Food culture clash: EU, US conflicting concepts for GIs; both covet Asian market
IP Watch | 29 May 2013
Food culture clash: EU, US conflicting concepts for GIs; both covet Asian market
By Catherine Saez, Intellectual Property Watch
Geographical indications were born in Europe and still remain a widely used means to protect products from a particular region, with particular characteristics. The European Union has been a strong advocate of GIs in international negotiations, while their efforts have been countered by countries such as the United States which favour a trademark system. Now both sides are trying to impose their views through bilateral trade agreements, including with each other, according to speakers at a recent conference. And now a US trade association for generic names is raising concerns in Europe.
Organised by the Organization for an International Geographical Indications Network (oriGIn) and the Association of European Regions for Products of Origin (AREPO), the conference in Bordeaux, France gathered a number of experts to consider “Geographical Indications in the 21st Century.”
Bernard O’Connor, European lawyer for NCTM Studio, an Italian law firm, said the EU and the US were both seeking to promote their different approaches, in particular in Asia, through bilateral trade agreements. One of the reasons for this strategy is the absence of consensus on the subject at the World Trade Organization in the context of the Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Some countries are included in both EU and US bilateral agreements, he said. For example, the EU is engaged, or has bilateral agreements, with South Korea, Singapore, Malaysia, and Vietnam, while the US is negotiating the Trans-Pacific Partnership (TPP) agreement, which includes Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and soon to be joined by Japan, he said. The US also has a bilateral agreement with South Korea.
In the case of South Korea, O’Connor said in a paper to be published shortly, the GI provisions in the IP chapters of the two trade agreements show substantial differences, which is placing South Korea in a difficult situation if the country is to respect and apply both agreements.
The paper also points out that Singapore agreed to establish a GI register, and that Malaysia and Vietnam already established GI registers “along the lines of the EU system.” These three Asian countries are also part of the TPP. According to O’Connor, other countries engaged in the TPP recognise GIs.
During the conference, O’Connor said that the GI definition in the TPP and the US-South Korea agreement provide that “a sign or combination of signs (such as words, including geographical and personal names, as well as letters, numerals, figurative elements, and colours including single colours), in any form whatsoever, shall be eligible to be a GI.”
This definition, according to the paper, is closer to a trademark definition, than to GIs and “is in sharp contrast to the idea of GIs in the EU.” Among examples, the paper notes Article 2.18 of the TPP, referring to recent draft texts leaked by civil society organisations, which “allows a GI which is generic in the territory of a third member but not generic in the territory of the GI’s origin to be refused as a GI.”
“The TPP IP rights chapter contains a number of provisions, which appear to be directly targeted against EU GI philosophy and efforts in Asia,” the paper states. At the conference, O’Connor said the new EU-US Trans-Atlantic Trade and Investment Partnership (TTIP) might be the occasion to “take a step back” and for the two parties to negotiate the agreement in a coherent way.
EU Not Consistent in Bilateral Agreements, Speaker Says
O’Connor also said the EU is showing a lack of coherence in its different negotiations of bilateral agreements, with a different definition of GIs from one agreement to the next. He also said that the way EU members negotiated bilateral negotiations was detrimental to GIs.
According to O’Connor, the European Commission implicitly asks EU member states to select a small number of GIs in which they have a particular interest, to streamline the list of GIs in the agreement, in order to avoid “frightening” the other negotiating party or parties with thousands of GIs to protect.
As a result, he said, in some 20 bilateral trade agreements, the list of protected GIs is different. This is diminishing the very concept of GIs, he said.
What should be asked, he said is, “Do you, or do you not, accept that there is a form of intellectual property called geographical indications?” If you accept, then “there is a concept of geographical indications, then let’s sit down and protect them all.” In some cases, he added, “we might have to back away. There are some exceptions, there are some difficult cases, but the vast majority are not difficult cases and they should all be protected,” he concluded, followed by a round of applause.
Worry Over US Consortium for Generic Names
Several speakers who are members of oriGIn expressed concerns at the conference about the US Consortium for Common Food Names, which they said, is trying to push a number of what they consider as generic names to be included in free trade agreements.
The consortium claims to be supportive of “proper geographical indications” but “opposes any attempts to monopolize common (generic) names that have become part of the public domain,” according to the consortium’s website The notion of public domain often refers to protected works or ideas that have come to the expiration of their intellectual property protection.
The executive director of the consortium is Jaime Castaneda, from the US Dairy Export Council, and its chairman is Errico Auricchio, from BelGioioso Cheese, Inc.
The group provides a list of “names at risk” including a large number of cheeses and processed meat. O’Connor said about one-third of the names contained in the list are not GIs.
Patrick Kole, vice-president for the legal and government affairs for the Idaho Potato Commission, said that in the US there is a firm opposition to GIs from large producers and supplier groups. While the US government shows little interest in discussing GI protection, he said, there is limited participation from those who could benefit the most from this protection, in particular small groups of producers.
