SUMMARY

The issue of Geographical Indications (GIs) is one of significant importance to processed food manufacturers. At the heart of the issue are fundamental questions about intellectual property rights and trademark protections. Efforts by the EU to enhance protections for GIs for food products threaten many well known branded products such as Parmesan cheese, pilsner beer, polish kielbasa, and potentially many more cheese and meat products.

BACKGROUND:

Geographical indications are defined in the WTO as agreement as “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 geographic origin.” The Trade Related Intellectual Property (TRIPS) agreement obligates member countries to protect GIs such that they cannot be used in a manner that deceives or misleads consumers as to the true origin of a good, or that is 'contrary to honest practices in industrial or commercial matters'.

Wines and spirits, however, are offered higher levels of protection than GIs for other products. Under this higher level of protection, any use by a third party of a wine or spirit GI belonging to another is prohibited, even if the true origin of the good is demonstrated (e.g. New York State Bordeaux). The use of 'kind', 'type', 'style', 'imitation' or other such words or translations of the GIs is also prohibited. For example, in many countries it is not permitted to call sparkling white wine 'Champagne-style.’ Several countries have asserted that the higher level of protections afforded to wines and spirits must now be granted as well to other food products.

In the WTO Agriculture Negotiations, the EU is attempting to claw back many famous names, regardless of whether these products are currently generic (like cheddar, parmesan, Dijon mustard etc.) or whether there is an existing trademark on the product. They would like to have the exclusive right to make, market and distribute these products despite the fact that US manufacturers have actually been the ones to develop the brand equity around these products.

The Doha Declaration directs countries only to examine issues surrounding the extension of protections to other products in the TRIPS Council.

GMA POSITION:

GMA is adamantly opposed to new negotiations on the extension of enhanced protections for geographical indications to products other than wine and spirits. We believe that sufficient rules already exist to guarantee that GIs are protected and that new commitments in this area are not needed. New rules may only serve to confuse consumers and represent a direct threat to trademarks and brands that are essential to the future growth of the food industry.

In the TRIPS Council, we remain opposed to extending the enhanced protections for geographic indications for wines to other products. In particular, we are concerned that the true intention of the EU is to undermine existing trademarks for food products as well as current exceptions for generic goods. The recent experience of the cancellation of Anheuser-Busch’s trademark registrations for Budweiser™ within the EU because of GI claims, leads us to believe that the EU wishes to negotiate commitments making GI’s superior in right to trademarks regardless of when they were created or protected. Given the plethora of food products available that were derived from other cultures, we are also concerned that a prohibition of the terms kind”, “type” “style,” “imitation” would have the effect of severely restricting trade and denying trademark rights to branded companies.

We are equally concerned about EU attempts to “claw back” protections for generic products in the WTO agriculture negotiations. Although the EU has stated that they only wish to protect 41 names, even the loss of one name (e.g., parmesan) could represent hundreds of millions of dollars to GMA member companies. Companies would be forced to repackage products and more importantly, re-educate consumers through a re-branding campaign. GMA is concerned that companies that created the value in the goods may be forced renounce their claim on these products. The products in question are no longer source identifiers since they have become known as a type or style of product whether it’s a cheese or mustard. We also do not believe that the EU will be satisfied with a small list of products and will work to increase the number of products protected through subsequent negotiations and through new types of protections such as “traditional expressions” (cream, tawny, ruby) as they have done in the wine area.

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