2.1 Geographical names, trademark law and the market for language

In theory, geographical names, or ‘toponyms’, are considered common knowledge and thus a public good, since they designate specific places and cannot be appropriated by anyone. However, as stressed by Ostrom (Reference Ostrom2003), being part of the ‘public domain’ is not synonymous with being open and providing free access, as this access depends on the nature and proper enforcement of de facto or de jure IPR regimes. Geographical names have been used since ancient times as a quality signal in the trade of goods and in helping consumers identify the specific quality attributes of goods (Stanziani, Reference Stanziani2004). Therefore, geographical names are also part of a market for language (Landes and Posner, Reference Landes and Posner1987: 268). The collective character of geographical names also makes them more vulnerable to possible risks of confiscation or usurpation by private interests, especially through when these names are registered under the regular trademark regime (Brauneis and Schechter, Reference Brauneis and Schechter2006). In line with earlier property rights studies by Demsetz (Reference Demsetz1967) and Allen (Reference Allen2002), a number of studies have emphasized that when geographical names become valuable assets, as they acquire wide notoriety and a positive reputation among consumers, private appropriation, including through usurpation, confiscation, undue use, or trademark registration, is more likely to arise (Stanziani, Reference Stanziani2004).

In most countries, a general precept of IP laws on trademarks stipulates that a trademark should not deceive the general public about the origin of the product, nor should it provide false, confusing, or misleading information to consumers. In the US context, the registration of individual trademarks is often possible under various jurisdictions, following the rule of ‘first come, first served’, and subject to a number of conditions, such as (in US law) the condition of ‘secondary meaning’ (Brauneis and Schechter, Reference Brauneis and Schechter2006; Landes and Posner, Reference Landes and Posner1987). In Europe, and especially in France, a stronger protection statute of geographical names emerged at the end of the 19th century through the so-called sui generis legal regime of ‘Appellation d'Origine’ (AO). This legal regime arose as a means to protect consumers against counterfeit goods and fraud in product quality resulting from food adulteration and falsification; its adoption also constituted an attempt to reduce the number of legal cases and the political struggles that emerged as a result of conflicts between wine producers and traders over the use of well-known geographical names and the risk of undue appropriation of these names through trademark registration in the Bordeaux area (Stanziani, Reference Stanziani2004).

Stanziani (Reference Stanziani2004) identified another important issue regarding the adoption of legislation pertaining to GIs in France: the aim to hedge against the threat of the transformation of renowned GIs into generic names that would become part of the public domain, leading to their possible commodification. The threat of becoming a generic name is a specific dimension of trademark law (Landes and Posner, Reference Landes and Posner1987). In the literature, a large body of research has focused on the benefits of individual or collective trademarks and their reputation capital, as a means to reduce consumers' search costs by acting as a ‘summary information’ about the quality attributes of a product (Landes and Posner, Reference Landes and Posner1987; Winfree and McCluskey, Reference Winfree and McCluskey2005). Brand names also define self-enforcing devices that provide ex-ante incentives to invest in the maintenance of their own reputation over time, which allow the trademark to become valuable (Klein and Leffler, Reference Klein and Leffler1981).

In the case of geographical names, such collective investment is often considered part of the local cultural identity, a common heritage and collective knowledge shared by local communities; indeed, this collective investment cannot be privately appropriated by private firms unless being a form of intellectual grabbing (Gangjee, Reference Gangjee2016). Thus, the EU legislation on GIs adopted in 1992 for agricultural products and foodstuffs intended to provide legal protection to highly valued geographical names, making these names inalienable and granted the exclusive rights to use these names to the groups of producers of a particular region subjected to their registration.Footnote ⁴ The development of GIs as a sui generis common property regime has become a major source of policy debate at the international level in recent decades.

2.2 Geographical names: an extended discrete and dynamic Ostrom's taxonomy

In the literature, academic debates surrounding the legal protection of European GIs have emphasized, either implicitly or explicitly, the position of these GIs in relation to Ostrom's taxonomy (Ostrom and Ostrom, Reference Ostrom, Ostrom and Savas1977). Moving beyond the private‒public dichotomy in the provision of goods (and services) proposed by Samuelson (Reference Samuelson1954), Rayamajhee (Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020) stressed that the question should instead pertain to the types of institutional arrangements that best provide a variety of goods and services in a dynamic economy in which technology and institutions constantly evolve. Because of the cultural heritage and collective dimensions of geographical names, their public good dimension has often been viewed as common knowledge embodied in products characterized by GIs based on historicity, typicity, and tradition (Barham and Sylvander, Reference Barham and Sylvander2011; Giovannucci et al., Reference Giovannucci, Timothy, Kerr, O'Connor and Yeung2009). However, other studies have also classified GIs as either club goods (Langinier and Babcock, Reference Langinier and Babcock2008; Thiedig and Sylvander, Reference Thiedig and Sylvander2000) or common-pool-resources (CPRs) and thus as commons (Fournier et al., Reference Fournier, Biénabe, Marie-Vivien, Durand, Sautier and Cerdan2018; Quinõnes-Ruiz et al., Reference Quiñones-Ruiz, Penker, Belletti, Marescotti, Scaramuzzi, Barzini, Pircher, Leitgeb and Samper-Gartner2016). Each case involves specific properties of knowledge and informational resources attached to geographical names (Frischmann et al., Reference Frischmann, Madison and Strandburg2014). In his article, Rayamajhee (Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020) also reminded us that Ostrom's taxonomy is not static and ontologically given; instead, it is the result of the biophysical attributes of goods (or services) on one hand, including the geographical characteristics that create different sets of challenges for the production and provision of these goods and services, and on the other hand the de facto or de jure property rights affecting collective action (Ostrom, Reference Ostrom2003). Threshold effects can exist, depending on legal or informal property regimes and enforcement costs (Schlager and Ostrom, Reference Schlager and Ostrom1992). These effects are contingent upon technology and institutions, which can be continuously transformed (Aligică and Boettke, Reference Aligică and Boettke2009; Rayamajhee, Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020).

In his analysis, Rayamajhee (Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020) also contended that it is possible to introduce more fluidity into the 4 × 4 matrix of Ostrom's classification by defining varying degrees on the excludability/subtractability continuum rather than boxing them in specific quadrants, depending on the technological and institutional parameters. In Figure 1, geographical names can be viewed either as part of the public domain (quadrant A) at time t ₁ or transformed at time t ₂ into private goods after being registered as individual trademarks (quadrant D) or at time t ₃ as collective trademarks – thus falling into the category of ‘club goods’ (quadrant C) – or even at time t ₄ after being registered as EU sui generis legal regime on GIs, taking the form of the inalienable and collective, but regulated, rights of use of a geographical name through their registration as EU GIs (quadrant B). The nonzero costs of delineating property rights introduce thresholds between categories, depending on legal rules and related enforcement costs (Allen, Reference Allen2002; Demsetz, Reference Demsetz1967).

Figure 1. Geographical names as public, private, or common-pool resources.

Figure 1 also illustrates the creation of GIs as a legal regime shift that opens an additional legal solution to fill the gaps and caveats created by existing trademark laws when the collective coproduction of typical quality products, as defined by GIs regulations, is needed to ensure their provision. A legal regime shift, similar to the shift introduced through the creation of legislation on GIs, does not simply affect specific goods or services but an entire class of goods or services (Rayamajhee and Paniagua, Reference Rayamajhee and Paniagua2021: 82). For instance, a regime shift, as shown in Figure 2, entails not only that goods or services move across boxes/quadrants in the goods classification table but also that the lines (separating the types themselves) become blurry or flexible (Rayamajhee, Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020: 20).

Figure 2. Dynamic Ostrom's classification adapted from Rayamajhee (Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020).

In Figure 2, we assume a continuum of N feasible configurations of good I in the matrix with varying probability P_i, such as ∑^{N –1} _i = P P_i = 1 for each A_i defined by institutional parameters with a probability P_t influenced by a complex interplay of biophysical, technological, and geographical factors. Here, A ₀ is the original position of the good at a specific period. Alternate positions in A_1p, A_2p, and A₃ constitute other feasible configurations. Depending on the legal regime adopted, A_i can move from A ₀ to A ₁, A ₂, or A ₃ with probability P_i′, P₂′, P₃′. The position of geographical names in the matrix is influenced by the risk of undue appropriation, subject to their relative value and the level (and costs) of protection and enforcement defined by the different legal regimes (Allen, Reference Allen2002).

When the value and reputation of a geographical name is enhanced, the risk of undue appropriation is greater, unless specific de facto or de jure rules facilitate their protection. Depending on the legal regime, L_Et and L_St can shift from their initial positions (L_{H 0} and L_{V 0}) to new positions with probabilities P_{x 4}, P_{x 5}, P_{x 6} and P_{x 7}. For each L_Et and L_St, ∑_t P_tx = 1. First, entitling producers of GIs to specific use rights, represented by L_{s 0} and L_{s 1} (the horizontal axis in Figure 2), can facilitate the joint coproduction needed to maintain shared collective knowledge and natural resources, or prevent excessive consumption over time (Ostrom and Ostrom, Reference Ostrom, Ostrom and Savas1977). Second, specific governance rules can be adopted in response to a gradual situation ranging from easy to difficult excludability, represented by L_{e 0} and L_{e 1} (vertical axis in Figure 2); moreover, these rules are needed to maintain cooperation among group members and reduce potential free-riding by insiders or outsiders (Olson, Reference Olson1965; Ostrom, Reference Ostrom1992).

2.3 Geographical indications: a positive ontological approach to the public domain

At a more fundamental level, Figure 1 illustrates Boyle's (Reference Boyle2003) argument that the public domain, and more generally open-access resources, can lack effective rules and thus define property rights by default. The absence of adequate enforcement policies tends to reify negative aspects in a context in which the public domain remains vulnerable (Boyle, Reference Boyle2003). Thus, a possible ‘tragedy of the commons’ (Hardin, Reference Hardin1968) becomes less relevant than a ‘tragedy of the public domain’; e.g. a negative definition of the public domain that refers to ‘non-occupied spaces as de facto dedicated to property rights domains and as spaces that have still not been appropriated’ (Coriat, Reference Coriat2015). Thus, adopting a positive ontological approach to the ‘public domain’ through the creation of ‘commons’ appears as an alternative that prevents the privatization of specific goods or services (Boyle, Reference Boyle2003; Coriat, Reference Coriat2015).

From this perspective, we argue that the growing adoption worldwide of IP laws on GIs can be analyzed as a pragmatic response to the increased judicial fragmentation and imperfect legal enforcement created by trade globalization and as an attempt against potential infringement and undue private appropriation. Legislation on GIs provides a legal framework to protect the longstanding collective effort of local communities to develop and maintain their specific local collective knowhow over time and the ‘specific features’ of their quality products recognized by consumers and contributing to their collective reputation capital (Stanziani, Reference Stanziani2004). The rationale for the legal protection of GIs thus appears very similar to the classical economic analysis of trademark law by Landes and Posner (Reference Landes and Posner1987).

To act as a quality and perform this economizing function in the face of consumers, a brand name must not be duplicated and must be differentiated enough to prevent consumers from being confused (Landes and Posner, Reference Landes and Posner1987: 269). A brand name provides incentives to invest resources not only to maintain quality but also to invent new words and other signifiers such as symbols and specific ‘design features’ – for example, the shape and color of the ‘Perrier bottle’. These strategies enhance the stock of words referring to ‘things’ and of generic words that denote entire products and that may in turn even become generic names (Landes and Posner, Reference Landes and Posner1987). Without protection, a free-riding competitor could, at little cost, capture some of the profits associated with a strong trademark and eventually destroy the information and knowledge capital embodied in that trademark, as well as past investments made by the producers in the reputation of the brand (Brauneis and Schechter, Reference Brauneis and Schechter2006; Klein and Leffler, Reference Klein and Leffler1981). Establishing de facto or de jure property rights is nevertheless costly and thus depends on expected product value and benefits for producers, which are subject to available enforcement costs and threats of undue appropriation (Allen, Reference Allen2002; Demsetz, Reference Demsetz1967).

A detailed analysis of the effects of infringement is provided by Landes and Posner (Reference Landes and Posner1987: 302) who showed that the likelihood of confusion and misleading information, as a form of undue appropriation, can affect both consumers and producers. Let us consider two producers: A with a stronger reputation and B producing different brands of product X. If not prevented, producer B's infringement harms consumers through the elimination of A's incentives to produce more valuable products with lower search costs for consumers and producers; B's infringement also harms AFootnote ⁵ through a reduction in the price and quantity of goods sold by A. Preventing infringement and loss in value is thus a critical issue for producer A, who is subjected to the fact that his or her expected benefits exceed the enforcement costs (Allen, Reference Allen2002; Demsetz, Reference Demsetz1967). Whereas geographical names with low reputation may remain in the public domain, those with greater notoriety among consumers may require additional legal protection, such as the protection provided by the EU legislation on GIs and the regulation against possible usurpation, confiscation, or undue trademark registration.

2.4 GIs as shared common property: club good versus CPR?

The classification of GIs as club goods (or club assets) or as CPRs has recently emerged as a major source of policy debates, as club goods are subject to the suspicion of collusive and anticompetitive practices with possible negative effects on the welfare of consumers and producers. Indeed, collective action facilitates the realization of economies of scale and economies of scope in the provision of public or collective goods that would otherwise be unreachable for individuals (Ostrom and Ostrom, Reference Ostrom, Ostrom and Savas1977). A number of studies have suggested that the adoption of GIs contributes to the competitive provision of quality goods (Moschini et al., Reference Moschini, Menapace and Pick2008). However, when joint coproduction is needed, Rayamajhee (Reference Rayamajhee, Boettke, Herzberg and Kogelmann2020: 22) also stressed that there is a tendency for goods and services to move away from the classic private‒public diagonal toward a club-CPR diagonal (see Figure 1), as is the case for GIs. The distinction between the two interpretations of GIs – either as club goods or as CPRs – has key policy implications.

Inspired by the theory of clubs developed by Buchanan (Reference Buchanan1965), some studies have considered the nature of GIs as possible ‘club goods’ or ‘club assets’ based on the selective nature of GI membership in relation to the criteria of easy excludability when rivalry is at a low level (Figure 1). In line with Ostrom (Reference Ostrom2000), when a good or service is considered a club good, it can be interpreted as a means to reinforce the social norms of trust that are needed to reach quality standards (Thiedig and Sylvander, Reference Thiedig and Sylvander2000; Torre, Reference Torre2002). Unfortunately, this interpretation has not been included in policy debates (Ménard, Reference Ménard1996). Another approach to club goods has stressed that they may have negative welfare effects because they increase market prices (Benavente, Reference Benavente2013; Langinier and Babcock, Reference Langinier and Babcock2008; Marette and Crespi, Reference Marette and Crespi2003).

When interpreted as club goods, GIs have been suspected of running afoul competition laws by acting as cartels and of favoring collusive and rent-seeking behaviors by imposing price premiums, quality standards, or production quotas (such as yield restrictions) to reach the quality requirements (Mérel and Sexton, Reference Mérel and Sexton2012). In these economic models, for the sake of analytical tractability, key assumptions are based on a small set of homogenous economic actors, such as agrifood firms, thus neglecting the many small agricultural suppliers who suffer additional coordination costs and are faced with the group size paradox (Olson, Reference Olson1965).Footnote ⁶ Many historical GIs, such as Parmigiano Reggiano cheese or Bordeaux wine, do not entail small and homogenous groups of producers, instead pertaining to hundreds and even thousands of small heterogeneous agricultural producers (Thiedig and Sylvander, Reference Thiedig and Sylvander2000). As Olson (Reference Olson1965) argued, when the size of a group increases, that group becomes more likely to suffer from free-riding and individual opportunistic behaviors; therefore, specific rules are needed to overcome this possibility.

By analyzing GIs as ‘knowledge commons’, an analytical shift is thus proposed in addressing the endogeneity of Ostrom's classification (Figure 1). In this case, collective action is the endogenous solution to the CPR dilemma, subject to Olson's group size paradox (Olson, Reference Olson1965; Ostrom, Reference Ostrom1990). Instead of an anticompetitive approach, collective action and self-governance are in fact needed to reduce possible mismanagement and resource degradation (Ostrom, Reference Ostrom1990). In the next sections, we analyze how, by reconceptualizing GIs as knowledge commons, the legal and common property regimes backing European GIs, especially in France, have addressed the group size paradox, the challenges posed by collective action, and the social dilemma that has emerged in the context of trade globalization.

3.1 Governing knowledge commons: an extension to GIs

Over the last few years, the study of knowledge commons has been extended to a growing number of knowledge domains (Frischmann et al., Reference Frischmann, Madison and Strandburg2014; Hess, Reference Hess2012). In the literature, knowledge in its intangible form has usually been analyzed as falling into the category of a ‘public good’ because it is difficult to exclude people once someone has made a discovery, such as in the case of language, mathematics, or scientific knowledge. However, acquiring and discovering knowledge is also a cumulative and highly distributed process involving both a social process and a deeply personal process (Polanyi, Reference Polanyi1958). This cumulative effect constitutes a public good, as long as people have access to the vast storehouse of knowledge and have the cultural heritage and knowledge capital required to maintain it over time (Hess and Ostrom, Reference Hess and Ostrom2003, Reference Hess and Ostrom2007; North, Reference North2005). However, knowledge coproduction is also a costly process (Hess and Ostrom, Reference Hess and Ostrom2007). The centrality of coproduction is foundational in Ostrom's classification, as reiterated by Rayamajhee and Paniagua (Reference Rayamajhee and Paniagua2021), and it requires the active engagement of those who are endowed with the knowledge and ability to minimize the costs of knowledge coproduction and sharing.

The study of knowledge commons by Hess and Ostrom (Reference Hess and Ostrom2007) and its extension by the GKC framework (Frischmann et al., Reference Frischmann, Madison and Strandburg2014) have introduced a paradigm shift by considering the new challenges faced by scholarly knowledge and formal systems of property rights, especially in the context of digital technologies, which has created a threat of a second enclosure of the ‘intangible commons of the mind’ (Boyle, Reference Boyle2003; Frischmann et al., Reference Frischmann, Madison and Strandburg2014; Hess and Ostrom, Reference Hess and Ostrom2007). The characterization and extended map of ‘knowledge commons’ as defined by Hess (Reference Hess2012) includes ‘all the shared collective knowledge resources, a complex knowledge ecosystem that is created and shared by a group of place-based local communities, and subject to social dilemmas’ (p. 3). That map also includes all forms of ‘shared understanding gained by experience or study’ as well as ‘useful knowledge, whatever the forms in which they are expressed or obtained’ (Hess, Reference Hess2012: 14), i.e. Indigenous, traditional, vernacular, scientific, cultural, and creative works. In the recent literature, the study of traditional natural and agrarian commons has been disconnected from studies on knowledge and cultural commons (Frischmann et al, Reference Frischmann, Madison and Strandburg2014; Hess, Reference Hess2012). A broader approach was thus proposed by Hess and Ostrom (Reference Hess and Ostrom2007: 14), by considering knowledge commons as knowledge ecosystems defined as the models of collective action and self-governance in which these ecosystems are nested and their interactions with the complex natural and socially constructed environments (Frischmann, Reference Frischmann2012: 127; Frischmann et al., Reference Frischmann, Madison and Strandburg2014; Hess, Reference Hess2012; Ostrom, Reference Ostrom2009).

Adopting the vision of knowledge commons as knowledge ecosystems, Frischmann et al. (Reference Frischmann, Madison and Strandburg2014) defined as the ‘institutionalized community governance of the sharing […], creation, of information, science, knowledge, data, and other types of intellectual and cultural resources’ (p. 3). Participants must not only share existing resources but also engage in a set of generative practices, in maintaining, sharing and producing situated knowledge resources (Madison et al., Reference Madison, Frischmann and Strandburg2010) that are both intangible and material, e.g. ideas, discrete cultural artifacts, and facilities (Hess and Ostrom, Reference Hess and Ostrom2003; North, Reference North2005; Ostrom, Reference Ostrom2005). They form what Douglas North (Reference North2005) called the ‘artifactual structure’ and the sociomaterial environment of thinking facilitating collective learning and knowledge transmission. The essential questions are also closely connected to equity, efficiency, and sustainability (Hess and Ostrom, Reference Hess and Ostrom2007: 6). The question is how to blend systems of rules and norms related to these new commons to guarantee general access to the knowledge that empowers humans while ensuring recognition and support for those who create that knowledge in its various forms.

3.2 GIs as a shared coevolving natural and cultural heritage

In the literature, the protection of GIs has often been restricted to the protection of their collective reputational capital without consideration of the importance of the specific natural and knowledge ecosystems and the role of local communities in first creating and maintaining collective local knowhow over time (Fournier et al., Reference Fournier, Biénabe, Marie-Vivien, Durand, Sautier and Cerdan2018). The statutory definition of GIs was developed in France by the INAO (Institut National des Appellations d'Origine), and extended to the EU context and adopted by international organizations, such as the OIV (International Organization of Vine and Wine).Footnote ⁷ This statutory definition by the OIV includes the idea of shared ‘collective knowledge’ that has been developed by a group of human actors through the specific definition of ‘terroir’, making GIs good potential ‘knowledge commons’.

The term ‘terroir’ is defined by the INAO as follows: ‘a specific geographical area where production takes its originality directly from the specific nature of its production area. Terroir is based on a system of interactions between physical and biological environments and a set of human factors within a space that a human community built during its history with collective productive knowledge. There are elements of originality and typicality of the product’. These elements coincide with what Landes and Posner (Reference Landes and Posner1987) called the specific ‘design features’ in trademark law. Like in other IPR regimes supporting patents or trademarks, the registration and protection of GIs thus requires noteworthy and distinctive features defined and codified within the ‘codes of practice’ (‘cahier des charges’ in French, or ‘product specifications’ in Art 7 in EU regulationFootnote ⁸), which include a number of minimum standards about the agricultural practices to be applied by farmers to prove distinctiveness and to legitimize the legal protection of these products (Barham and Sylvander, Reference Barham and Sylvander2011).

In the case of GIs, the distinctiveness principle has been conceptualized through the concept of ‘terroir’, influencing the ‘typicity’ or ‘typicality’ of agricultural and food products through the complex and intimate combination of cultural and natural resources in relation to local environment and by extension their specific SES, as defined by Ostrom (Reference Ostrom2009). This statutory definition of GIs fits perfectly with the concept of ‘knowledge commons’ refined by Hess (Reference Hess2012) as the combination of (i) cultural resources, such as the informational and knowledge resources that are collectively created, owned, and shared across and within communities and (ii) the natural resources accessible to the members of a society, including natural materials such as air and water. The study of GIs thus expands the GKC research program on knowledge commons (Frischmann et al., Reference Frischmann, Madison and Strandburg2014) by combining the IAD/SES frameworks (Cole et al., Reference Cole, Epstein and McGinnis2019) applied to agroecosystems viewed as human-made cultural/natural artifacts and their SES in relation to natural commons, such as biodiversity, soil, landscape, climate, and water management (Frischmann, Reference Frischmann2012; Hess, Reference Hess2012; Mazé et al., Reference Mazé, Calabuig Domenech and Goldringer2021; Ostrom, Reference Ostrom2009).

In the literature, agricultural knowledge has often been viewed as traditional (Dagne, Reference Dagne2014). However, farmers are also key innovators who adapt their agricultural practices and take advantage of their local environment through ingenious innovations. Local farmer groups form both ‘communities of practice’ and ‘epistemic communities’ defining knowledge ecosystems in which farmers share practices and knowledge, as well as an identity-based history that goes beyond individuals (Mazé et al., Reference Mazé, Calabuig Domenech and Goldringer2021).Footnote ⁹ Within the GKC framework, generative practices of coproducing, creating, and preserving shared common knowledge require the active participation and collective engagement of individuals (Frischmann et al., Reference Frischmann, Madison and Strandburg2014; Madison et al., Reference Madison, Frischmann and Strandburg2010). It thus introduces a paradigmatic shift capturing not only the collective and shared reputation but also the collective investments made to maintain the coevolution of the natural and cultural heritage, and the specific knowhows and ‘designed features’ that have been developed over time by a group of people in a specific place. This evolution is clearly reflected in the 2012 EU regulation (Reg 1151/2012), where GIs appear as a means of protecting the ‘living cultural and gastronomic heritage, as GIs are part of the EU culture, its traditions and its heritage’.

3.3 GIs as a response to the threat of undue private appropriation

In the European context, the reputation of products protected by GIs was built over time by groups of producers based on local or long-distance consumer demands, a collective reputation-dedicated investments by local communities to sustain their distinctive knowhows (Meloni and Swinnen, Reference Meloni and Swinnen2018; Stanziani, Reference Stanziani2004). In France, Stanziani (Reference Stanziani2004) showed that legislation pertaining to GIs first emerged at the end of the 19th century to resolve repeated litigation between wine producers and traders about the use of local geographical names in the Bordeaux region and other places in France. Instead of privatizing geographical names, the legal protection provided by GIs thus acts primarily as a common umbrella branding, defining broad product styles (e.g. in the case of Bordeaux or Burgundy wines) recognized by consumers. At that time, a major issue emerged with respect to a small number of legal cases concerning the undue private appropriation of place names through trademark registration, conflicts between grape growers and traders (especially in the Bordeaux area), the threat posed by the transformation of GIs into generic names, and the risk that they be progressively commodified (Stanziani, Reference Stanziani2004).

The two main questions for the local French judges who had to settle litigation concerning Bordeaux wines were the following: (i) what are generic names (with regard to geographical origin and place names)?Footnote ¹⁰ Once a trademark becomes generic and falls into the public domain, the protection ceases. The threat that a place name could become a generic name unless specific action is taken represents a nontrivial issue in the context of trademark law (Landes and Posner, Reference Landes and Posner1987). (ii) What defines the collective trademark (in relation to product characteristics) and possible wine blending – ‘mélanges’ – as a possible source of confusion for the consumer? Defining a trademark requires a high degree of expertise and involves technical aspects that can impose limitations on the judges' evaluation and create legal insecurity, due to variable judicial outcomes that lead toward an ex-ante regulation that provides more precise guidelines for and definitions of expected product specifications.

In the French context, the creation of legislation on GIs thus facilitated the shift from a pure judicial approach with an ex-post resolution of litigation by judges, as currently applied in common law countries, to an ex-ante state-controlled registration system and the creation of a dedicated public agency, the National Committee for Origin Appellations (CNAO in French),Footnote ¹¹ renamed the INAO in 1947. This public agency has helped prevent conflicts between contemporary traders and growers and resolve related political struggles, thus reducing litigation and political transaction costs. The adoption of GIs legislation reflects the classic tradeoff in law and economics between the vagueness of the law and the costs of ex-post litigation created by legal uncertainty about the outcomes of litigation (Kolstad et al., Reference Kolstad, Ulen and Johnson1990).Footnote ¹²

3.4 A shift in form from ex-post trademark litigation to ex-ante regulation

Analyzing the way GIs have been organized and regulated in France and later extended at the EU level provides interesting insights into how knowledge commons can contain typical threats, such as commodification, degradation, and unsustainability (Hess, Reference Hess2012). Collective brand names can help reduce the individual cost of investments in reputation capital for small agricultural producers via the backing of the collective reputation that remains more subjected to possible free-riding and requires specific enforcement. A major issue when developing a common property regime for GIs is the ways in which the group size paradox identified by Olson (Reference Olson1965) and the related social dilemma of collective action (Ostrom, Reference Ostrom1990) are addressed. The legal recognition of GIs in France is organized through a complex set of nested organizational and institutional rules identified by Bingen (Reference Bingen2012) around three main distinctive features:

1. i) The characterization of the typicity of place-based products, which combines natural and cultural factors, as defined by ‘product's specifications’ (Art 7 Reg 1151/2012) that establishes the links between the product's attributes and its ‘terroir’ from which it emanates and defines its distinctiveness. As in the case of other IPR tools, knowledge codification, as a coordinating artifact, plays a double role, first in defining what the parties agree to comply with and then in facilitating cooperation in the building, sharing, and preservation of traditional knowledge, as well as in fostering peer-to-peer collective learning processes over time (Cowan et al., Reference Cowan, David and Foray2000; Frischmann et al., Reference Frischmann, Madison and Strandburg2014; Mazé, Reference Mazé2017).Footnote ¹³

2. ii) The collectivity, through collective organization of producers, is perceived as a masterpiece of GIs. This principle entails the collective self-governance of GIs and is central in the way in which collective rules balance the power among producers, traders, and large agrifood firms, which are often placed in a monopsonistic position toward their suppliers. The role of collective action also contributes to building shared social norms of cooperation and reciprocity among members (Ostrom, Reference Ostrom2000).

3. iii) The governmentality principle refers to supervision by public authorities. In the French context, these authorities include a dedicated public agency, the INAO, which is in charge of supervising GIs and provides a stronger protection statusFootnote ¹⁴ and added guarantees to consumers about product integrity and identity against possible fraud and quality defects, as well as to producers of GIs by acting as an official collective umbrella brand that reduces the level of initial investment needed to build shared knowledge and reputation capital.

Through the adoption of these specific constitutional and collective rules, regulations over GIs contribute to the rebundling and repackaging of related goods and services, including knowledge resources (Rayamajhee and Panaguia, Reference Rayamajhee and Paniagua2021: 80). The stronger protection status provided by this governmentality principle is a central piece in the governance of GIs in France, thanks to the specific role played by the public agency, the INAO, since its creation in 1947. The INAO plays a key role in adjudicating and actively fostering what Bingen (Reference Bingen2012) called ‘a meaningful democratic culture to advocate and defend the interests of producers and consumers of place-based products’. The participatory governance adopted by the INAO has involved the participation and stewardship of producers of GIs in national committees, as well as the building of shared common knowledge and social norms (Olson, Reference Olson1965; Ostrom, Reference Ostrom1990, Reference Ostrom2003). Thus, the common property regime defined by GIs in France can be viewed as a type of egalitarian contract taking the form of shared access, which solves not only incentive problems but also allocation problems and value-sharing among members (Allen, Reference Allen1991, Reference Allen2002). Whereas the emergence of GIs in France remains a major historical benchmark, the growing adoption of GIs worldwide has yielded more diversified models of regulation and collective action than the original model (Marie-Vivien and Bienabé, Reference Marie-Vivien and Biénabe2017).