The concept of an international registry is not new. The highly restrictive Lisbon System for the International Registration of Appellations of Origin allows any of its 27 members to place a GI on an international registry of GIs, which all members are then required to protect. Twenty years after TRIPS was signed, the WTO has still not established a wine and spirit GI registry.

Finally, and most importantly, there is an exception to both Article 22 and Article 23 for generic terms. Article 24 allows a WTO member not to protect a GI when its use is “customary in common language as the common name for such goods or services in the territory of that Member.”29

The European Union wants to strengthen TRIPS GI rules by extending the higher protection for wine and spirit GIs to all GI products.30 This would mean that the consumer perception standard in Article 22.2(a) (“in a manner which misleads the public”) would be eliminated and all GIs would be protected from nonconfusing uses (“even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind,” “type,” “style,” “imitation,” or the like”).

The EU has also proposed the creation of a WTO‐​wide registration system for GIs. Every WTO member would be required to protect any qualifying GI placed on the registry unless that member actively “lodges a reservation” within 18 months. Reservations could only be made on the grounds that the GI is not valid or is a generic term. Also, “the reservation shall identify the applicable ground or grounds and be duly substantiated.”31

The United States has resisted and should continue to resist all of these efforts. As noted at length above, Europe’s approach to GI protection that prohibits non‐​confusing uses of place names is conceptually unjustified and economically harmful. An international mandate to extend that level of protection to all products would benefit established producers of traditional products at the expense of everyone else.

The United States has proposed that if a WTO GI registry is created it must not impose any obligations on nonparticipating members. This is a direct rebuttal to the EU’s proposal to require WTO members to file reservations against listed GIs. But a better position would be for the United States to block the creation of any registry, because the existence of a registry privileges those countries that offer sui generis protection of GIs through a dedicated regime over those countries that protect GIs through a decentralized trademark system.

It is not enough simply to insist that trademark‐​style protection be allowed to coexist with the European model; the United States should put its system forward as the ideal form of protection that all countries should follow. The creation of an international GI registry at the WTO would thwart such an effort by helping the EU enshrine its system as an international norm.

The United States ought to forward its own proposal to improve the TRIPS Agreement’s GI provisions. This could include the removal of Article 23 entirely, so that all GIs are entitled to the same level of protection, one contingent on whether consumers are actually misled. Another simple and very effective proposal would be to amend Article 24, which currently allows members not to protect generic terms, so that it would require that members not protect generic terms.

Fighting Geographical Indications in the TPP

Unable to get strong GI norms mandated through the WTO, the EU has turned to bilateral trade agreements to push a more targeted agenda. Like the United States, the EU has negotiated dozens of free trade agreements with countries around the world. Those agreements typically include a list of European GIs that the other country is required to protect. The EU is perfectly willing to protect the other country’s GIs if it has any.

Europe’s trade agreements do not always require a level of protection equal to that provided in Europe, but the scope of protection is generally higher than what is required under the TRIPS Agreement. The phenomenon of TRIPS‐​plus obligations in trade agreements is rightfully controversial in areas such as patent and copyright policy. Europe’s TRIPS‐​plus position on GIs should raise special concern because it applies only to the EU‐​origin GIs imposed through the agreement. That is, European trade agreements may require the other country to protect Europe’s GIs more strongly than those from a third country, a potential violation of TRIPS Article 4 (Most‐​Favored‐​Nation Treatment).

Europe’s actions have prompted a curious sort of proxy war with the United States over GI norms in bilateral trade agreements. Europe’s agenda disadvantages American producers of generic products by making it more difficult for them to sell in those markets using names consumers understand. More importantly, though, the spread of Europe’s GI‐​based marketing model acclimates consumers and businesses toward a less competitive and innovative environment for food products.

So even though the European Union is not in the TPP, there was good reason for the United States to make GI liberalization a major issue in the negotiations. Removing regulatory barriers to trade, such as excessive GI protection, that incentivize local production at the expense of consumer welfare and economic growth serves the broad goals of the TPP in facilitating cross‐​border supply chains. The goal should be to block Europe’s ability to further spread its GI protections through its own bilateral agreements in the region.

The best way to ensure that countries maintain a liberal GI system is to include a broad prohibition against protecting generic names. That simple prohibition would strike at the heart of the problem that Europe’s GI agenda poses for international trade. It would also let countries maintain whatever GI regulatory scheme they want as long as it doesn’t restrict the use of common food names.

The TPP’s provisions on GI protection aren’t quite that simple, but they do take on the problem of generic GIs. Article 18.32 of the TPP provides that an interested party can oppose a new GI or seek to cancel an existing one on the grounds that its registration is “likely to cause confusion with a pre‐​existing trademark or geographical indication” or “the geographical indication is a term customary in common language as the common name for the relevant goods in that Party’s territory.”32

These are essentially mandatory exceptions to GI protection that ensure that U.S. companies can challenge any improperly protected GI in another TPP country. More importantly, it introduces the element of consumer perception and confusion into the GI regimes of all 12 members.

The EU already has trade agreements mandating strong protection of European GIs in a number of TPP countries, including Canada, Mexico, Peru, and Chile. For those members, a TPP GI cancellation provision could potentially place them in violation of their agreements with the EU that mandate protection even against generic use.

So, there was debate among negotiators over whether the past agreements should be outright exempt from the cancellation procedures.33 A number of countries that are currently negotiating free trade agreements with the EU, notably Japan and Vietnam, wanted any GIs added as part of an international agreement made during the first three years of TPP to be exempt from the cancellation procedures. Not being constrained by TPP rules against generic GIs would strengthen their ability to make offers to the EU in trade negotiations.34

In the final text of the TPP, the parties agreed to exempt from the cancellation procedures all GIs added as part of agreements that were completed before the TPP was completed, ratified before the TPP was ratified, or entered into force before the TPP entered into force.35 This may end up including GIs in EU agreements with Japan and Vietnam, depending on how quickly those are wrapped up relative to the TPP.

Expanding the TPP’s GI disciplines is one of many reasons why the United States should welcome other countries to join the agreement in the near future.

High Stakes for the Transatlantic Trade and Investment Partnership

If completed, the Transatlantic Trade and Investment Partnership promises to be the single most important bilateral free trade agreement in history. The United States and the European Union are not only two of the largest economies in the world, but major trading partners who already experience significant commercial interdependence. The idea of TTIP has broad support on both sides of the Atlantic, but actually reaching an agreement will be a difficult task. Both governments have listed as a main priority the elimination of regulatory policies that the other government is highly unlikely to reform through trade negotiations.

Geographical indications fit into this category as a key offensive priority of the European Union that has received stiff opposition from the United States. As they have in all other recent bilateral negotiations, the EU wants to use TTIP to secure protection for certain specific GIs in the wine, spirits, meat, and cheese sectors. In addition to their list, the EU contends that the current U.S. system of protecting GIs through trademark law is inadequate. They claim the system is too costly for foreign producers to use, ineffective at enforcing existing rights, and, of course, that it only protects terms that are not generic.

The rhetoric on both sides has become quite heated. Cecilia Malmström, the European Commissioner for Trade, has lamented that Italian cheeses are being “undermined by inferior domestic imitations” in the United States and vowed to solve the problem through TTIP by “getting a strong agreement on geographical indications.”36 On the opposite side, Rep. Paul Ryan (R–WI), current speaker of the U.S. House of Representatives and, before that, chairman of the House Ways and Means Committee that oversees trade matters, has condemned European GIs as trade barriers and vowed that “for generations to come, we’re going to keep making gouda in Wisconsin. And feta, and cheddar and everything else.”37 It’s difficult to see a path forward on the issue that will satisfy both sides.

There is much more at stake for the United States in the TTIP negotiations than in the TPP, because TTIP rules will directly affect American consumers. Even advocates of strong GI protection recognize that taking common food names off the shelf will initially cause consumer confusion as companies try to figure out what to call their wines and cheeses. It may be difficult to convince the American public that the TTIP is worthwhile if it involves controlling the use of language for the express purpose of furthering the economic interests of inefficient foreign producers of high‐​class products.

It’s worth remembering that, assuming it becomes a member of the TPP, the United States will be bound to deny or cancel protection for any GI that is a common name, even if that GI is added pursuant to an international agreement. Despite the legal and political impossibility of securing its GIs in the United States, EU negotiators still consider GI protection a priority for the TTIP. It’s important that U.S. negotiators not be tempted by apparent compromise offers.

Going through the Food and Drug Administration

One early proposal the EU came up with was to protect GIs through existing U.S. regulatory structures.38 In particular, they’ve offered the idea of including geographic criteria within “standards of identity” enforced by the U.S. Food and Drug Administration. Standards of identity are a form of regulation that dictates what qualities a product must have in order to be called something. For example, the FDA recently told a vegan mayonnaise maker that it could not label its product “mayonnaise” because it lacked eggs, and under federal rules a product isn’t mayonnaise if it doesn’t have eggs.39

Standards of identity are a reasonable fit for GI protection, which as explained above is as much about regulating product characteristics as it is about truth in labeling. As with GI rules, standards of identity are a common avenue for rent‐​seeking businesses to disadvantage competitors through lobbying and legal tactics. The FDA’s mayonnaise decision came not long after Hellmann’s filed a lawsuit against a vegan competitor over the same issue.40 In another pertinent example, PepsiCo has lobbied for standards of identity for hummus that correspond to the traditional products it offers under its Sabra brand in order to reduce competition from other, more creative, companies.41

Making it easier to use existing regulatory mechanisms to enact GI regulations would have the same effect as a direct GI protection scheme. The United States should reject this sort of approach with the same conviction as it would reject adopting Europe’s GI regime outright.

Tinkering with the List

It may be tempting for U.S. TTIP negotiators to follow the model used in the Canada‐​EU Comprehensive Economic and Trade Agreement (CETA). In CETA, Canada accepted an obligation to protect the EU’s list of GIs, but with limitations on some of the more onerous ones. In particular, five generic cheese names—asiago, feta, fontina, gorgonzola, and muenster—are still allowed “when the use of such terms is accompanied by expressions such as ‘kind,’ ‘type,’ ‘style,’ ‘imitation,’ or the like, and is in combination with a legible and visible indication of the geographical origin of the product concerned.”42 Those modifiers are not permitted for any other GIs included in the agreement. The agreement also allows Canadian companies that have used those and three other generic names for a certain number of years to continue using them under a series of complex grandfather clauses.

The reason the United States might be willing to accept this approach in the TTIP is that it enables the U.S. dairy industry to secure carve‐​outs that will reduce its self‐​interested opposition to the entire GI agenda. That is, if the main commercial opponents of GI protection are bought off with complex exceptions, the rest of the agenda can squeak through. This is a common tactic in trade negotiations.

The Europeans might also find this approach palatable because, although it leaves some prominent GIs unprotected, it still moves policy in their preferred direction. A similar outcome was reached in the 2006 wine agreement between the United States and the European Union that established semi‐​generic wine categories with rules very similar to CETA’s cheese exceptions.43 Rather than settle the dispute over wine names, that agreement merely emboldened Europeans to demand more restrictions in future negotiations. Some American wine makers have even decided that a European‐​style GI system would benefit them.44

U.S. negotiators should be very wary of this tactic. Opposition to Europe’s GI agenda should not hinge solely on the interests of one or two industry groups. Even if American producers across the board wanted strong GI protection, the interests of consumers, free trade, and economic dynamism would demand that the United States avoid giving in to European demands. Importing the culture of privilege and cartel status enjoyed by Europe’s traditional food and wine producers is not something the United States should do even if some businesses would find it appealing.

Conclusion

The protection of GIs beyond what is needed to prevent consumer confusion does not serve the public interest. Europe’s strong GI regime works to reduce innovation and economic growth while insulating traditional producers from competition among themselves and with the rest of the world. U.S. policymakers should avoid adopting the European model for any industry or product group. Instead, they should continue to rely on trademark law as a well‐​balanced approach to protecting consumers and producer interests in a competitive market.

It is not enough, however, that the United States avoid the European model. It must also actively fight against European efforts to spread its model around the world. Multilateral, regional, and bilateral trade agreements are fronts in a battle that pits protection of traditional production patterns against competitive innovation and consumer choice. The United States is on the right side of this conflict and should continue its efforts.

Notes

1. Merriam‐Webster’s School Dictionary, 2015 ed., s.v. “champagne”; Mer​ri​am​-Web​ster​.com, s.v. “champagne,” http://www.merriam-webster.com/dictionary/champagne .

2. See 15 U.S.C. §§1052, 1114.

3. U.S. Patent and Trademark Office, Trademark Manual of Examining Procedure, §1210, http://tmep.uspto.gov .

4. U.S. Patent and Trademark Office, Trademark Manual of Examining Procedure, §1210.02(b)(i).

5. 15 U.S.C. §1127.

6. U.S. Patent and Trademark Office, Trademark Manual of Examining Procedure, §1306.02.

7. Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge, UK: Cambridge University Press, 2012), pp. 21–22.

8. Ibid., pp. 80–83.

9. “Agreement on Trade‐​Related Aspects of Intellectual Property Rights,” Article 22, https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm .

10. Council Regulation (EC) no. 510/2006, Article 13, March 20, 2006, on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32006R0510 .

11. Parmigiano‐​Reggiano Cheese Consortium, “Specification of the Parmigiano Reggiano Cheese,” http://storage.parmigiano-reggiano.it/file/Parmigiano_Reggiano_specification_29_August_2011_en.pdf .

12. Council Regulation (EC) no. 510/2006, Article 13, March 20, 2006, on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32006R0510 .

13. Ibid. Section 2 of Article 13 of the regulation, in fact, specifically states, “Protected names may not become generic.”

14. William New, “Stakeholders Give Opposing Views on GIs in EU-US Trade Agreement,” Intellectual Property Watch, December 2, 2015, http://www.ip-watch.org/2015/02/12/stakeholders-give-opposing-views-on-gis-in-eu-us-trade-agreement/ .

15. European Commission, “Geographical‐​indications,” http://ec.europa.eu/trade/policy/accessing-markets/intellectual-property/geographical-indications/ .

16. Justin Hughes, “Champagne, Feta, and Bourbon: The Spirited Debate about Geographical Indications,” Hastings Law Journal 58 (2006): 364–68.

17. Matthew J. Rippon, “What Is the Geography of Geographical Indications? Place, Production Methods and Protected Food Names,” Area 46 (2014): 154–62.

18. See, for example, Rebecca Helm‐​Ropelato, “The Birthplace of Gorgonzola. Maybe.” Christian Science Monitor (February 2, 2005), http://www.csmonitor.com/2005/0202/p11s02-lifo.html .

19. European Commission, “Geographical‐​indications.”

20. Teshager W. Dagne, “The Identity of Geographical Indications and Their Relation to Traditional Knowledge,” WIPO Journal 5 (2014): 142–44.

21. European Commission, “Geographical‐​indications.”

22. See American Origin Products Association, http://www.aop-us.org/ .

23. European Commission, “Geographical‐​indications.”

24. See, for example, Chidi Oguamanam and Teshager W. Dagne, “Geographical Indication (GI) Options for Ethiopian Coffee and Ghanian Cocoa,” in Innovation & Intellectual Property: Collaborative Dynamics in Africa, ed. Jeremy de Beer, Chris Armstrong, Chidi Oguamanam, and Tobias Schonwetter (Claremont, South Africa: UCT Press, 2014), pp. 77–99; Andrea Zappalaglio, “The Protection of Geographical Indications: Ambitions and Concrete Limitations,” Edinburgh Law Review 2 (2015): 89–102.

25. Rosemary J. Coombe, Sarah Ives, and Daniel Huizenga, “Geographical Indications: The Promise, Perils and Politics of Protecting Place‐​Based Products,” in The SAGE Handbook of Intellectual Property, ed. Matthew David and Debora Halbert (London: SAGE Publications Ltd., 2015), 207–20.

26. “Agreement on Trade‐​Related Aspects of Intellectual Property Rights,” Article 22, https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm .

27. Ibid., Article 23.

28. Ibid.

29. Ibid., Article 24.

30. World Trade Organization, “Geographical Indications,” (05–2506), June 14, 2005 (05–2506), http://docsonline.wto.org/imrd/directdoc.asp?DDFDocuments/t/tn/ip/W11.doc .

31. Ibid., p. 13.

32. Trans‐​Pacific Partnership, Article 18.32.1(c).

33. “TPP Ministers Fail to Bridge Gaps over GI Rules Aimed at Curbing EU Efforts,” Inside U.S. Trade, November 7, 2014, http://insidetrade.com/inside-us-trade/tpp-ministers-fail-bridge-gaps-over-gi-rules-aimed-curbing-eu-efforts .

34. Kimberlee Weatherall, “TPP–Section‐by‐Section Analysis of Some Provisions People Aren’t Talking About,” October 29, 2014, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2516058 , pp. 18–19.

35. Trans‐​Pacific Partnership, Article 18.36.6.

36. “EU Trade Commissioner Expects Italian Cheese Exporters to Benefit from Lower Tariffs, Strong GI Protections in TTIP,” Cheese Reporter, June 26, 2015, http://npaper-wehaa.com/cheese-reporter/2015/06/s3/#?article=2545800 .

37. Adam Behsudi, “U.S. to Europe: Don’t Move My Cheese,” Politico, June 20, 2015, http://www.politico.com/story/2015/07/us-to-europe-dont-move-my-cheese-120387 .

38. “EU TTIP Proposal on GIs Pushes Other Routes over Trademark Protection,” Inside U.S. Trade, February 6, 2015, http://insidetrade.com/inside-us-trade/eu-ttip-proposal-gis-pushes-other-routes-over-trademark-protection .

39. Marina Koren, “The True Meaning of Mayonnaise,” The Atlantic, August 25, 2015, http://www.theatlantic.com/national/archive/2015/08/the-true-meaning-of-mayonnaise/402286/ .

40. Ibid.

41. K. William Watson, “Are Americans too Ignorant to Buy Good Mediterranean Food?” Cato@Liberty (blog), May 23, 2014, http://www.cato.org/blog/are-americans-too-ignorant-buy-good-mediterranean-food .

42. “Comprehensive Economic and Trade Agreement,” Chapter 22, Article 7.6.1, http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/22.aspx .

43. See Renée Johnson, “The U.S. Wine Industry and Selected Trade Issues with the European Union,” Congressional Research Service, July 24, 2014.