GIs Beyond Wine: Time to Rethink the Link?

IIC - International Review of Intellectual Property and Competition Law, Feb 2017

Dev S. Gangjee

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GIs Beyond Wine: Time to Rethink the Link?

IIC GIs Beyond Wine: Time to Rethink the Link? Dev S. Gangjee 0 1 0 Published online: 22 1 D. S. Gangjee (&) Associate Professor Faculty of Law, University of Oxford , Oxford , UK 1 Wine as the Epistemological Model Despite claims to universalism and open-endedness, intellectual property regimes have tended to develop around specific archetypes of subject matter. If literary and artistic works provided the basic template for much of copyright's structure and doctrine, wine has formed the subject matter kernel for sui generis geographical indication (GI) regimes in the EU. In turn, the EU's regimes have proved influential around the world, exporting the intoxication with this particular subject matter. A question which remains (strategically) neglected is this: to what extent can a regime designed around the particularities of wine be adapted to accommodate cheese, charcuterie, coffee as well as crafts and textiles? With exquisite irony, GI law lacks a reliable map when it comes to appropriate subject matter. The prototype of wine has undeniably shaped the norms, form and substance of sui generis GI systems. In epistemological terms, it has been ''in vino veritas'' for some time. This category of subject matter has been distilled and decanted into the distinctive link between product and place, which sets GIs apart as a separate category of IP. According to the TRIPS Agreement, a GI is a sign which indicates that a good originates ''in the territory of a [WTO] 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'' (Art 22.1). This ''essentially attributable'' link was initially conceived in the context of legislative and administrative experiments relating to French wine regulation across the 19th and 20th century, informed by notions of terroir. While the precise connotations of terroir have fluctuated over time, it functions as a cipher for the influence of - geographical origin on the end-product?s quality.1 As one leading scholar of the concept describes it: ??Historically, terroir refers to an area or terrain, usually rather small, whose soil and micro-climate impart distinctive qualities to food products. The word is particularly closely associated with the production of wine.??2 This type of causal relationship ? where the physical geography factors within a region leave their distinctive traces upon the end product ? is reflected in the TRIPS definition of a GI. In the regulatory context, a wine would be genuine or authentic if its terroir was truthfully indicated on the label. 2 The Work that Wine Did The early GI regimes that arose were considerably influenced by a particular vision of this archetypal subject matter.3 The law was designed around wine in specific ways. (1) Take the subject matter definition: only those products which can demonstrably verify that (a) a specific region of origin causally influences (b) the typical or distinguishing features of that product deserve to qualify for protection. If the causal narrative requires product quality to be influenced by physical geography, then olives or oranges seem similar enough to grapes to qualify for protection. A reputed regional honey may also fit this paradigm, where its organoleptic qualities and flavour can be objectively traced to the distinctive local wildflowers, which have sustained bees in the region. (2) Terroir thinking also informs the process of drawing a boundary around a region of origin. According to this logic we should be looking for the homogenous features of soil, climate, elevation and so on, which define a parcel of land and set it apart. Physical geography features provide compelling guidance when drawing appellation boundaries. (3) The distinctive or even unique relationship between product and place also normatively grounds the broad scope of protection found in sui generis GI regimes, where any evocation or claims to equivalence (Champagne-style wine) are considered illegitimate. If unique places produce unique products, then how can outsiders claim meaningful equivalence for their competing products? According to this view, any such referencing either misleads consumers or misappropriates the image of the regional product. This also potentially explains the existence of a rule which prohibits any generic use after a GI has been legally recognised. If the unique features of place which give the product its ??typicity?? cannot be replicated elsewhere, then why should the external product use the same name? Each of these aspects can be critiqued ? does physical geography in fact help us to draw neatly bounded regions 1 DW Gade, ??Tradition, Territory, and Terroir in French Viniculture: Cassis, France, and Appellation Contro?le?e?? (2004) 94(4) Annals of the Association of American Geographers p. 848; C Van Leeuwen and G Seguin, ??The Concept of Terroir in Viticulture?? (2006) 17 Journal o (...truncated)


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Dev S. Gangjee. GIs Beyond Wine: Time to Rethink the Link?, IIC - International Review of Intellectual Property and Competition Law, 2017, pp. 129-133, Volume 48, Issue 2, DOI: 10.1007/s40319-017-0556-3