Dr Melissa de Zwart, Law School, University of Adelaide
Dr Melissa de Zwart, Associate Professor in the University of Adelaide’s Law School is researching the highly topical and contentious, even emotive subject – both globally and locally – of Geographical Indications (GIs). Working in the wine arena, I am familiar with the GIs as set by Wine Australia, and I expect most wine aficionados to have noticed that we no longer use terms such as port, sherry, burgundy, or champagne to describe our wines, since they are regional names in Europe. Melissa looks at the legal process leading to these changes and the wider issues surrounding the possibility of extending this system to foodstuffs and beyond, and where each global player stands on the subject, with poignant examples taken from the South Australian experience. The answers are not straightforward as you will see!
The full discussion will be released as a chapter entitled: ‘Geographical Indications: Europe’s strange chimera or developing countries’ champion?’ in the book entitled Law of Reputation and Brands in the Asia-Pacific Region (forthcoming, Cambridge University Press). The book looks at what makes the Asia-Pacific region distinctive in its response to issues arising from branding and the use of signs in marketing, contributed to mostly by lawyers and economists.
According to Greek mythology, a chimera was a fire-breathing monster with the head of a goat, the body of a lioness, and a tail with the head of a snake. This bizarre mismatch of a creature has come to symbolise a mismatch of components. For GIs the components are politics, marketing, history, agricultural features and quality control.
What exactly are GIs?
The definitions of GIs are not consistent and the interpretations are not watertight. Consequently, as Handler (2006) states, GIs are “the form of intellectual property that does not command universal respect”. As Melissa states in her paper, “Unlike other intellectual property rights, such as copyright, patents and trade marks, which have a relatively settled, albeit occasionally controversial, underlying rationale, GIs rest upon an uncertain and contested basis.” In fact she says that GIs may not even strictly be intellectual property (IP) rights, but more of a “hybrid” of IP, and agricultural and trade policies and regulations.
The definition of GIs in the relevant Australian legislation (the Wine Australian Corporation Act ) is:
“geographical indication, in relation to wine goods, means an indication that identifies the goods as originating in a country, or in a region or locality in that country, where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin”
However, Melissa encompasses the global context in her chapter, choosing to start with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement arising from the WTO round of negotiations in Doha. This agreement, which requires member countries to provide legal protection to GIs, defines GIs as:
“Geographical indications are, for the purposes of this Agreement, 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.”
Wines and spirits are then treated differently in the TRIPS agreement, giving them greater protection, so that there any product made outside a given GI is not permitted even a reference to a varietal or type or style relating to that GI. So, for example, a wine label cannot say “made in the style of Bordeaux” or “Barossa-type shiraz”.
Origin of GIs
The TRIPS definition of GIs is based on the the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 1958. This evolved from the French system of appellation d’origine controllée (AOC), which is turn based on terroir – the delineation of an area based on climate, topography, soils and specific products from that region. It did not only refer to wine originally but the term terroir is associated largely with wine today.
Wine vs. foodstuffs
On the Wine Australia website you find see the lists of GIs and the marketing campaigns based around these GIs, giving regions a hook to represent their products to tourists and consumers. Regional Heroes is a marketing initiative that promotes Australian wine based its source region, so it seems that GIs have been interpreted and used to the advantage of our wine industry.
But! GIs relate to trade in general and have global implications. I shall not steal Melissa’s thunder but some key issues she covers include:
• The current concerns as they relate to the Old World and the New World.
• The differences and issues relating to extending GIs to food and other products.
• Will the extension of protection help or hinder developing countries?
• What determines authenticity and is it possible or desirable to introduce a definitive system of GIs for more products and regions?
Interestingly, this issue sees the Old World and New World in contrasting positions, the key players being the EU and the US. While Europe wants to expand the protection of GIs from wine to food, US wants to restrict it because they make a lot of use of these traditional names. Australia too makes use of many traditional European names, for the same reasons as the US – it was settled hundreds of years ago by Europeans who brought their crafts, traditions and language to their new homes.
Melissa raises a number of issues that show why food is different to wine in the GI debate. How do you define the correct food in terms of origin of ingredients, preparation technique, who made it, and so on. How could this be checked and enforced and would changes be allowed over time? Could this stilt innovation if not? If so, how could this be managed? It would be an understatement to say that delving deeper into these questions is opening the proverbial can of worms.
Should developing countries want GIs to support them in distinguishing their traditional products from specific regions, and possibly charge higher prices and have a greater level of protection than otherwise? Would this work? What if a country’s traditional product was hijacked by foreign companies with money to buy all of the production capacity? This happened in Mexico with tequila – with a high proportion of the country’s production being owned by US-based companies.
What determines authenticity? To use a South Australian example, if GIs were extended to food and strictly enforced, it may be that makers of traditional German foodstuffs in the Barossa area would not be permitted to use the traditional German names. Is this protecting rights or creating confusion? Is the product less authentic than the version produced in Germany because it is made in another location, irrespective of the heritage? Some argue that the Barossa versions are more authentic as they have preserved many traditional recipes and techniques. Would the definitions be set in legislation and have no flexibility to move with culture, since food is such a culture-based product?
For the full juicy insight, this book will be released in the near future. Being on the front foot, a group of food producers in the Barossa have licensed the ‘Barossa Food’ logo,: see Food Barossa Inc., Food Barossa (March 2011).
For more on GIs for Wine in Australia go to Wine Australia web page.
Melissa de Zwart’s blog may be found at Bram’s Pyre.
Michael Handler, ‘The WTO Geographical Indications Dispute’ (2006) 69(1) Modern Law Review 70–91.