3.1 Registering a Geographical Indication

In order for agricultural, forestry, and fishery products, and foodstuffs to be eligible for a GI, they first need to be identifiable based on location,Footnote ³³ quality, or reputation linked to that location.Footnote ³⁴ If producers or processors of agricultural, forestry, and fishery products think that their products fulfil these criteria, they can form an association of producers.Footnote ³⁵

An association of producers is in principle composed of members who can be, but are not limited to,Footnote ³⁶ the direct producers of the agricultural, forestry, and fishery produce. If the association is organized as a legal person, a representative or a manager has to be appointed. The association has multiple tasks: first, it has the responsibility of applying for the GI to MAFF and therefore has to prepare all the necessary documents. Second, once a GI registration has been granted, the association is responsible for the management and control of the production processes described in the product specification (as filed in the application).

Once the association of producers has been formed, it can proceed to file an application with MAFF for a GI.Footnote ³⁷ The application needs to contain the following information:Footnote ³⁸

1. (1) Name and address of the association of producers and its representative

2. (2) Classification of the agricultural, forestry, or fishery product

3. (3) Name of the agricultural, forestry, or fishery product

4. (4) Region of the agricultural, forestry, or fishery product

5. (5) Distinct characteristic of the agricultural, forestry, or fishery product (shape, taste, etc.)

6. (6) Method of production of the agricultural, forestry, or fishery product.

This list of requirements can be expanded by MAFF to include other necessary information.Footnote ³⁹ The producer association must also submit detailed product specifications and quality-control guidelines together with the application form.Footnote ⁴⁰ These guidelines should specify how the group will manage the production process. Since the specification of the product is supposed to be done within the specified community, the local producers or processors who want the recognition of their products as GIs will be consulted.

Once the GI application is submitted, MAFF will publish the application on a dedicated website.Footnote ⁴¹ Subsequently, for a period of three months thereafter, any person may submit an opinion regarding the application to MAFF.Footnote ⁴² The opinions are then forwarded to the applying association.Footnote ⁴³

After the three months, MAFF must consult experts (persons with specialized knowledge and experience) to see whether the application should be rejected under one of the categories listed in the GI Act.Footnote ⁴⁴ The experts will also be given the opinions expressed during the three-month public notice period.Footnote ⁴⁵ If the experts deem it necessary, they can also directly consult the stakeholders.Footnote ⁴⁶ In the process of formulating their opinion, the experts have a duty of confidentiality regarding the information they have obtained. Furthermore, they should not use this information fraudulently.Footnote ⁴⁷ If the experts’ screening process does not reveal any reason to reject the application, MAFF will proceed to register the GI,Footnote ⁴⁸ inform the applicant of its successful registration,Footnote ⁴⁹ and notify the public by posting it on a designated MAFF website.Footnote ⁵⁰

3.2 Refusal of an Application for a Geographical Indication

There are several reasons why a GI application may be denied. The main reasons can be divided into the following categories: the nature or behaviour of the applicant,Footnote ⁵¹ the quality-control guidelines,Footnote ⁵² the nature of the product,Footnote ⁵³ and the name of the product.Footnote ⁵⁴

A prospective applicant may have to wait two years before applying again if his organization’s (association of producers) GI had previously been cancelled for any of the following reasons:Footnote ⁵⁵

1. (1) the association of producers no longer meet the requirements of being an association of producers;

2. (2) the association of producers has disobeyed an order of MAFF; or

3. (3) the association of producers has submitted an application by unlawful means.

Next, quality-control guidelines are an important part of the application. They should stipulate how the organization plans to ensure that the association’s members comply with the methods of production described in the application.Footnote ⁵⁶ Registration may be refused if the guidelines are insufficient to fairly ensure compliance with the stipulated methods of production.Footnote ⁵⁷ Equally, if the organization does not prove to have enough financial or technical ability to maintain quality control, MAFF will refuse the application.Footnote ⁵⁸

MAFF will also refuse a GI application if the products do not meet the definition of the designated agricultural, forestry, and fishery products, and foodstuffs.Footnote ⁵⁹ This has two aspects. Items that fall outside the definition of agricultural, forestry, and fishery products, and foodstuffs in Article 2(1) may be refused application.Footnote ⁶⁰ Another basis for refusal is the lack of a geographic link, specific quality, reputation, or other characteristic that is attributable to the location in question.Footnote ⁶¹

Finally, the MAFF may refuse an application if the name of the product is a generic term,Footnote ⁶² or if it is identical or similar to a registered trademark.Footnote ⁶³ However, it is possible that the owner of a registered trademark, or an authorized user, could have applied for GI recognition.Footnote ⁶⁴ In such a case, the name will be protected under both the trademark law and the GI Act.

3.3 Amendments to a Geographical Indication Registration

In Japan, the terms of registration of a GI are not necessarily permanently fixed. Even though it is compulsory to submit a description of the production process and to implement quality-control guidelines to ensure compliance, the GI Act gives the association of producers the opportunity to revise their registration.Footnote ⁶⁵ The process of amending a GI’s registration is, just like the registration process itself, a time-consuming one under the supervision of MAFF. The amendments may be related to either the eligibility of the association of producersFootnote ⁶⁶ or the application documents.Footnote ⁶⁷

The association of producers in charge of checking for compliance with the quality-control guidelines can apply to add another association of producers.Footnote ⁶⁸ This application requires the name and address of the added association of producers and its representative.Footnote ⁶⁹

Amendments to application documents have to be supported by all the associations of producers that have applied for the registration of a GI.Footnote ⁷⁰ In other words, all associations of producers need to submit a joint application for an amendment. The request for an amendment can relate to the name, the region, the characteristic of the product, the production process, or if MAFF requires extra information.Footnote ⁷¹ The application for an amendment needs to mention the registration number and a description of the part that requires amendment.Footnote ⁷²

The procedure for these amendments is mutatis mutandis the same as that for registration. This means that there is a publication of the amendments, an opposition period, and consultation with experts.Footnote ⁷³ The duration for each of these steps is the same as in the original registration.Footnote ⁷⁴ Once the amendments are approved, MAFF will publish it on its website.Footnote ⁷⁵

3.4 Cancellation of a Geographical Indication Registration

Besides the cases in which a registration as a GI loses its effects, which is when an association of producers has been dissolved or the quality-control guidelines have been abolished, MAFF may also, ex officio, cancel a registration.Footnote ⁷⁶ A cancellation can be done for reasons pertaining to the association of producers,Footnote ⁷⁷ the information in the application for registration,Footnote ⁷⁸ or the product name.Footnote ⁷⁹

First, an association of producers is meant to be an organization that groups producers, processors, or brand organizations.Footnote ⁸⁰ Moreover, the organization is required to accept members on fair conditions comparable with that applicable to current members.Footnote ⁸¹ Thus, no legitimate candidate should be refused participation. A violation of any of these conditions means that an ‘association of producers’ is not in compliance with the definition of an association of producers.Footnote ⁸² Because of this, MAFF could cancel the registered GI.Footnote ⁸³

Second, an association of producers has several obligations. Members of an association of producers have the right to use the GI for the registered products. But the flipside of the coin is the obligation not to use the GI for products that are similar to the registered product.Footnote ⁸⁴ The use of designated symbol for a GI is allowed, but the use of a similar symbol is forbidden.Footnote ⁸⁵ Any other use not described in the previous two examples is caught by a general obligation to refrain from any unlawful use of the GI.Footnote ⁸⁶ If any of these obligations are violated, MAFF is entitled to cancel the registration.Footnote ⁸⁷

Quality control is an essential element for obtaining a GI registration and maintaining the registration. Therefore, the association of producers are obligated to implement the best guidelines to ensure that the quality of GI products is upheld up to the expectations of the consumers and as indicated in the product specification. This requires guidelines that ensure compliance with the method of production, that there is sufficient financial capacity to implement the guidelines, and competent technical ability to carry out the required measures.Footnote ⁸⁸ If any of these are not present, MAFF has the right to cancel the registration because the ‘authenticity’ of the product may be compromised.Footnote ⁸⁹

Lastly, MAFF can also cancel a GI registration if the description in the application regarding the origin and characteristics of the product are inaccurate or false.Footnote ⁹⁰ MAFF has a similar right if the product no longer originates from a specific region, or if the quality, reputation, or other characteristics essentially attributable to its geographical origin cease to exist.Footnote ⁹¹ The registration will also be cancelled if the registered name of a designated product has become a generic term.Footnote ⁹²

4.1 Positioning Intangible Cultural Heritage within the Geographical Indications Act

Since he came to power in 2012, Prime Minister Abe has emphasized achieving economic growth – by a system often referred to as ‘Abenomics’.Footnote ⁹³ Since the revitalization of the agricultural sector fits within this economic strategy,Footnote ⁹⁴ a system of GIs for agricultural, forestry, and fishery products was implemented to facilitate this revitalization.Footnote ⁹⁵

In particular, MAFF has supported that GIs can contribute to this revitalization in two different ways. First, GIs will enable product differentiation based upon the GI name and the branding can be associated with the GI name. This, together with quality assurance that is embodied in GI-denominated products, should lead to higher prices for GI products. In turn, rural villages will reap the benefits of these higher prices, and thus these villages will be economically revitalized.Footnote ⁹⁶ Second, by highlighting the truly Japanese origin of local produce, GIs will make the products more attractive for foreign consumers and the interest of these consumers for Japanese products will increase, therefore spurring the export of Japanese agricultural, forestry, and fishery products, and foodstuffs.Footnote ⁹⁷

In this context, however, consumer protection only enters the picture as an indirect consequence of the quality-control requirement that GI producers have to fulfil as part of the GI specification. Due to quality control, only products that abide with the predetermined quality standards reach the market. Still, the requirement that GI producers have to guarantee a certain product quality and exert quality control is, according to MAFF, beneficial to consumers.Footnote ⁹⁸

Moreover, ICH is not mentioned by MAFF as one of the goals of the GI Act, except for the assistance to inheriting traditional food culture.Footnote ⁹⁹ Likewise, MAFF does not indicate the importance and the implication for GIs of traditional food, and traditional food culture. Hence, traditional food culture could be relevant in two aspects in the context of GI protection. On the one hand, traditional food culture may relate to traditional techniques of preparing agricultural products into food,Footnote ¹⁰⁰ which could be relevant as part of the GI specification and in turn the quality control to which GI products should be subjected as part of the GI Act. On the other hand, traditional food culture could contribute to the success of GI products as it incentivizes maintaining a culture of consuming local produce.Footnote ¹⁰¹

Because of its limited scope, this chapter does not need to assess whether the GI Act will be able to attain the goals identified by MAFF. Also, this chapter cannot address the question of whether the GI Act has underlying unstated goals and whether they could be realized. For the purposes of this chapter, it suffices to point out that economic goals are the most prominent in MAFF’s discourse. Therefore, it is likely that MAFF will gear the operation of the GI Act towards attaining the economic goals without necessarily paying attention to other stakes, such as safeguarding ICH. Furthermore, MAFF is not a ministry that deals with culture and thus has no expertise in this respect. But this lack of expertise could be compensated for by relying on experts who are well versed not only in GIs but also in ICH issues.Footnote ¹⁰²

Notwithstanding MAFF’s lack of interest or expertise in safeguarding ICH, the broad scope of the GI Act, combined with the necessity to describe the production process, means that ICH can be part of a GI. But when holders of ICH register for a GI, they should consider the problems relating to the association of producers, the authenticity of the production process, and the product specification.

4.2 Association of Producers and Communities

A GI regime is an attractive legal instrument for ICH holders because it is ‘based upon collective traditions and a collective decision-making process’.Footnote ¹⁰³ The GI Act stipulates that the collective decision-making must occur within the context of an association of producers.Footnote ¹⁰⁴ The GI Act leaves open the question of whether or not the association takes the form of a legal person. If the association takes the form of a legal person, it needs to appoint a representative. In the context of ICH, one could argue that the holders of ICH, as a community, could be considered an association, and thus they may be eligible to apply for a GI.

In the context of indigenous communities, Rosemary Coombe, Sarah Ives, and Daniel Huizenga have identified that it will most likely not be difficult for the communities to assume the role of an association of producers.Footnote ¹⁰⁵ These communities would usually have already been ‘subjectified’Footnote ¹⁰⁶ to this role in their interaction with norms of other discourses, maybe human rights or environmental issues.Footnote ¹⁰⁷ These experiences would help them recognize the ‘economic and political opportunities that GI protections afford’.Footnote ¹⁰⁸

However, ICH in Japan is not necessarily linked to indigenous communities seeking protection.Footnote ¹⁰⁹ Nonetheless, Japan has a relatively old law dealing with ICH. The Law for the Protection of Cultural Property was adopted in 1950.Footnote ¹¹⁰ Under this law, ICH, including traditional craftsmanship, can be designated as important intangible cultural property. Where there has been a designation of important intangible cultural property under this law, the population groupFootnote ¹¹¹ holding the ICH will have identified itself as a community,Footnote ¹¹² which then can subsume the role of an association of producers.

Even though the population group is considered a community for the purposes of ICH, this community may not necessarily be sufficiently homogenous to agree that a GI registration is mutually beneficial for all.Footnote ¹¹³ Coombe, Ives, and Huizinga reflect on the minoritarian bias,Footnote ¹¹⁴ in which a small group of producers, often the wealthy ones, steer the rest towards the registration for a GI.Footnote ¹¹⁵ Thus, this small group may be able to construct the collective organization to suit their demands. Their demands may impact the description of the GI in several ways. For example, the production process could favour the practices of this group. Moreover, the criteria for participation in the collective organization may also be determined during application, possibly creating a burden for future entry.

The risk of a minoritarian bias may be problematic in light of the often-heard critique that a GI creates a monopoly right.Footnote ¹¹⁶ Accordingly, one could argue that the creation of a monopoly right would further strengthen the grip this small group has on the ICH. However, it should be noted that a monopoly right is an indirect consequence of a GI. The ‘monopoly right’ created by a GI is one that mainly delineates who may have an individual ‘entitlement to the collective’.Footnote ¹¹⁷ In other words, the regime is set up to determine the ‘group of qualified individuals who can use the GI for their independent business purposes’.Footnote ¹¹⁸ Therefore, the ‘monopoly right’ does not deprive anyone from using techniques or knowledge that underlie the GI. ICH holders who refuse to join the collective association in applying for a GI will still be able to produce their products, but will be limited in their marketing efforts. Their marketing must not resemble the GI’s marketing, something the GI Act confirms in Article 3(2).

Even if the ICH is not yet designated, a collective association must still be formed. However, the risk associated with this situation is the artificial creation of a communityFootnote ¹¹⁹ or an industry, or by the state driving the formation of the association.Footnote ¹²⁰ It has been described by Coombe, Ives, and Huizinga that this may have an industrialization effect. They describe this effect in relation to Chucucanas ceramics and Mexican tequila. In the case of ceramics, government interference led to ‘promoting economies of scale and forms of industrialized manufacture that […] seriously damaged the social relations of production which historically sustained egalitarian communities of producers’.Footnote ¹²¹ Industry elites working together with the government to nominate tequila as ICH resulted in the ‘introduction of highly industrialized standards and volumes of production which marginalized smaller producers’.Footnote ¹²²

It is difficult to be sure that these problems will not occur in Japan. However, the fact that associations have a long history in JapanFootnote ¹²³ means that many holders of ICH are most likely linked to associations that date back to the late nineteenth or early twentieth centuries (often changing names in the post-war period)Footnote ¹²⁴ and that were often formed under state guidance to, for example, improve the flow of information and quality control.Footnote ¹²⁵ A unifying or industrializing effect on the production process – if any – might have happened at the time these associations were formed. But this does not take us away from the fact that the above-described minoritarian biases can be removed in associations that have been operating for decades, especially if the local associations are under the control of a nationwide association.

Moreover, it could be argued that the likelihood of a minoritarian bias or the effect of the industrial elite’s influence will be minor in an environment that allows producers with a pending GI application to participate widely.Footnote ¹²⁶ The GI Act has only two broad guarantees for having such a participatory role. First, the GI Act requires the formation of an association of producers in order to apply for a GI.Footnote ¹²⁷ The formation of an association might lead to communication between the various stakeholders, but will not necessarily exclude a minoritarian bias or an industrial elite’s influence. Second, the GI Act provides the possibility of filing complaints against a GI application.Footnote ¹²⁸ These complaints may express concern over the loss of diversity of ICH. However, MAFF and its experts may not take complaints seriously because the safeguarding of ICH is not its main aim. But ultimately, the loss of diversity is not a reason to refuse the registration of a GI. Nevertheless, it could encourage internal discussion among the producers.Footnote ¹²⁹

In order to somehow prevent the above-described problems from occurring, producers could turn to the flexibility offered in substantive law provisions.Footnote ¹³⁰ The GI Act requires a product specification that describes the production process. There is no indication in the law that such a production process should be homogenous among the members of the association of producers.Footnote ¹³¹ The application guidelines offer some further insight into this.

First of all, the guidelines indicate that, when dealing with the relevant characteristics for an application, plural criteria can be included.Footnote ¹³² The application form itself refers to several elements, such as the technical basis, special ingredients, special raw materials, delivery basis or standard, feedstuff, or cultivated breed, that could make up the production process.Footnote ¹³³ The application form indicates that this list of examples is neither exhaustive nor compulsory.Footnote ¹³⁴ However, neither the guidelines nor the application form indicate whether the plurality points to more than one element or whether that one element could have different varieties. In the latter case, the applicant could explicitly stipulate the differences in the production process.Footnote ¹³⁵ A more indirect approach would be to not directly mention the differences, but instead stipulate the ‘normally-followed’ production process.Footnote ¹³⁶ Nevertheless, whether the former or the latter approach is followed, both enable holders of ICH to participate actively in the registration process.

Second, more than one association of producers can be registered to use the GI.Footnote ¹³⁷ The guidelines stipulate that only one single application form can be submitted, but the product specification needs to be submitted by each respective association.Footnote ¹³⁸ It is explicitly acknowledged in the guidelines that the respective product specifications can differ from each other.Footnote ¹³⁹ Since the product specification also has a section on the production process, the differences could be identified there as well. To accommodate these interpretations of the law, MAFF should use application forms that allow for enough flexibility.

Even though the substantive law seems to enable flexibility and thus a broader participation by different holders of ICH, the remaining question is how the controlling institutions – the experts and MAFF – will judge the acceptability of the inclusion of difference in the production process, or of a vague formulation of the production process. Quality control will most likely be the main criterion by which this decision will be made. Vague formulations will make such quality-control assessments difficult and give the producers much leeway to breach the appropriate standards. A detailed formulation will allow for better quality assessment, but it requires a more sophisticated and expensive quality-control mechanism.

While the GI Act may be able to accommodate diversity, we need to reflect on whether the unifying force of a minoritarian bias or industrial elite should be automatically considered as problematic. ICH is a living heritage, prone to change in response to the outside environment.Footnote ¹⁴⁰ Thus, it could be questioned whether the application for a GI should necessarily mean the fixation on preserving the diversity of ICH. This issue links to authenticity, a concept often heard within the context of GIs.

4.3 Authenticity of the Production Process and Intangible Cultural Heritage

GIs are often linked to the concept of authenticity. This link stems from the fact that the production process must adhere to what has been described in the application for a GI. In other words, a product is no longer authentic if a different production process, other than the one put forward during the application, is deployed. Non-compliance with the production process, which is most likely ‘inseparably linked to geography’,Footnote ¹⁴¹ could eventually affect the quality of the product that the GI is supposed to represent. This interpretation excludes any form of divergence from the stipulated production process. Therefore, GIs are described as stabilizing a ‘historically validated production process’,Footnote ¹⁴² and this runs counter to the characteristic of the living nature of ICH.Footnote ¹⁴³

After pointing out that other scholars have already indicated that the timeliness of the production process should not be too strongly overstated,Footnote ¹⁴⁴ Dev Gangjee provides a way out of the authenticity issue. He posits that as long as the understanding of authenticity refers to a state of antiquity, the concepts of GIs and ICH will not be reconcilable with each other. By shifting the understanding of authenticity to the designation of a ‘strong link with a specific community’,Footnote ¹⁴⁵ goods will be authentic if they are produced by what the community considers the appropriate method of production. This allows for a specific community to actively (re-)interpret the intergenerational transmissions of production processes.

Gangjee’s vision on the interpretation of authenticity is not foreign to the recent ICH debate. In his article Intangible Cultural Heritage: The Living Culture of Peoples, Federico Lenzerini argues that authenticity, even though not included in the ICH Convention, could be valuable to ICH.Footnote ¹⁴⁶ More specifically, authenticity could guarantee the connection between ICH and the cultural identity of the creators and bearers. Authenticity would be the concept preventing ICH from being used for purposes that the community does not ascribe to. ICH would be authentic if ‘such heritage is constantly tailored to the cultural identity of the communities, groups, and or persons concerned’.Footnote ¹⁴⁷

However, suggesting that authenticity should be devoid of the meaning of originality still requires the GI Act and its enforcement structure to suit such an interpretation. As mentioned above, the GI Act provides the possibility for amending the GI registration. One area that could be amended is the description of the production process to give the impression that, in theory at least, a community could apply to amend the registration whenever it deems desirable. If MAFF accepts some flexibility in the formulation of the production process, the change in the production process could be printed just next to the original description of the production process.

In the absence of flexibility, and presuming that a process of change will most likely be gradually initiated by some members of the community, two scenarios could develop. The first is that the more vocal members of the community could change their production process, thereby forcing the others to follow suit. Thus, when less outspoken or minority community members change the production process of the ICH, the more outspoken or the majority members may keep that group in line via the quality-control mechanisms enforced by the association of producers. Whatever the case may be, a strict application of the GI Act could either cause the standardization of ICH or stifle its development.

The second scenario could be that changes to the ICH mentioned in a GI registration may only be recorded with the consent of the association of producers. Therefore, individual members cannot apply for a change in the registration because all the members must be in agreement. There is no role for MAFF to play if there is any disagreement between the members. The best way for MAFF to accommodate the blurry boundaries of ICH is to do away with an overly legalistic application of the GI Act and allow flexibility in the application documents.

4.4 Openness of the Product Specification and Intangible Cultural Heritage

Generally speaking, the product specification must be drawn up before a product may be registered as a GI. In principle, the product specification should concentrate on the ‘product’s unique connection to its particular place of origin’.Footnote ¹⁴⁸ Ultimately, the connection to a place is ‘definitional to a GI’.Footnote ¹⁴⁹ This means that the legitimacy of a GI can be sustained if ‘weather and topology’Footnote ¹⁵⁰ make out the ‘claimed nexus between place and product qualities’.Footnote ¹⁵¹ The GI Act also requires a description of the production process.Footnote ¹⁵² The production process – especially when we talk about products made from agricultural, fishery, or forestry products – may well be based on knowledge that the community has gathered in order to make valuable products with what they had on hand.Footnote ¹⁵³ ICH is formed through years of passing down this knowledge and then transforming it into an identifier for that community.Footnote ¹⁵⁴ Thus, it is likely that this ICH also characterizes the unique qualities of the product.

The process of describing ICH is also found in the ICH discourse. The ICH Convention, for example, imposes an obligation on its member states to create one or more inventories of their ICH.Footnote ¹⁵⁵ But there is one difference between the ICH Convention and the GI Act: the ICH Convention is quite flexible as to what these inventories could mean.Footnote ¹⁵⁶ For example, it could be a listing of ICH identified in the member state’s sovereign territory. Within the listing, separate categories can be made depending on their local, regional, or national importance. Another listing could be categorized depending on its need for extra safeguards. The inventory could also be a detailed description of what the ICH is. In other words, the ICH Convention leaves enough freedom to the member states to create inventories that cater to the specific needs of the communities.Footnote ¹⁵⁷

In the previous sections, speculation was made about the flexibility of the GI Act to accommodate diversity and change. The registration guidelines are much more direct about the inclusion of elements that could be considered as trade secrets or know-how of the community. The guidelines mention that the applicant should think carefully about including such secrets or know-how in the application documents, as these documents are generally made public.Footnote ¹⁵⁸ The only limitation that the guidelines put to this flexibility is that the trade secret or the know-how should not be directly related to the product’s characteristics.Footnote ¹⁵⁹ MAFF and its experts have a margin of appreciation as to what aspects of the production process should be revealed. But, as Hughes mentions in one of his studies, what is the point of a GI when something essentially relevant to characterize the product is not part of the description made to obtain the registration?Footnote ¹⁶⁰