Geographical Indications: Protection for Producers or Consumer Information

VI. Implications for the Profession

Let me conclude with some observations on the challenges that this matter of GIs, and the underlying notion of terroir, pose for the profession. Everyone accepts that the physical environment in which agricultural products are grown (or reared) is important to taste and other consumer attributes. The genotype is expressed as a phenotype through interaction with the environment and the farming practices. But we ignore this in production models where agricultural commodities use combinations of inputs themselves rarely differentiated. Land is land and can be used is a variety of crops or livestock enterprises: land quality may be reflected in yields, and substitution may be limited by rainfall and climate. But if the land has a demonstrable impact on the value of the output through its ability to impart consumer attributes then a different model is suggested. The land input is more than just a medium for holding the plant in place while fertilizer is applied. And differentiated products fetching widely different returns may need to be treated as sales into separate markets. Of course farmers know these matters and use their land accordingly: my point is that we may not have adequate models to mirror such a decision process.

On consumer attributes the situation is better. There has been an increase in the use of models of consumer behavior that recognize quality differences. However, few of these studies influence our trade models, other than through the blunt instrument of the Armington assumption of unexplained differences by country that limit the substitution elasticity in general equilibrium trade models. Greater and more purposive product differentiation that does not treat a country as the only unit of interest might help. This would make such general trade models more useful for analyzing issues in high value products that continue to expand as a share of the market.

If it is the case that we have inadequate models that it follows that we have little basis for policy recommendations of the appropriate strategy for increasing producer returns from the market. Nor do we know the costs and benefits from international trade rules that govern these quality-proxies in commerce. Even where models exists, much of the discussion of these issues has rested on a thin empirical base.

The economic challenges are many. First, there is a need to find ways to sort out the mix of protectionism and information provision that typifies the arguments behind GIs. This raises political economy issues of mixed-motive policy initiatives (similar to those raised by country-of-origin labeling and by health and safety codes). Is there a market test for the adequacy of consumer information? Such information given by producers of a regional good could be biased and unreliable. Can one measure the protection given by a GI? It could be that producers underestimate the ability of competing producers to position their goods to offset the local name recognition. How should one regulate GIs in an open economy? Uniform systems have transaction cost advantages, while diversity may satisfy consumer needs better. How do GIs impinge on technology transfer and innovation? Protecting traditional knowledge could stifle innovation. Excessive ties through regulation between quality and location could distort investment decisions. Political linkages with groups with other agendas (such as anti-corporate control of the food system) may lead sound product-place-quality marketing down a less profitable path. But, ultimately, consumers will reward the ability of local producers to define meaningful product attributes that reflect the “terroir” and limit the misuse of such labels to seek rents.

References

Akerlof, G. A. (1970). “The Market for Lemons: Qualitative Uncertainly and the Market Mechanism.” Quarterly Journal of Economics 84:488-500.

Anania, Giovanni, and … “Genesis, Evolution and Crisis of an Institutions,” (in publication).

Anderson, Kym and Lee Ann Jackson, (2004) “Standards, trade and protection: the case of GM crops,” paper presented to the Australian Agricultural Economics Society, Annual Meeting, Coffs Harbour, NSW

Anderson, Kym (ed.) (2004) The World’s Wine Markets: Globalization at Work, Edward Elgar

Barton, John, Judith Goldstein, Tim Josling and Richard Steinberg (2006), The Evolution of the Trade Regime: Politics, Law and Economics of the GATT and WTO, Princeton University Press

Broude, Tomer (2005). “Culture, Trade and Additional Protection for Geographical Indications”, BRIDGES, September-October, No. 9, page 20

Fink, Carsten and Kieth Maskus (2005). “The Debate on Geographical Indications in the WTO,” Chapter 16 in Trade, Doha and Development: A Window into the Issues

Hayes, D. J., S. H. Lence and A. Stoppa, 2004. “Farmer owned Brands?” Agribusiness: An International Journal, Vol. 20 (Summer): pages 269-285

Hayes, Dermot J., Sergio H Lence and Bruce Babcock, 2005. “Geographic Indications and Farmer Owned Brands: Why do the US and the EU disagree?” EuroChoices, Vol 4:2, 2005

International Policy Council (2003). “Geographical Indications,” Discussion Paper, International Food and Agricultural Trade Policy Council, August

Josling, Tim (2005). “What’s in a Name? The Economics, Law and Politics of Geographical Indications for Foods and Beverages,” Working Paper, Institute of International Integration Studies, Trinity College Dublin

Josling, Tim, Donna Roberts and David Orden (2004) Food Regulation and Trade, Institute for International Economics, Washington DC

Maskus, Keith, (2000) Intellectual Property Rights in the Global Economy, Institute for International Economics, Washington DC

Moschini, GianCarlo, 2004, “Intellectual Property Rights and the World Trade Organization: Retrospect and Prospects,” in Giovanni Anania, Mary E. Bohman, Colin A. Carter and Alex F. McCalla, Agricultural Policy Reform and the WTO: Where are we heading? Edward Elgar,

O’Connor, Bernard (2004). The Law of Geographical Indications, Cameron May, London

Rangnekar, Dwijen (2004). “The Socio-Economics of Geographical Indications: A review of Empirical Evidence from Europe,” Issue Paper No. 8, UNCTAD-ICTSD Project on IPRs and Sustainable Development

Watal, Jayashree, 2004, “Intellectual property rights and agriculture,” in Merlinda D. Ingco and L. Alan Winters, Agriculture and the New Trade Agenda: Creating a Global Trading Environment for Development, Cambridge University Press, Cambridge

WTO (1995), The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts, WTO, Geneva

WTO (2004) WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WT/L/579

WTO (2004) TRIPS: Geographical Indications, Background and the Current Situation, accessed on WTO website, www.wto.org

Zago, Angelo Maria and Daniel Pick, 2002, “A welfare analysis of European products with geographical indications and products with designations of origin,” in Barry Krissoff, Mary Bowman and Julie A. Caswell, Global Food Trade and Consumer Demand for Quality, pp 229-243, Kluwer Academic Press, New York

* The author is Senior Fellow, Freeman-Spogli Institute for International Studies, Professor Emeritus, Food Research Institute, Stanford University, and Visiting Professor at Imperial College London. Comments received from Alan Matthews and participants in seminars at the IIIS, Trinity College Dublin and the Monterey Institute for International Studies, are gratefully acknowledged, as are helpful discussions at an earlier stage with Ann Tutwiler and Stefan Tangermann.

1 The version of this paper was given at the IIIS in Dublin under the title “What’s in a Name?” That paper looked specifically at the issue of designing trade rules that may be of benefit to developing countries.

2 The proposals to extend GI protection often include handicrafts, but these issues will not be addressed here.

3 Much of the literature on GIs is focused on the legal issues of protection. The key reference is a comprehensive book on the law of GIs by O’Connor (2004) and an article making the link with cultural aspects by Braude (2005). The economic case for such protection has by contrast received much less attention. One notable exception is the study by Zago and Pick (2003). A recent paper by Hayes, Lence and Babcock (2005) also addresses the economic issues.

4 The use of geographical indications to denote husbandry practices complicates the issue somewhat as the identification of products by the way in which they are produced poses a fundamental challenge to the trade system. See Josling, Roberts and Orden (2004) and Anderson and Jackson (2005).

5 O’Connor (2004) documents the registration procedures for GIs in several countries.

6 It is possible that collective action could also improve quality as well as signal to consumers the quality attribute that they expect. Some of these dynamic issues are addressed below.

7 These concepts are explored in Josling, Roberts and Orden (2004) with respect to SPS measures. The analogy is not exact, as information about quality is not the same as information about health risks.

8 It could be noted in passing that individual EU member states have markedly different views on the question of whether and which GIs to protect. In fact the emergence of EU-wide regulations was in large part to avoid trade problems among EU members that would result from national systems of protection.

9 Legislation in the EU governing wine appellations is separate from this Regulation.

10 Note the link with traditional knowledge that presumably distinguishes regions with similar soil type and climate.

11 The EU working document give as an example the French cheese Reblochon, which is associated with a particular area even though not a place name (EU 2004, p.6). Another better known example is Feta, which refers to cheeses made only in mainland Greece and the island of Lesbos.

12 Well-known examples of PDOs are Prosciutto di Parma, which has to be sliced and packaged in the prescribed area, and Grana Padano that has to be grated and packaged in the region of production.

13 Regulation 2082/92 adds a further category of IP protection, a certificate of special character, known as “Traditional Specialities Guaranteed” (TSG). The product must have distinguishing features that set it apart from other agricultural product or foodstuff in the same category. This could include taste or specific raw materials. However, the special character cannot be a particular geographical origin.

14 However, mineral and spring waters are subject to another directive (Council Directive 80/777/EEC, 15 July 1980).

15 Traditional expressions have a significant role in modifying the geographical indication: words such as “ruby” and “tawny” for Port and “claret” for AOC Bordeaux are considered intellectual property associated with the GI.

16 The US also has a problem of inconsistent state regulations of GIs. Though much of the IP legislation is at the federal level (as it impacts on interstate commerce and foreign trade) some states still have their own versions of GI laws that can on occasions conflict with those at the national level.

17 A specialized agency, the Bureau of Alcohol, Tobacco and Firearms, has responsibility for the marketing of wines and spirits.

18 Certification marks can also relate to production by a group such as a union.

19 Certification and Collective marks share many attributes in common and are combined in the table.

20 In addition, a GI can be protected in the US market through common law trademark law without registration. Cognac is a common law (unregistered) certification mark in the US. It is not generic, as consumers identify it with spirits from a region of France.

21 There is also the possibility of establishing a collective membership mark that is used solely to identify producers as members of the collective (such as a union), but not used to identify the product. This form of protection would seem to be not suited to the direct protection of GIs.

22 They credit a previous article by Hayes, Lence and Stoppa (2004) for the concept.

23 GIs were included in the Paris Convention for the Protection of Industrial Property of 1883. The 1967 revision of the Paris Convention still covers some of the interpretation of GI provisions in TRIPS.

24 The International Convention for the Use of Appellations d’Origine and Denominations for Cheeses (Stresa Convention) has seven signatories, including Australia, Switzerland and five EU members. The International Agreement on Olive Oil and Table Olives has ten signatories from North Africa and the Mediterranean region as well as the EU and its members.

25 The definition of GIs is given in Article 22:1 of the TRIPS, as follows:

“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.”

26 Section 4 of Article 22 guards against a GI that is literally true but falsely represents to the public that the goods originate in another country.

27 The fact that phrases such as “type” and “imitation” are excluded also suggests that consumer information is not the only justification for the protection.

28 One could argue that most developing countries do not export wines and spirits that would benefit from such protection in developed countries (though instances exist). But one can also argue that the marketing of developed country wines and spirits in developing countries is often controlled by state agencies and that the cost of setting up a GI protection system may not pose too much of a problem nor impact too heavily on poor consumers.

29 Subsequently the EU has simplified its registration requirements for foreign GIs.

30 Under the TRIPS Agreement, trademarks that overlap with GIs are granted protection. The EU was thus, in the view of the US, delinquent in not protecting the Bud and Budweiser names. They could register the Czech name as a GI but not its German translation.

31 The Alcohol and Tobacco Tax and Trade Bureau (TTB) has established a list of such “semi-generics” including Angelica, Burgundy, Claret, Chablis, Champagne, Chianti, Malaga, Marsala, Madeira, Moselle, Port, Rhine Wine (Hock), Sauterne, Haut Sauterne, Sherry and Tokay. These can be used if the correct name is directly enjoined to the name. In addition there are certain generic names (such as vermouth and sake) for which no restrictions apply, and non-generics with either non-distinctive names (California or Napa Valley, for example) or distinctive names (such as Medoc, Liebfraumilch, or Chateau Lafite). That are restricted to wines from that region.

32 The documents containing these proposals are TN/IP/W/5 and TN/IP/W/6 (collectively the joint paper) and IP/C/W/107/Rev.1 and TN/IP/W/3 (the EU proposal and supporting position). The stages of the negotiations are explained in the WTO Backgrounder on the website.

33 There is an arcane disagreement among countries as to whether the implementation issues are part of the old round (and hence have been paid for) or part of the new round (and hence need to be integrated into the final package. Those favoring an extension of GIs tend to hold the former position, as they would not have to bargain anew for agreements already reached (though not yet implemented).

34 Early on in the negotiations the issue of introducing the Precautionary Principle into the Sanitary and Phytosanitary Agreement was an important part of the EU position. That too has been dropped as the support for the EU position waned.

35 The recent observation by the panel in the WTO US-Cotton case, that the provision that disallows direct payments to farmers that move land into fruits and vegetable appears to violate the definition of the Green Box, may encourage the EU also to modify its restrictions on planting.

36 This in part explains the relative lack of relevance for many of the “specialty crops” grown in the West and Southeast and Southwest of current farm legislation. Payments go disproportionately to producers of “program crops” (cereals, oilseeds, rice and sugar along with cotton).

37 Broude also makes the point that it was the British wine merchants that developed many of the main Continental wine appellations in the eighteenth and nineteenth centuries in order to convey quality information to a public that was not so familiar with wine growing.

38 The specification for the DOGC was changed some time later to follow the market. But this illustrates that the concept of terroir is situational and has to be adaptable to be useful. Traditions can be updated, of course, but then it becomes a policy decision as to when to make the update.

39 Other issues are considered in political terms to be of less importance at the moment and even potentially compromising. For instance there is a feeling that WIPO can talk about traditional knowledge but it would not be appropriate in the more formal setting of the WTO.

40 The parallel with the two sets of regulations on GM foods is striking. Developing countries have to choose which set of market regulations to follow or maintain twin control systems at considerable expense.

41 The fact that the US protects these other marks under trademark legislation should not be a problem. The difficulties are more with private trademarks that contain geographical terms.