Willemien Viljoen, tralac Researcher, discusses the need for clarification on mutually agreed provisions concerning the use of geographical indications in trade agreements

The protection offered by geographical indications (GIs) for products of a specific quality and reputation originating in a certain region are a main feature of modern trade agreements. Most notably, GI protection forms an integral part of bilateral and regional trade negotiations with the European Union (EU). However, the Unites States (US) has become increasingly critical of the extent to which GIs are protected in recently concluded EU trade agreements, including the SADC-EU Economic Partnership Agreement, and GI coverage proposed in ongoing trade negotiations between the EU and China, Japan, Mexico and MERCOSUR countries.

The use of GIs benefits the producers of these protected products; GIs are commercially valuable, they give recognition to mainly wine, spirits and agricultural products due to their distinctiveness, differentiating them from similar products in the market place. GIs offer intellectual property right protection against infringements, unfair competition and misleading labels. The extensive GI protection utilised by the EU in trade agreements is becoming an increasingly contentious issue for US producers of wine, cheese and cold meats. The producers have raised concerns that the protection of certain GIs is a way for the EU to monopolise markets and use intellectual property rights as a means for unfair trade protectionism. These concerns are based on two main arguments:

• Some GIs are used to protect common single names like feta, gorgonzola and prosecco wine; and

• Uncertainty about the protection of generic terms restricted, because it is included in compound GI names. For example, the protection of mozzarella due to the term included in the GI Mozzarella di Bufala Campana, prosciutto because it forms part of the GI Prosciutto di Parma and cheddar as part of the GI West Country Farmhouse Cheddar.

The latter concern has raised some interesting questions about the extent to which a component of a compound GI name deserves protection. This has not been clarified by numerous past EU trade agreements and this has created confusion and led to market restrictions. A lack of distinct clarification of this matter in trade agreements leaves it open to interpretation by the implementing parties. However, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) might offer some guidance on the matter. The TRIPS Agreement defines a GI as being ‘a product from a region where a given quality, reputation or other characteristic is essentially attributable to its geographical origin.’ Accordingly, components of a compound GI can be interpreted as only deserving protection when it forms part of the whole GI as designated in the agreement and not when it is only used as a generic component. The generic component cannot be attributed to a specific geographical origin and thus does not deserve protection. Furthermore, by including a compound GI, like West Country Farmhouse Cheddar and not the common generic name cheddar can indicate that the spirit of the GI protection was not intended to afford protection to a generic component, but only to the common name cheddar when it is from the indicated geographical origin. However, these interpretations are yet to be tested by any designated dispute settlement authority. To limit the discretion of parties to widely interpret the level of GI protection the best approach is to include mutually agreed provisions clarifying these matters in the Agreement. This is currently what the US Consortium for Common Food is lobbying China, Japan and Mexico to consider including in the agreements under negotiations with the EU. The Consortium is concerned that leaving the protection of components of compound GI names open to interpretation will close these markets for US exports of products like prosciutto, mozzarella, parmesan, romano and cheddar. The Consortium is urging the inclusion of a provision like Article 18.34 of the Transpacific Partnership Agreement (TPP) which states that ‘an individual component of a multicomponent term that is protected as a geographical indication in the territory of a Party shall not be protected in that Party if that individual component is a term customary in the common language as the common name for the associated good.’ Such clarification should be considered by all countries going into future trade agreement negotiations which include extensive GI protection to ensure a variety of supply sources throughout the value chain.

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Sources:

International Dairy Foods Industry. 2017. EU pushes protection of common cheese names in China. http://www.idfa.org/news-views/headline-news/article/2017/06/21/eu-pushes-protection-of-common-cheese-names-in-china

Johnson, R. 2017. Geographical Indications (GIs) in US food and agricultural trade. https://fas.org/sgp/crs/misc/R44556.pdf

USAgNet. 2017. Names for Popular Meats, Cheeses Threatened by China-EU Agreement. http://www.wisconsinagconnection.com/story-national.php?Id=1595&yr=2017

World Trade Organization. 2017. TRIPS Agreement. https://www.wto.org/english/docs_e/legal_e/27-trips.pdf