the chapter authored by Naazima Kamardeen on Sri Lanka, in this volume. 7 Irene Calboli, Of Markets, Culture, and Terroir: The Unique Economic and Culture-Related Benefits of Geographical Indications of Origin, in International Intellectual Property: A Handbook of Contemporary Research (Daniel J. Gervais ed., 2015) [hereinafter Calboli, The Benefits of GIs]; Tomer Broude, Taking “Trade and Culture” Seriously: Geographical Indications and Cultural Protection in WTO Law, 26 U. Pa. J. Int’l. Econ. L. 623, 656–57, 674–79 (2005). 8 Irene Calboli, In Territorio Veritas: Bringing Geographical Coherence in the Definition of Geographical Indications of Origin under TRIPS, 6(1) WIPO J. 57 (2014) [hereinafter Calboli, In Territorio Veritas]. 9 1958 Lisbon Agreement, supra Footnote note 3, art. 2(1). 10 TRIPS, supra Footnote note 1, art. 22(1). 11 See infra Section 4. 12 Geneva Act, supra Footnote note 3, art. 2(1)(i). 13 See Calboli, In Territorio Veritas, supra Footnote note 8, at 63–66. 14 TRIPS, supra Footnote note 1, art. 22(2). 15 This conclusion is the result of an insightful conversation with Ms. Natalie Corthésy, Ph.D. candidate at Queen Mary University in London and lecturer at the University of West Indies at Mona, in December 2015. Ms. Corthésy’s research focuses on the intellectual property protection of countries’ names. She already supported and suggested a similar conclusion. Our conversation focused, in particular, on Jamaica, and the rights of Jamaican producers in being recognized for their agricultural products in the international market. I am grateful to Ms. Corthésy for highlighting the problems that developing countries’ farmers face and the lack of academic discussion on this issue so far. 16 See, e.g., the contributions in Dev Gangjee, Research Handbook in Intellectual Property and Geographical Indications (2016); see also the special issue of the International Review of Intellectual Property and Competition Law, 46(7) Int’l Rev. Intell. Prop. & Competition L. (2015). 17 This position is well summarized in the steady opposition to GIs by the representatives of the Consortium for Common Food Names in the United States. See, e.g., Threats to Common Food Names More Widespread in EU Trade Deals and Other Geographical Indications Policies, Consortium for Common Food Names (March 19, 2015), www.commonfoodnames.com/threats-to-common-food-names-more-widespread-in-eu-trade-deals-and-other-geographical-indications-policies/ (stating the actions taken in several countries to protect common food names such as “parmesan,” “feta,” and “bologna”) [hereinafter Consortium for Common Food Names]. 18 To date, the “wine” part of this war has been largely resolved with ad hoc wine agreements between Western countries. See Agreement Between the European Community and the United States of America on Trade in Wine, E.C.-U.S., March 10, 2006, 2006 O.J. (L 87) 2 (EC), http://ttb.gov/agreements/us-eu-wine-agreement.pdf. The EU has concluded similar “Wine Agreements,” inter alia, with Canada, Australia, and New Zealand. See Irene Calboli, Time to Say Local Cheese and Smile at Geographical Indications? International Trade and Local Development in the United States, 53 Hous. L. Rev. 373, 396–97 (2015) [hereinafter Calboli, Say Local Cheese]. 19 TRIPS, supra Footnote note 1, art. 23. 20 Calboli, Say Local Cheese, supra Footnote note 18, at 384. 21 An updated list of national laws on GIs can be found in the database of WIPO. See WIPO Lex, www.wipo.int/wipolex/en/ (last visited August 22, 2016). 22 See discussion infra Section 3. 23 See, e.g., Delphine Marie-Vivien, A Comparative Analysis of GIs for Handicrafts: The Link to Origin in Culture as Well as Nature? in Research Handbook in Intellectual Property and Geographical Indications 292 (Dev Gangjee ed., 2016). 25 For one of the most detailed reconstructions of the history and development of GI protection, see Dev Gangjee, Relocating the Law of Geographical Indications 9396 (2012) [hereinafter Gangjee, Relocating GIs]. 26 Footnote Id. at 93–94. 27 Footnote Id. at 94–95. 28 Loi du 1er Août 1905 sur les Fraudes et Falsífications en Matière des Produits ou de Services, Journal Officiel de la République Française [J.O.] [Official Gazette of France], August 5, 1905, p. 4813. 29 Loi du 6 Mai 1919 Relative à la Protection des Appelations d’Origine, Journal Officiel de la République Française [J.O.] [Official Gazette of France], May 8, 1919, p. 4726. 30 Décret-loi du 30 Juillet 1935 Relatif à la Défense du Marché du Vins et au Régime Economique de l’alcool, Journal Officiel de la République Française [J.O.] [Official Gazette of France], July 31, 1935, p. 8314 (creating a system based on controlled appellations of origin). 31 Gangjee, Relocating GIs, supra Footnote note 25, at 83. 32 Paris Convention for the Protection of Industrial Property, March 20, 1883, as revised July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305, arts. 10(1) and 10bis [hereinafter Paris Convention], forbidding “false, fictitious, or deceptive trade names,” and the use of any misleading indications (but not specifically geographical indications). 33 Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods, April 14, 1891, 828 U.N.T.S. 163 [hereinafter Madrid Agreement]. 34 Madrid Agreement, supra Footnote note 33, art. 2. 35 As of March 2017, only twenty-eight States are contracting parties to the 1958 Lisbon Agreement, and twenty-seven States are signatories of the 1967 Stockholm Revisions. See Contracting Parties, Madrid Agreement, World Intell. Prop. Org., www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=3. Only thirty-six States are contracting parties of the Madrid Agreement. See Contracting Parties, Lisbon Agreement and Contracting Parties, Stockholm Act, World Intell. Prop. Org., www.wipo.int/treaties/en/registration/lisbon/. 36 As of March 2017, only fifteen States have signed the Geneva Act. See Contracting Parties, Geneva Act, World Intell. Prop. Org., www.wipo.int/treaties/en/registration/lisbon/. 37 TRIPS, supra Footnote note 1, arts. 22–24. 38 For the alphabetical list of the countries that are members of the WTO, which also indicates the date in which the countries joined the WTO, see Members and Observers, World Trade Org., www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm. 39 For a background to the current debate at the WTO, and the respective proposal by various groups of countries, see TRIPS: Geographical Indications, Background and the Current Situation, World Trade Org., www.wto.org/english/tratop_e/trips_e/gi_background_e.htm#wines_spirits. 40 TRIPS, supra Footnote note 1, art. 22(2). 41 Footnote Id. art. 23. 42 TRIPS, supra Footnote note 1, art. 24(4)–(5). The multinational controversies over several names such as Feta, Fontina, Asiago, and Parmesan as well as the litigation for the rights to the GI (or mark) “Budweiser” across several countries are some of the most famous examples of potential national divergences, and in turn (legal) conflict, regarding the relationship between GIs and, respectively, generic names and registered marks. See Consortium for Common Food Names, supra Footnote note 17; Christopher Heath, The Budweiser Cases: A Brewing Conflict, in Landmark Intellectual Property Cases and Their Legacy 181 (Christopher Heath & Anselm Kamperman Sanders eds., 2011). 43 TRIPS, supra Footnote note 1, arts. 23(4), 24(1). 44 Footnote Id. art. 23(4). 45 Footnote Id. art. 24(1). 46 See Doha Declaration, supra Footnote note 1. For a detailed analysis of the Doha Declaration, see TRIPs: Issues, Geographical Indications, World Trade Org., http://wto.org/english/tratop_e/trips_e/gi_e.htm (last visited August 22, 2016). 47 See Doha Declaration, supra Footnote note 1, 18. 48 For more details about the WTO negotiations in Cancun, see TRIPS: Geographical Indications, Background and the Current Situation, World Trade Org., www.wto.org/english/tratop_e/trips_e/gi_background_e.htm (last visited August 22, 2016). 49 See World Trade Organization, Article 27.3b, Traditional Knowledge, Biodiversity, WTO Doc. TN/C/W/61 (April 21, 2011), www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm. Status of Play – Delegations continued to voice the divergent views that have characterized this debate, with no convergence evident on the specific question of extension of Article 23 coverage: some Members continued to argue for extension of Article 23 protection to all products; others maintained that this was undesirable and created unreasonable burdens. 50 See Comprehensive Trade and Economic Agreement, Can.-EU, Consolidated CETA Text, ch. 22, art. 7, Intellectual Property, September 26, 2014, http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf [hereinafter CETA, Intellectual Property Chapter]. See Calboli, Say Local Cheese, supra Footnote note 18, at 408–18 (discussing the EU’s strategy as part of CETA and suggesting a compromising solution for the TTIP negotiations). 51 For details on the FTAs concluded by the EU and other countries, or currently under negotiation, see European Commission’s Trade Policy Portal, Eur. Comm’n, http://ec.europa.eu/trade/policy/accessing-markets/intellectual-property/geographical-indications/ (last visited August 22, 2016). 53 See Geographical Indications (GI), EU-China Trade Project (II), www.euctp.org/index.php/en/agriculture-food-safety/geographical-indications-gi.html (last visited August 22, 2016). 54 See Trans-Pacific Partnership Agreement, ch. 18, arts. 18.30–36 Intellectual Property, October 5, 2015, https://ustr.gov/sites/default/files/TPP-Final-Text-Intellectual-Property.pdf [hereinafter TPP]. When the TPP was finalized, the TPP members were Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. But the United States withdrew from the TPP in early 2017. See infra Footnote n.56. 55 Footnote Id. art. 18.36. Several TPP members – Vietnam, Malaysia, and Singapore – have concluded, or are discussing, FTAs with the EU. 56 See Office of the United States Trade Representative (USTR), The United States Officially Withdraws from the Transpacific-Partnership, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/january/US-Withdraws-From-TPP. (last visited 1 February 2017). 57 Tokutei Norin Suisan Butsu to no Meisho no Hogo ni Kansuru Horitsu [Act for the Protection of the Names of Designated Agricultural, Forestry and Fishery Products and Foodstuffs], June 25, 2014, available at, www.maff.go.jp/j/shokusan/gi_act/outline/pdf/doc4.pdf. (last visited August 22, 2016). 58 The Geographical Indication (Registration and Protection) Act of 2013 (Bangl.). 59 Geographical Indications Act, No. 19 of 2014 (Sing.), not yet in force. When this Act enters into force, it will replace the Geographical Indications Act (Cap 117B, 1999 rev edn.) (Sing.). 60 See Law No. 20 of October 27, 2016, concerning Trade Marks and Geographical Indications amending Law No. 15of 2001 concerning Trade Marks (Indonesia). 61 The Law on Geographical Indications of Goods (“GI Law”) of Cambodia entered into force on January 20, 2014. See Protected Geographical Indications in Cambodia, Agence Francaise de Developpement, www.afd.fr/webdav/shared/PORTAILS/PAYS/CAMBODGE_2/PDF/Brochure%20GI%20-%20Cambodia%20-%20EN.pdf (last visited August 22, 2016). 62 Intellectual Property Act, No. 36 of 2003, § 160 (Sri Lanka); Consumer Affairs Authority Act, No.9 of 2003, § 30 (Sri Lanka). 63 Wine Australia Corporation Act of 1980; Australian Grape and Wine Authority Act of 2013. 64 Fair Trading Act of 1986 (N. Z.). 65 See William van Caenegem, Jen A. Cleary & Peter Drahos, Provenance of Australian Food Products: Is There a Place for Geographical Indications? (2015), available at https://rirdc.infoservices.com.au/items/15–060; William Van Caenegem, Jen A. Cleary, & Peter Drahos, Pride and Profit: Geographical Indications as Regional Development Tools in Australia, 16 J. Econ. & Soc. Pol’y (2014), available at http://epubs.scu.edu.au/jesp/vol16/iss1/5/. 66 In 2015, the European Commission published a report evaluating the opportunity to extend GI protection for nonagricultural products. See Results of the Public Consultation and Public Conference on Making the Most Out of Europe’s Traditional Know-How: A Possible Extension of Geographical Indication Protection of the European Union to Non-Agricultural Products, at 3637, COM (2014) 469 final (January 20, 2015), http://ec.europa.eu/docsroom/documents/10565/attachments/1/translations/en/renditions/pdf. This report followed a study commissioned by the EU Commission. See Insight Consulting et al., Study on Geographical Indications Protection for Non-Agricultural Products in the Internal Market (2013), http://ec.europa.eu/internal_market/indprop/docs/geo-indications/130322_geo-indications-non-agri-study_en.pdf. 67 On September 22, 2015, the European Parliament considered the protection of nonagricultural GIs and called “on the Commission to propose without delay a legislative proposal with the aim of establishing a single European system of protection of geographical indications for non-agricultural products.” Comm. on Legal Affairs, Report on the Possible Extension of Geographical Indication Protection of the European Union to Non-Agricultural Products, EU Doc. A8-0259/2015, at 6/26, ¶ 3 (2015), www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8-2015–0259+0+DOC+PDF+V0//EN. 68 See Geographical Indications Act, No. 19 of 2014 (Sing.). See also EU-Singapore Free Trade Agreement, EU-Sing., September 20, 2013, http://ec.europa.eu/trade/policy/countries-and-regions/countries/singapore/. 69 Civil Code of Vietnam (1995), art. 786 (Vietnam). In 2015, the EU and Vietnam concluded the EU-Vietnam FTA. See EU-Vietnam Free Trade Agreement: Agreed Text as of January 2016, Eur. Comm’n, February 1, 2016, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437. 70 This is the case of Sri Lanka and Bangladesh, for example, following the adoption of GI protection in India. See the chapters by Naazima Kamardeen and Mahua Zauhr in this volume. 71 See Calboli, The Benefits of GIs, supra Footnote note 7, at 447–52 (summarizing the economic arguments in favor of GI protection); see also Gangjee, Relocating GIs, supra Footnote note 25, at 183 (noting that GIs are protected due to the possibility to “generate improved incomes and tangible benefits for groups of rural or marginalized groups”). See also, e.g., Sarah Bowen, Embedding Local Places in Global Spaces: Geographical Indications as a Territorial Development Strategy, 75 Rural Soc. 209 (2010); Giovanni Belletti & Andrea Marescotti, GI Social and Economic Issues 15 (2006), available at www.origin-food.org/2005/upload/SIN%20-%20WP2%20FinalReport%20DEF.pdf. 72 This is a very important step in the process of GI registration, which traditionally sees the involvement of the state, as a certifying public authority, and the selection of private, yet independent, bodies for quality control. For example, the quality control body for the GI Parmigiano Reggiano is the Organismo di Controllo Qualità Produzioni Regolamentate. See Organismo di Controllo Qualità Produzioni Regolamentate [Organism for Quality Control of Regulated Productions], www.ocqpr.it/ (last visited August 22, 2016). The quality control body for the GI Prosciutto di Parma is Istituto Parma Qualità. See Istituto Parma Qualità [Institute Parma Quality], www.parmaqualita.it/ (last visited August 22, 2016). 73 For example, all European GIs for agricultural products and food stuff are registered in the online database “DOOR.” See DOOR, Denomination Information, Eur. Comm’n, http://ec.europa.eu/agriculture/quality/door/list.html (last visited August 22, 2016). Moreover, the websites of many registered PDOs and PGIs indicate the specifications and quality control related to the products. 74 See Gangjee, Relocating GIs, supra Footnote note 25, at 266 (“Since consumers are willing to pay more for such goods, this encourages farmers to invest in making the transition from producing un-differentiated bulk commodities, towards producing higher quality niche products”). See also Michelle Agdomar, Removing the Greek from Feta and Adding Korbel to Champagne: The Paradox of Geographical Indications in International Law, 18 Fordham Intell. Prop. Medi & Ent. L.J. 541, 586–87 (2008) (noting that granting property rights through geographical indications allows producers to control the quality of their goods in order to build consumer confidence). 75 See, e.g., Trong Binh Vu & Duc Huan Dao, Geographical Indication and Appellation of Origin in Vietnam: Reality, Policy, and Perspective, Institute of Policy and Strategy for Agriculture and Rural Development – MISPA Project (2006), available at www.fao.org/fileadmin/templates/olq/documents/documents/GI%20and%20AO%20in%20Vietnam.pdf [hereinafter, Binh & Huan, GI and Appellation of Origin]; see also Chuthaporn Ngokkuken & Ulrike Grote, Challenges and Opportunities for Protecting Geographical Indications in Thailand, 19 Asia-Pac. Dev. J. 93 (2012). 76 See Calboli, The Benefits of GIs, supra Footnote note 7, at 435; Gangjee, Relocating GIs, supra Footnote note 25, at 183 (GIs are protected because they “must actually provide useful information to consumers in an established market”). 77 Agdomar, supra Footnote note 74, at 586–87 (noting that GIs constitute methods of improving asymmetrical information as they signal quality and expertise and enable consumers to distinguish between premium-quality products and low-end products). 78 Footnote Id. at 587–88. 79 See Calboli, The Benefits of GIs, supra Footnote note 7, at 447–52. 80 See Michael McCarthy & John Phillips, Italy’s Toxic Waste Crisis, the Mafia – and the Scandal of Europe’s Mozzarella, The Independent (March 22, 2008), www.independent.co.uk/news/world/europe/italys-toxic-waste-crisis-the-mafia-ndash-and-the-scandal-of-europes-mozzarella-799289.html. 81 In this respect, see Calboli, The Benefits of GIs, supra Footnote note 7, at 439; see also, e.g., Toshiyuki Kono, Geographical Indication and Intangible Cultural Heritage, in Le Indicazioni di Qualità degli Alimenti 289 (Benedetta Ubertazzi & Esther Muñiz Espada eds., 2009); Tomer Broude, A Diet Too Far? Intangible Cultural Heritage, Cultural Diversity, and Culinary Practices, in Diversity in Intellectual Property: Identities, Interests, and Intersections 472 (Irene Calboli & Srividhya Ragavan eds., 2015). 82 Convention for the Safeguarding of the Intangible Cultural Heritage, October 17, 2003, in force April 20, 2006, 2368 U.N.T.S. 1, available at http://unesdoc.unesco.org/images/0013/001325/132540e.pdf. 83 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, October 20, 2005, 2440 U.N.T.S. 346 available at http://en.unesco.org/creativity/sites/creativity/files/passeport-convention2005-web2.pdf. 84 See, e.g., Teshager W. Dagne, Harnessing the Development Potential of Geographical Indications for Traditional Knowledge-based Agricultural Products, 5 J. Intell. Prop. L & Prac. 441, 447 (2010). 85 See Calboli, The Benefits of GIs, supra Footnote note 7, at 439; Dev Gangjee, Geographical Indications and Cultural Heritage, 4 WIPO J. 92, 99 (2012). 86 Areté, Study on Assessing the added Value of PDO/PGI (2013), http://ec.europa.eu/agriculture/external-studies/2013/added-value-pdo-pgi/exec-sum_en.pdf. 87 See Bowen, supra Footnote note 71. 88 See, e.g. Jennifer Barnette, Geographic Indications as a Tool to Promote Sustainability? Café de Colombia and Tequila Compared, 39 Ecology L. Q. 102 (2012). 89 For a detailed discussion on the “Phu Quoc” registration process, see Binh & Huan, GI and Appellation of Origin, supra Footnote note 75. 90 Calboli, In Territorio Veritas, supra Footnote note 8, at 62–63. 91 1958 Lisbon Agreement, supra Footnote note 3, art. 2(1) (emphasis added). 92 Footnote Id. art. 2(2). 93 TRIPS, supra Footnote note 1, art. 22(1). The definition in TRIPS was certainly influenced by WIPO’s definition of GIs as “sign[s] used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that origin.” World Intellectual Property Organization (WIPO), What is a Geographical Indication? www.wipo.int/geo_indications/en/ (last visited August 22, 2016). 94 Council Regulation 2081/92 of July 14, 1992 on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs, 1992 O.J. (L 208) 1, [hereinafter Regulation 2081/92]. 95 Footnote Id. art. 2(2)(b). 96 Footnote Id. art. 2(2)(a). 97 Footnote Id. art. 2(4). The provision put the following conditions: “provided that: the production area of the raw materials is limited; special conditions for the production of the raw materials exist, and there are inspection arrangements to ensure that those conditions are adhered to.” 98 Regulation 1151/2012 of the European Parliament and of the Council of November 21, 2012, on Quality Schemes for Agricultural Products and Foodstuff, 2012 O.J. (L 343) 1, art. 5(1)–(3). 99 Council Regulation 479/2008 of April 29, 2008, on the Common Organization of the Market in Wine, Amending Regulations 1493/1999, 1782/2003, 1290/2005, 3/2008 and Repealing Regulations (EEC) No 2392/86 and 1493/1999, 2008 O.J. (L 148) 1, art. 34(1)(a)–(b). In addition, art. 31(1)(c) includes in the definition of “designation” certain “traditional used names” provided that “(a) designate a wine; (b) refer to a geographical name; (c) meet the requirements referred to in paragraph 1(a)(i) to (iv) [of Article 34(1)(a)]; (d) undergo the [relevant] procedure conferring protection on designations of origin and geographical indications.” 100 Regulation 110/2008, of the European Parliament and of the Council of January 15, 2008, on the Definition, Description, Presentation, Labeling and the Protection of Geographical Indications of Spirits Drinks and Repealing Council Regulation (EEC) 1576/89, 2008 O.J. (L 39) 16, art. 15. 101 Geneva Act, supra Footnote note 3, art. 2. 102 Footnote Id. art. 2(1)(i). 103 Footnote Id. art. 2(1)(ii). 104 Footnote Id. art. 2(1)(i). 105 Footnote Id. art. 2(1)(ii). 106 Footnote Id. art. 2(2). 107 Geneva Act, supra Footnote note 3, art. 2(2). This option could resolve several ongoing disputes between neighboring countries over the origin of certain products, such as Basmati rice or Emmentaler cheese. See Basmati, Registration No. 4076214 (India); Emmentaler Tradition Switzerland, Registration No. 583659 (S.Z.); Allgäuer Emmentaler, Dossier No. DE/PDO/0017/0459 (Germany); Emmental de Savoie, Dossier No. FR/PGI/ 0017/0179 (France). 108 See Justin Hughes, Champagne, Feta, and Bourbon: The Spirited Debate About Geographical Indications, 58 Hastings L.J. 299, 345 (2006). 109 See Calboli, In Territorio Veritas, supra Footnote note 8, at 66. 110 Footnote Id. at 63–66. 115 TRIPS, supra Footnote note 1, art. 22(2). 116 For example, the specification of the PDO “Prosciutto di Parma” permits that the pigs used for the final products, the Parma ham, originate from outside the Parma region, precisely from eleven different regions of Italy. Notably, “[t]he raw material comes from a geographical area that is larger than the production area, and which includes the administrative districts of the following Italian Regions: Emilia-Romagna, Veneto, Lombardy, Piedmont, Molise, Umbria, Tuscany, Marche, Abruzzo and Lazio (Italy).” See Specification and Dossier Pursuant to Article 4 of Council Regulation 2081/92 of July 14, 1992, on the Protection of Geographical Indications and designations of Origin for Agricultural Products and Foodstuffs, 1992 O.J. (L 208) 6, www.prosciuttodiparma.com/pdf/en_UK/disciplinare.28.11.2013.en.pdf. 117 See, e.g., Annette Kur, Quibbling Siblings: Comments to Dev Gangjee’s Presentation, 82 Chi.-Kent. L. Rev. 1317, 1320–321 (2007) (noting “[a]s most of us are laymen in the field, we have to trust the competent authorities to do their job correctly” and that “the informing effects that protected GIs have on consumers resulting from the fact that the products bear, in addition to the GI itself, the indications ‘PDO’ …, ‘PGI’ …, or their equivalents in other languages-appear modest at best”). 118 Ammini Ramachandran, Indian Cocoa Grown for Swiss Chocolate, Zester Daily (June 21, 2012), http://zesterdaily.com/agriculture/indian-cocoa-grown-for-swiss-chocolate/ (stating that Swiss Chocolat Noir is made from cocoa from Kerala, India). Kaspar Meuli, Facing Cocoa Shortage, Swiss Chocolate Makes Aim to Boost African Production, WorldCrunch (January 2, 2012), http://www.worldcrunch.com/business-finance/facing-cocoa-shortage-swiss-chocolate-makers-aim-to-boost-african-production (stating that “[m]ore than half of the cacao beans transformed into chocolate in Switzerland come from [Ghana]”). 119 An analysis of the GIs that are registered in ASEAN indicates that a large part of these GIs comprises of agricultural products, such as pineapples, rice, sugar coffee, tea, etc. See ASEAN GI Database, www.asean-gidatabase.org (last visited August 22, 2016). 120 Areté, supra Footnote note 86, at 6 (this study was commissioned by the EU Commission and proves, with data, that “[a]s for agricultural raw materials, price premiums for raw materials for GI production were very limited or absent in the majority of cases. Significant price premiums for GI production over standard production were observed in less than one third of the cases”). 121 See supra Footnote note 118. #### 2 From Geography to History: Geographical Indications and the Reputational Link * Associate Professor, Faculty of Law, University of Oxford. The author is grateful to the editors of this volume and the contributors for their comments on the initial draft of this chapter. 1 See Daniel W. Gade, Tradition, Territory, and Terroir in French Viniculture: Cassis, France, and Appellation Contrôlée, 94(4) Annals Ass’n Am. Geographers 848 (2004); Cornelis Van Leeuwen & Gerard Seguin, The Concept of Terroir in Viticulture, 17 J. Wine Res. 1 (2006); Marion Demossier, Beyond Terroir: Territorial Construction, Hegemonic Discourses, and French Wine Culture, 17 J. Royal Anthropological Inst. 685 (2011). 2 Elizabeth Barham, ‘Translating Terroir’ Revisited: The Global Challenge of French AOC Labeling, in Research Handbook on Intellectual Property and Geographical Indications 57 (Dev Gangjee ed., 2016). 3 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Rounds vol. 31, 33 I.L.M. 1125, 1197 (1994) [hereinafter TRIPS]. 4 For the origins of this link and its justificatory functions in GI regimes, see Dev Gangjee, Relocating the Law of Geographical Indications (2012) [hereinafter Gangjee, Relocating GIs]. 5 WIPO, Geographical Indications, at 32, WIPO Doc. SCT/10/4 (23 March 2003). 6 On the institutional mission of the Institut National de l’Origine et de la Qualité (INAO), see Delphine Marie-Vivien, Laurence Bérard, Jean-Pierre Boutonnet & François Casabianca, Are French Geographical Indications Losing Their Soul? Analyzing Recent Developments in the Governance of the Link to the Origin in France, World Development (forthcoming 2016). 7 INAO, Guide du demandeur d’une appellation d’origine protégée (AOP) ou d’une indication géographique protégée (IGP) à l’exception des vins et des boissons spiritueuses (April 2015) 23 (‘ La démonstration d’une interaction causale entre les spécificités de l’aire et les spécificités du produit est attendue’) (April 2015). 8 Irene Calboli, In Territorio Veritas: Bringing Geographical Coherence in the Definition of Geographical Indications of Origin under TRIPS, 6(1) WIPO J. 57 (2014); Irene Calboli, Geographical Indications of Origin at the Crossroads of Local Development, Consumer Protection and Marketing Strategies, 46 IIC 760 (2015); Irene Calboli, Of Markets, Culture and Terroir: The Unique Economic and Culture-Related Benefits of Geographical Indications of Origin, in International Intellectual Property Law: A Handbook of Contemporary Research 433 (Daniel Gervais ed., 2015). 9 See infra Section 3. 10 Dev Gangjee, Proving Provenance? Geographical Indications Certification and Its Ambiguities, World Development (forthcoming 2017). 11 In the European Union (EU), a modest seven-page guide for GI applicants exists. See European Commission, Guide to Applicants: How to Complete the Single Document, http://ec.europa.eu/agriculture/quality/schemes/guides/guide-for-applicants_en.pdf (last visited 23 April 2016). In contrast, the guidelines for registry examiners for the unitary Community Trade Mark (the EU Trade Mark from 2016) run into thousands of pages. See European Union Intellectual Property Office, Trademark Guidelines, https://oami.europa.eu/ohimportal/en/trade-mark-guidelines (last visited 23 March 2016). 12 Delphine Marie-Vivien, The Protection of Geographical Indications for Handicrafts: How to Apply the Concepts of Natural and Human Factors to All Products, 4 WIPO J. 191 (2013); Delphine Marie-Vivien, A Comparative Analysis of GIs for Handicrafts: The Link to Origin in Culture as Well as Nature? in Research Handbook on Intellectual Property and Geographical Indications 292 (Dev Gangjee ed., 2016). 13 A review by the WTO of the existing legislation in 2003 confirmed that the notion of GI, as defined by TRIPS, formed the basis for several national definitions. See WTO, Review under Article 24.2 of the Application of the Provisions of the Section of the TRIPS Agreement on Geographical Indications, at 42, WTO Doc. IP/C/W/253/Rev.1 (24 November 2003) (‘many but not all of the definitions include reputation as a specific characteristic related to the geographical origin of a product that might justify protection of the [Indication of Geographical Origin] designating that product’). 14 World Trade Organization (WTO), Chairman’s Report, TRIPS Council Special Session: Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits, WTO Doc. TN/IP/18, at 15 (9 June 2008). 15 See WTO, Chairman’s Report, Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits: Report to the Trade Negotiations Committee, WTO Doc. TN/IP/21, at B.2 (21 April 2011). 16 Footnote Id. at E.2. 17 WIPO, Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications and Regulations under the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, WIPO Doc. LI/DC/19 (20 May 2015) [hereafter Geneva Act]. 18 See respectively Geneva Act, supra Footnote note 17, at art. 15(1)(b); Regulations under the Geneva Act, supra Footnote note 17, at 9(2)(iii), 10(1)(ii); Regulations under the Geneva Act, supra Footnote note 17, at 13(1)(v). 19 WIPO, Notes on the Basic Proposal for the New Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, at 19.01, WIPO Doc. LI/DC/5 (22 December 2014). 20 Footnote Id. at 15.03. 21 The definition and difference between protected denominations of origin (PDOs) and protected geographical indications (PGIs) are elaborated upon in Part III. 22 See European Commission, Agriculture and Rural Development, http://ec.europa.eu/agriculture/quality/door/list.html (last visited 21 April 2016). 23 See Council Regulation 1151/2012, art. 5, 2012 O.J. (L323/1). 24 Formerly the European Court of Justice (ECJ). 25 This was emphatically confirmed by the CJEU Grand Chamber. See Case C-478/07 Budějovický Budvar National Corporation v. Rudolf Ammersin GmbH (C-478/07) [2009] E.C.R. I-7721; 2009 E.T.M.R. 65, at 106–29 (Budweiser II). 26 WIPO, Document SCT/6/3 Rev. on Geographical Indications: Historical Background, Nature of Rights, Existing Systems for Protection and Obtaining Protection in Other Countries, at 16, WIPO Doc. SCT/8/4 (2 April 2002). 27 This was argued before the UK Court of Appeals. See Fage UK Ltd. v. Chobani UK Ltd. [2014] EWCA (Civ) 5. The issue was whether ‘Greek Yoghurt’ could potentially be registered as a GI at the EU level as a PGI. If it could, in principle, then there would be no other form of protection available at the national level. The tort of passing off had already been established at trial and the appellant, Chobani, attempted to escape its consequences by arguing, ultimately unsuccessfully, that Greek Yoghurt had a PGI-type reputation and would qualify in principle under the harmonized EU regime, so passing off protection was pre-empted at the national level. The author must declare that he acted as a consultant for the respondent, Fage, in this matter. 28 Case C-35/13, Kraft Foods Italia v. Associazione fra produttori per la tutela del ‘Salame Felino’ and Others, 2014 [Unreported] at 28–29. 29 Fage UK Ltd. v. Chobani UK Ltd. [2013] EWHC (Ch) 630 [115]. The issue of whether passing off was pre-empted was only raised on appeal, see [2014] EWCA Civ 5. 30 Commission Green Paper Making the Most Out of Europe’s Traditional Know-How: A Possible Extension of Geographical Indication Protection of the European Union to Non-Agricultural Products, COM (2014) 469 final (15 July 2014) [hereinafter Green Paper]. 31 See InSight Consulting et al., Study on Ggeographical Indication Protection for Non-Agricultural Products in the Internal Market Final Report (2013), http://ec.europa.eu/internal_market/indprop/docs/geo-indications/130322_geo-indications-non-agri-study_en.pdf. 32 Green Paper, supra Footnote note 30, at 16–17. 33 Footnote Id. at 18. 34 This transition is comprehensively documented in Chapter 3 of Gangjee, Relocating GIs, supra Footnote note 4; See also Alessandro Stanziani, French Collective Wine Branding in the Nineteenth–Twentieth Centuries, in Research Handbook on Intellectual Property and Geographical Indications 13 (Dev Gangjee ed., 2016). 35 For the origins and competing accounts of terroir, see Laurence Bérard, Terroir and the Sense of Place, in Research Handbook on Intellectual Property and Geographical Indications 72 (Dev Gangjee ed., 2016). 36 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 31 October 1958, as revised 14 July 1967, 923 U.N.T.S. 205. For a comparison between TRIPS and Lisbon definitions, including the approach to reputation, see Daniel Gervais, The Lisbon Agreement’s Misunderstood Potential, 1 WIPO J. 87 (2009). 37 See Herman Cohen Jehoram, Protection of Geographic Denominations of Goods and Services (1980); WIPO, supra Footnote note 26, at 11–17. 38 WIPO International Bureau, Protection against Unfair Competition: Analysis of the Present World Situation 48, 5460 (1994). 39 WIPO, supra Footnote note 26, at 12. 40 See Gangjee, Relocating GIs, supra Footnote note 4, at 115–124; Dev Gangjee, Spanish Champagne: An Unfair Competition Approach to GI Protection, in Intellectual Property at the Edge 105 (Rochelle Cooper Dreyfuss & Jane C. Ginsburg eds., 2014). 41 See Friedrich-Karl Beier & Roland Knaak, The Protection of Direct and Indirect Geographical Indications of Source in Germany and the European Community, 25 Int’l Rev. Intell. Prop. & Competition L. 1, 2 (1994). 42 Geographical designations indicating national territories, but without any objectively verifiable link associated with the territory, could be disguised campaigns to appeal to patriotic buying. For a convenient summary of the free movements backdrop, see Vadim Mantrov, EU Law on Indications of Geographical Origin: Theory and Practice 113118 (2014). 43 Case C-12/74, Commission v. Germany, 1975 E.C.R 181. 44 As required by Weingesetz 1971 [Law on Vine Products] Bundesgesetzblatt I [BGBl] No. 63/1971 and Weingesetz 1971 [Sparkling Wines and Spirits Obtained by Distilling wine] Bundesgesetzblatt I [BGBl] No. 64/1971. 45 Case C-12/74, Commission v. Germany, 1975 E.C.R. 181, at 7. 46 See, e.g., Derrick Wyatt, Free Movement of Goods and Indications of Origin, 38 Mod. L. Rev. 679 (1975); Friedrich-Karl Beier, The Need for Protection of Indications of Source and Appellations of Origin in the Common Market: The Sekt/Weinbrand Decision of the ECJ, 16 Indus. Prop. 152 (1977). 47 Case C-3/91, Exportur SA v. LOR SA and Confiserie du Tech SA, 1992 E.C.R. I-5529. 48 See Convention between the French Republic and the Spanish State on the Protection of Designations of Origin, Indications of Provenance, and Names of Certain Products, 27 June 1973, Journal Officiel de la République Française [J.O.], 18 April 1973, p. 4011. 49 Case C-3/91, Exportur SA v. LOR SA and Confiserie du Tech SA, 1992 E.C.R. I-5529, at 28. 50 Friedrich-Karl Beier, Case Comment: Court of Justice – Case No. C-3/91 ‘Turron’, 25 Int’l Rev. Intell. Prop. & Competition L. 73, 81 (1994). 51 Council Regulation 2081/92 of 14 July 1992, Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs, 1992 O.J. (L 208/1). 52 Footnote Id. at 10. 53 See respectively Council Regulation No 510/2006 of 20 March 2006, Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs, 2006 O.J. (L 93/12) art. 2; Council Regulation No 1151/2012 of 21 November 2012, Quality Schemes for Agricultural Products and Foodstuffs, 2012 O.J. (L 343/1). 54 Marina Kolia, Monopolizing Names of Foodstuffs: The New Legislation, 4 Eur. Intell. Prop. Rev. 333, 333 (1992). 55 Francois Vital, Protection of Geographical Indications: The Approach of the European Union, in Symposium on the International Protection of Geographical Indications (1999). For an excellent general background, see Onno Brouwer, Community Protection of Geographical Indications and Specific Character as a Means of Enhancing Foodstuff Quality, 28 Common Mkt. L. Rev. 615 (1991). 56 See Council Proposal on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs, at 90 SEC (1991) 2415 final (21 January 1991), and as amended by COM (1992) 32 final (18 March 1992). 57 See Opinion of the Socio Economic Committee on the ‘Proposal for a Council Regulation (EEC) on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs’, 1991 O.J. (C 269/62) 1.2. 58 Marina Kolia, Monopolising Names: EEC Proposals on the Protection of Trade Descriptions of Foodstuffs, 14 Eur. Intell. Prop. Rev. 233, 235 (1992). 59 Footnote Id. at 235–36. 60 Paris Convention for the Protection of Industrial Property, opened for signature 20 March 1883, 21 U.S.T. 1583, 828 UNTS 305 (revised at Brussels on 14 December 1900, at Washington on 2 June 1911, at The Hague on 6 November 1925, at London on 2 June 1934, at Lisbon on 31 October 1958, and at Stockholm on 14 July 1967, and as amended on 28 September 1979). 61 WIPO Secretariat, Report Adopted by the Committee of Experts, WIPO Doc. GEO/CE/I/3, at 49 (1 June 1990). 62 For the drafting history of the TRIPS GI provisions, see Gangjee, Relocating GIs, supra Footnote note 4, at 191–236. 63 Proposal for a Council Regulation, supra Footnote note 56, at 9–10. 64 Most recently acknowledged by the negotiators themselves; see Jayashree Watal & Antony Taubman, The Making of the TRIPS Agreement: Personal Insights from the Uruguay Round Negotiations 28, 98, 116, 147, 178, 194, 197 (2015). 65 See Group of Negotiations of Goods (GATT), Synoptic Tables Setting Out Existing International Standards and Proposed Standards and Principles, GATT Doc. MTN.GNG/NG11/W/32/Rev.2, at 6869 (2 February 1990) (The only other proposed definition is a much broader Swiss one, similar to the simple indication of source). 66 The differences between the trademark approach and the appellation approach have been explored in Daniel Gervais, A Cognac after Spanish Champagne? Geographical Indications as Certification Marks, in Intellectual Property at the Edge 105 (Rochelle Cooper Dreyfuss & Jane C. Ginsburg eds., 2014). 67 WIPO Secretariat, The Definition of Geographical Indications, WIPO Doc. SCT/9/4 at 20 (1 October 2002). 68 Gangjee, Relocating GIs, supra Footnote note 4, at 218–20. 69 Irina Kireeva & Bernard O’Connor, Geographical Indications and the TRIPS Agreement: What Protection Is Provided to Geographical Indications in WTO Members? 13 J. World Intell. Prop. 275, 282 (2010). 70 See Staples, http://www.staples.co.uk (last visited 22 April 2016). 71 For US recognition, see 15 U.S.C. § 1052(f); for EU recognition, see Council Directive 2008/95/EC, art. 3(3) 2008 O.J. (L299/25) (A trademark which is non-distinctive to begin with can be registered ‘if, before the date of application for registration and following the use which has been made of it, it has acquired a distinctive character’). 72 See generally Frederick W. Mostert, Famous and Well-Known Marks: An International Analysis (2nd edn., 2004). 73 The US factors, which vary across circuits, are conveniently summarized in Barton Beebe, Trademark Law: An Open-Source Casebook Part I, 4154 (2nd edn., 2015). For the EU, see Cases C-108/97 & 109/97, Windsurfing Chiemsee v. Boots, 1999 E.C.R. I-2779, at 49–51 (acquired distinctiveness); Case C-375/97, General Motors v. Yplon, 1999 E.C.R. I-5421, at 27 (establishing reputation for dilution protection). 74 INAO Guide, supra Footnote note 7; European Commission, supra Footnote note 11, at 6–7; World Intellectual Property Organization (WIPO), Geographical Indications, WIPO Doc. SCT/10/4, at 23–26 (25 March 2003). 75 Footnote Id. at 23. 76 Laurence Bérard & Philippe Marchenay, From Localized Products to Geographical Indications: Awareness and Action 2325 (2008). 77 Footnote Id. at 24–25. 78 The conflict between instrumental accounts drawing selectively on historical materials or taking them out of context (i.e. advocacy) and the more objective approach of professional historians is familiar to legal historians. See e.g., Mathew J. Festa, Applying a Usable Past: The Use of History in Law, 38 Seton Hall L. Rev. 479 (2008); Jonathan Rose, Studying the Past: The Nature and Development of Legal History as an Academic Discipline, 31 J. Legal Hist. 101 (2010). 79 Dossier No. ES/PGI/0005/01218. The description is available at http://ec.europa.eu/agriculture/quality/door/list.html (last visited 2 April 2016). 80 See European Commission, Publication of An Amendment Application Pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on Quality Schemes for Agricultural Products and Foodstuffs (‘Polvorones de Estepa’) 2015 O.J. (C 338/10), at 5 (13 October 2015). 83 Dossier No. LV/PGI/0005/01153. 84 Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on Quality Schemes for Agricultural Products and Foodstuffs (‘Carnikavas nēģi’) [2014] O.J. C 336, p. 27 (26 September 2014) at 5.1–5.3. 85 Bérard & Marchenay, supra Footnote note 76, at 21–22. 86 Bérard, supra Footnote note 35, at 86–87 (‘People construct their spatial spheres of action by setting boundaries, by occupation and by transformation, designating and distinguishing a given place … Localised agri-food production is a part of that process, helping to foster a sense of place through a wealth of specialised products that engage with local society in all sorts of ways and on all sorts of production levels’). 87 Government of India, Geographical Indications Journal Vol. 12, Application Nos. 38, 39, 41 & 42 (1 January 2006) (the author must disclose that he filed an opposition to the application, which was eventually withdrawn). 88 See Reliance Industries Limited, Petroleum Refining & Marketing, www.ril.com/OurBusinesses/PetroleumRefiningAndMarketing.aspx (last visited 23 April 2016). 89 Dossier No. IT/PGI/0005/01067. I am grateful to Andrea Zappalaglio for bringing this controversy to my attention. 90 For an overview, see Linda Brugioni, The Strange Case of the Protection of Piadina Romagnola PGI, in Bird & Bird Food Law Digest (3rd edn., 2015), www.twobirds.com/en/news/articles/2015/global/food-law-digest--3rd-edition--2015/food-law-digest-3rd-edition-2015. 91 As noted in an appeal to the CJEU seeking to cancel the PGI, see Case T-43/15 R, CRM Srl v. Comm’n, 2015 Order of the President of the General Court, at 5. 92 As the specification records: ‘The consolidation over the centuries of this tradition and the specific production techniques were the basis for the birth, in the 1970s, of the small-scale commercial production of “Piadina Romagnola”/“Piada Romagnola” at small outlets (kiosks) for immediate serving. The widespread and visible presence in Romagna of kiosks producing and selling “piadine” for immediate consumption is a characteristic feature of the territory, well-known to locals and tourists alike.’ #### 3 The Limited Promise of Geographical Indications for Farmers in Developing Countries * Honorable William M. Byrne Professor of Law, Loyola Law School, Los Angeles. Copyright © 2016 by the author. Permission is hereby granted for noncommercial reproduction of this chapter in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in the copies. 1 The actual numbers are 43,674 (patents), 8,337 (designs), and 194,216 (trademarks). United Nations Economic Commission for Africa, Innovation, Competition, and Regional Integration: Assessing Regional Integration in Africa VII, Table 6.4 at 110 (2016) [hereinafter UNECA, Innovation, Competition, and Regional Integration]. Information obtained by the report authors from Office of Controller General of Patents, Designs and Trademarks of India, 2012–13. 2 Justin Hughes, Champagne, Feta, and Bourbon: the Spirited Debate about Geographical Indications, 58 Hastings L. J. 299, 301 (2006). A term used not just in jurisdictions that protect GIs through trademark law regimes but also in some scholarly commentary. See, e.g. Alessandro Stanziani, Wine Reputation and Quality Controls: The Origin of the AOCs in 19th Century France, 18 European J of L. & Econ. 149 (2004). 3 Hughes, supra Footnote note 2, at 301. 4 Institute National de Appellations d’Origine, History and Genesis of the AOC www.inao.gouv.fr/public/textesPages/History_and_concepts350.php?mnu=350 (last visited May 4, 2016). 5 www.dictionary.com/browse/terroir (last visited May 4, 2016). The Oxford dictionaries offer as definitions of terroir both “The complete natural environment in which a particular wine is produced, including factors such as the soil, topography, and climate” and “The characteristic taste and flavor imparted to a wine by the environment in which it is produced.” www.oxforddictionaries.com/us/definition/american_english/terroir (last visited May 4, 2016). 6 Max Allen, Sniff Swirl & Slurp: How to Get More Pleasure Out of Every Glass of Wine 24 (2002). 7 Sir Albert Howard, The Soil and Health (Devin-Adair, 1947). The book was republished by the University of Kentucky Press in 2006. 8 The closest thing to a discussion of terroir comes from a correspondent, Friend Sykes, in one of the appendices to The Soil and health in which Sykes proposes that “the best thoroughbreds are all bred on land with high lime content – either limestone or chalk.” Footnote Id. at 292. 9 B. Burtschy, Dix terroirs, quatre cépages, cinquante grand crus. L’équation enfin résolue, Revue du Vin de France, March 2000, at 54. 10 Yves Rousset-Rouard & Thierry Desseauve, La France face aux vins du Nouveau Monde 120–21 (2002). 11 Rod Smith, Savoring Sonoma/The Wines, L.A. Times, June 1, 2005, at F5 (“The Sonoma Coast AVA was created primarily as a marketing tool for large wineries and is too big (nearly half of the county) to have real viticultural meaning.”). 12 Jacqueline Gardan, Livre de Cave: Précis a l’usage de l’amateur éclairé 77 (Porphyre ed., 1991) (“Quatre regions se différencient par leur terroir et leur climat.”). 13 W.H. Terry Wright, Diverse Geology/Soils Impact Wine Quality, Practical Winery & Vineyard, September/October 2001, at Vol. XXIII, No. 2, www.sonomagrapevine.org/pages/growerstoolbox/gtgeology_soils.html (noting this about Benziger Family Winery and describing “a rich smorgasbord of rock types and a complicated geological history” producing a “high diversity of soil types, each a niche with its own conditions of texture, structure, and nutrients” in Sonoma County). See also World-Class Vineyard Uses GIS to Fine-Tune All Its Operations, ArcNews, Fall 2013 (describing operations at Scheid Vineyards in Monetrey; here “GIS” means “geographical information systems”) available at www.esri.com/esri-news/arcnews/fall13articles/world-class-vineyard-uses-gis-to-finetune-all-its-operations. 14 As in Rowan Jacobsen’s view “that every stream’s salmon are genetically distinct, having conformed to their terroir.” Rowan Jacobsen, American Terroir 172 (2010). 15 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, art. 2(1), October 31, 1958, 923 U.N.T.S. 189 (English text of Stockholm revision begins at 215), available at www.wipo.int/wipolex/en/details.jsp?id=12586 (revised at Stockholm on July 14, 1967, and as amended on September 28, 1979) [hereinafter 1958 Lisbon Agreement]. 16 Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 22(1), April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1125, 1197 [hereinafter TRIPS]. 17 Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications and Regulations under the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, WIPO Document LI/DC/19 (May 20, 2015) [hereinafter Geneva Act], www.wipo.int/meetings/en/details.jsp?meeting_id=35202. 18 Bernard O’Connor, The Legal Protection of Geographical Indications, 2004 Intell. Prop. Q. 1, 52 (“This definition expands the concept of appellation of origin contained in Art. 2 of the Lisbon Agreement to protect goods which merely derive a reputation from their place of origin without possessing a given quality or other characteristics which are due to that place.”); Hughes, supra Footnote note 2, at 315–16 (same). 19 Irene Calboli, Time to Say Local Cheese and Smile as Geographical Indications of Origin? International Trade and Local Development in the United States, 53 Hous. L. Rev. 373, 387 (2015). 21 Catherine Saez, GIs The “Darling” of Europe, But Protection a Challenge for All, Producers Say, IP WATCH, May 28, 2013 (describing report of Michael Erhart, head of agricultural product quality policy at the European Commission, emphasis added), available at www.ip-watch.org/2013/05/28/gis-the-darling-of-europe-but-protection-a-challenge-for-all-producers-say/. 22 Organization for an International Geographical Indications Network, TERUEL DECLARATION (Teruel, June 26, 2009) at 1. 23 James Otieno-Odek, The Way Ahead – What Future for Geographical Indications? WIPO – Italian Government, Worldwide Symposium on Geographical Indications, Parma, Italy, June 27–29, 2005, at 5. 24 While Otieno-Odek mentioned some products that might have reputations in OECD countries (like Mt. Kenya coffee), his list included “Kisii tea, Kericho tea, kangeta, miraa, meru potato, kikuyu grass, Mombasa mango, Machakos mango, Asembo mango, Muranga bananas and Kisii bananas” as well as “Molo lamb, Kitengela ostrich meat, Omena fish and Mursik milk,” Footnote Id. at 3. 25 Carlos Correa, Protection of Geographical Indications in Caricom Countries (September 2002) at 18, available at http://ctrc.sice.oas.org/geograph/crnm/Geographical.pdf. 26 Footnote Id. at 19. 27 Footnote Id. at 18. 28 London Economics, Executive Summary, Evaluation of the CAP Policy on Protected Designations of Origin (PDO) and Protected Geographical Indications (PGI) 3 (November 2008) [hereinafter 2008 London Economists Study]. 29 Footnote Id. at 6. 30 EC No: UK/PGI/005/0335/13.02.2004, Official Journal of the European Union, April 4, 2008, section 4.6 at C 85/20, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:085:0017:0020:EN:PDF. 31 2008 London Economists Study, supra Footnote note 28, at 9. 32 Dwijen Rangnekar, The International Protection of Geographical Indications: The Asian Experience, paper presented at UNCTAD/ICTSC Regional Dialogue on IPRs, Innovation, and Sustainable Development, Hong Kong, November 8–10, 2004. 33 Footnote Id. at 28. 34 Footnote Id. at 8–9. 35 2008 London Economists Study, supra Footnote note 28, at 9. 36 Jillian R. Cavanaugh, Making Salami, Producing Bergamo: The Transformation of Value, 72:2 Ethnos: Journal of Anthropology 155 (2007). 37 Paige West, From Modern Production to Imagined Primitive: The Social World of Coffee from Papua New Guinea 148 (2012). 38 Most Papua New Guineans are Seventh Day Adventists who do not drink coffee. 39 See generally Daniel Gervais, Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications, in Indigenous Peoples’ Innovation 121 (Peter Drahos & Susy Frankel eds., 2012) (suggesting that developing countries may be attracted to GI protection of indigenous products because of GI’s potential ability to promote respect). 40 Daniel Gervais, Irreconcilable Differences? The Geneva Act of the Lisbon Agreement and the Common Law, 53 Hous. L. Rev. 339, 346 (2015). 41 Brochure, McDonald’s: Une excellente qualité, garantie par des partenaires suisses et européens (undated, but from 2009 to 2013) (on file with the author). Actually, the brochure is obliquely worded, naming many Swiss food sector partners but not directly saying what comes from Swiss agricultural production. 42 David A. Wirth, Geographical Indications, Food Safety, and Sustainability Challenges and Opportunities, paper presented at 145th EAAE Seminar “Intellectual Property Rights for Geographical Indications: What is at Stake in the TTIP?”, April 14–15, 2015, Parma, Italy (“Some consumers also seem to be particularly interested in purchasing locally-produced food, lending greater importance to non-GI indications of the locality of origin”) (on file with the author). 43 Annie Gasparro and Leslie Josephs, The Gatekeeper to Organic Heaven, Wall Street Journal, May 7, 2015, at B1 (describing how one small vegan cheese producer spent$3,000 getting certified organic and a bottled ice tea producer saying “grueling certification processes are worth the money to get its iced tea on Whole Foods shelves”).

44 Footnote Id. (for example, Whole Foods – one of the United States’ premier retailers to high-income food consumers – is much more likely to carry products with fair trade or organic labeling).

45 Ulrike Grote, Environmental Labeling, Protected Geographical Indications, and the Interests of Developing Countries, 10 Estrey Centre J. Int’l L. & Trade Pol. 94, 96 (2009) (“A proliferation and multiplication process for labels in different markets is on-going, and it has resulted in decreased transparency and labeling fatigue from the perspective of consumers”). Or as anthropologist Paige West asks us about origin and fair trade labeling, “[w]hat happens when people get tired of hearing about people from the global South?” West, supra Footnote note 37, at 255.

46 Gervais, Irreconcilable Differences, supra Footnote note 40, at 345 (noting that GI labeling “ties into – or may be confused with – ‘fair trade’ labels and certification processes concerning the sourcing of an increasingly wide range of products, many of which come from the developing world”); see Daniel Jaffee, Brewing Justice: Fair Trade Coffee, Sustainability, and Survival 92 (2014) (noting that in rural Oaxaca coffee “producers understandably conflate the tangible requirements of organic production with the less familiar concept of fair trade”).

47 Elaine Sciolino, In France, Pesticides Get in Way of Natural Wines, N.Y. Times, March 2, 2015, available at www.nytimes.com/2015/03/04/dining/in-france-pesticides-get-in-way-of-natural-wines.html?_r=0; Lab Tests on French Wines Find Pesticide Residue in Every Bottle, Food Safety News, September 30, 2013 (reporting that even organic wine contained pesticide residues); see also UFC-Que Choisir, Vins: La peste soit des pesticides, September 24, 2013, available at www.quechoisir.org/alimentation/production-agricole/cultures/enquete-vins-la-peste-soit-des-pesticides.

48 Pesticides in French Wine, N.Y. Times, March 2, 2015, available at www.nytimes.com/2014/01/03/opinion/pesticides-in-french-wine.html?_r=0.

49 Dwijen Rangnekar, Geographical Indications and Localisation: A Case Study of Feni (UK Economic and Social Research Council, 2009), version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1564624##.

50 Tyler Cowen, An Economist Gets Lunch 163 (2012).

51 Coffee: A Major PNG Export, Business Advantage PNG, September 1, 2012 (noting that in Papua New Guinea “the requirements of organic certification can often be beyond the capacity of smallholders”) at www.businessadvantagepng.com/coffee-a-major-png-export/. See generally Jaffee, supra Footnote note 46 (detailing difficulties coffee growers in rural Oaxaca, Mexico face in meeting and maintaining both fair trade and organic standards).

52 Till Stellmacher, Prospects and Challenges of Forest Coffee Certification in Ethiopia: The Need to Effectively Link Economic Benefits and Biodiversity Conservation, 2008 paper at 4, available at http://userpage.fu-berlin.de/~ffu/akumwelt/bc2008/papers/bc2008_9_Stellmacher.pdf.

53 USPTO Registration number 3126053. The application for YIRGACHEFFE was filed on March 17, 2005; published for opposition on April 11, 2006, and granted on August 8, 2006.

54 Making the Origin Count – Two Coffees: Ethiopia and the Starbucks Story, 5 WIPO Magazine, October 2007 at 2, 3 (reporting that USPTO initially denied the HARRAR application in October 2005 and the SIDAMO application in August 2006).

55 USPTO Serial number 78431410. The application was for SHIRKINA SUN-DRIED SIDAMO; filed on June 8, 2004; published for opposition in December 27, 2005; and abandoned on July 8, 2006. “Shirkina” is an Amharic word for partnership. See www.starbucksstore.com/products/shprodde.asp?SKU=439270. The press sometimes misunderstood this. See, e.g., ETHIOPIAN COFFEE: Every bean counts, Brands Strategy, September 14, 2007, at 48 (describing Starbuck’s application correctly, but stating that if Starbucks had received the trademark, Ethiopian farmers “could have lost the right to name their own product”).

56 Starbucks Press Release, Starbucks Sets the Record Straight on Press Coverage Regarding Starbucks, the Ethiopian Government, and Oxfam, October 26, 2006, available at www.starbucks.com/aboutus/pressdesc.asp?id=714.

57 Starbucks and EIPO Reach Agreement, Tea and Coffee Trade Journal, June 1, 2007 at 62 (Ethiopian government offices “[w]e realize our approach to trademarking and licensing these coffees brands that originate in and represent the best of Ethiopia’s coffee heritage is a new approach”).

58 After a meeting between Starbucks CEO and the Ethiopian Prime Minister, the former announced that “Starbucks and the Ethiopian government agreed that they will work together toward a solution for the protection and use of Intellectual Property Rights of Ethiopian coffee names.” Press Release, Starbucks and the Ethiopian Government Agree to Work Together Toward a Solution that Supports the Ethiopian Coffee Farmers, November 29, 2006, available at www.starbucks.com/aboutus/pressdesc.asp?id=729. Starbucks subsequently sponsored Ethiopia as the first “African Portrait Country” at the annual meeting of the Specialty Coffee Association of America in 2008. Country Takes Center Stage at US Specialty Coffee Conference, The Daily Monitor (Ethiopia), April 30, 2008.

59 SIDAMO – USPTO registration number 3381739; application dated March 17, 2005; published for opposition on November 27, 2007; and registered on February 12, 2008. HARRAR – USPTO registration number 3457979; application dated March 17, 2005; published for opposition on April 15, 2008; and registered on July 1, 2008.

60 See, e.g., ETHIOPIAN COFFEE: Every Bean Counts, Brands Strategy, September 14, 2007 at 48; Ethiopia: Starbucks to Sign Licence Agreement with EIPO, 34 Coffee & Cocoa International 4 (June/July 2007); see Janet Adamy, Starbucks, Ethiopia Agree on Licensing, Wall St. J., June 21, 2007, at B6.

61 Ethiopia is Now Trademarking its Specialty Coffees, The Food Institute Report, November 19, 2007 at 5 (Oxfam America reporting that trademarks would bring Ethiopia an additional \$US 88 million).

62 U. Grote, Environmental Labeling, Protected Geographical Indications and the Interests of Developing Countries, 10 Estey Centre Journal of International Law and Trade Policy, volume 1, 94, 95 (2009).

63 Robert Winter, Arnold & Porter, January 29, 2007: www.youtube.com/watch?v=2DiWK81j7fg.

64 ETHIOPIAN COFFEE; Trademark versus geographical certification, Brand Strategy, September 14, 2007 at 49 (emphasis added).

65 See generally, Justin Hughes, Coffee and Chocolate – Can We Help Developing Country Farmers through Geographical Indications? September 29, 2010 (describing how African governments and capital elites have historically extracted economic rents from rural cocoa and coffee producing areas), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1684370&rec=1&srcabs=1671676&alg=5&pos=4 (last visited May 4, 2016).

66 Joshua Gallu, Starbucks, Ethiopia, and the Coffee Branding Wars, Der Speigel Online (English), November 16, 2006, available at www.spiegel.de/international/0,1518,448191,00.html. One Ethiopian official has said the same thing: “[o]ur coffee is grown on four million very small plots of land. Setting up a certification system would have been impracticable and too expensive. Trademarking was more appropriate to our needs. It was a more direct route offering more control.” Making the Origin Count – Two Coffees: Colombia – 50 Years of Evolving Strategies, 5 WIPO Magazine, October 2007 at 3.

67 ETHIOPIAN COFFEE: Every bean counts, Brands Strategy, September 14, 2007 at 48. See also Direct from the Source, Coffee in Ethiopia, The Economist (U.S. edition), April 19, 2008 (head of EIPO says that there was neither time nor money for Ethiopia “to pursue a complicated certification process”).

68 Making the Origin Count – Two Coffees, supra Footnote note 66, at 3.

69 See Direct from the Source, Coffee in Ethiopia, supra Footnote note 67 (quoting Getachew Mengistie, head of EIPO).

70 Starbucks, Discover the Finest Coffee in the World (2010) (on file with the author). The regional coffees offered in the brochure are Columbia Nariňo Supremo, Guatemala Antigua, Sulawesi, Sumatra, Sumatra Decaf, Kenya, and Rwanda.

71 Starbucks press release, September 23, 2013, available at https://news.starbucks.com/news/starbucks-honors-the-birthplace-of-coffee-with-ethiopia [hereinafter Starbucks Ethiopia Press Release].

72 Another page for the Ethiopia coffee says: “On the ancient slopes flanking Africa’s Great Rift Valley, coffee trees first emerged from the rich, volcanic soil.” But no mention of the three regions. http://store.starbucks.com/ethiopia-whole-bean-011028995.html (last visited May 4, 2016). Starbucks also offers an “Ethiopia Gemadro” single-origin estate coffee. http://store.starbucks.com/ethiopia-gemadro-single-origin-estate-011040514.html (last visited May 4, 2016).

73 Starbucks Ethiopia Press Release, supra Footnote note 71.

76 Cowen, supra Footnote note 50, at 163.

77 Germany and Saudi Arabia each import far more Ethiopian coffee than the United States, the latter for obvious geographic reasons. See Ethiopian Coffee Consumers Vote for Quality amid Rising Prices, Ethiopian News, May 9, 2011 (showing the US as the third-largest market for Ethiopian coffee in 2009/10), www.ethiopian-news.com/ethiopian-coffee-consumers-vote-quality-rising-prices/; USDA Global Agricultural Information Network Annual Ethiopia Coffee Report, GAIN Report No.: ET-1302, May 14, 2013 (showing the US as the fifth-largest market for Ethiopian coffee in 2011/12 after Germany, Saudi Arabia, France, and Belgium).

78 Dwijen Rangnekar, Geographical Indications and Localisation: A Case Study of Feni (UK Economic and Social Research Council, 2009), version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1564624## [hereinafter Rangnekar, Case Study of Feni].

79 Footnote Id. at 24.

80 Footnote Id. (“The apples are generally left to fall to the ground before being collected, as this is an indication that the kernel/nut is mature … The cultural wisdom against plucking apples from the tree is that the unripe apple will give the Feni a bitter taste.”)

81 Footnote Id. at 25.

82 Footnote Id. at 26–27 (detailing evolution of different pot-still designs and construction).

83 Footnote Id. at 28.

84 All these facts are recounted at Footnote id. at 30.

85 Footnote Id. at 6.

86 Footnote Id. at 7 (“An informal committee involving journalists and archivists, agronomists and scientists, and bottlers and distillers, was assembled. Details of the distilling process were scripted, its history was researched and collected, and chemical analysis was conducted and documented.”).

87 Footnote Id. at 8.

88 Footnote Id. at 35 (“most distillers were not involved in the GI debate in Goa. For that matter, a mere 2% confirmed knowledge about the GI application in comparison to over 80% of bottlers”).

89 Footnote Id. at 31.

90 For example, one website currently describes coconut Feni in detail and says “Feni has got the status of Geographical Indication (GI).” In smaller print, the webpage mentions that the GI registration is only for cashew apple Feni and since that is the only time cashew apple Feni is mentioned, a reader might easily think all GI Feni is coconut. See Goan Fenny/Feni, Indian Mirror, www.indianmirror.com/culture/indian-specialties/Goanfeni.html (last visited May 12, 2016).

91 For example, in his fieldwork Rangnekar concludes that “the most popular level” of alcoholic content for Feni “lies outside the GI specifications.” Rangnekar, Case Study of Feni, supra Footnote note 78, at 49.

92 Footnote Id. at 42 (noting that the “lack of clarity on the geographic origin of cashew apples” shows the “tacit acceptance of the practice of cashew apples being transported from beyond Goa’s borders” and that this practice might already be necessary to meet local demand). See also Footnote id. at 9.

93 Footnote Id. at 37. As a 2012 report says, “[a]round three-fourths of the distillers sell their produce to bars directly.” Raunaq Sahu, The Goan Feni Industry: Challenges, The Centre for Civil Society, CCS Working Paper No. 261 at 4 (2012) available at http://ccs.in/internship_papers/2012/261_feni-industry_raunaq-sahu.pdf [Sahu’s report appears to have been written under an internship program, i.e., the author may be a student].

94 Rangnekar, Case Study of Feni, supra Footnote note 78, at 40. The Goa activists pursuing the GI protection referred to Tequila as “an example to emulate.” Footnote Id. at 42.

95 Sahu, supra Footnote note 93, at 5.

96 Rangnekar, Case Study of Feni, supra Footnote note 78, at 50.

97 Sahu, supra Footnote note 93, at 1. Chandu Gopalakrishnan, Hic! Feni Fights to Regain Turf in Goa, Economic Times of India, July 1, 2010 (“But even after obtaining the GI status, production of feni continues to decline, putting in danger the already-meagre export prospects”) available at http://articles.economictimes.indiatimes.com/2010–07-01/news/28392598_1_feni-gurudatta-bhakta-cashew-apple. But in fairness that comment is made only one year after GI status.

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