Geographical Indications (GIs): A Great Opportunity to Foster Trade and Development under the Transatlantic Trade and Investment Partnership (TTIP) and the TRIPS Agreement. The case of Belizean Bananas

© COPYRIGHT by Jesus Bores-Lazo 2016 ALL RIGHTS RESERVED Dedicated to my wife, Juana, our children—Juana, Julia, Jesus, Jimena, and Juncal—and to our families for their love and support. Life has been very generous to me mainly because of you. Research has taken much of our time together but never forget to listen, study, work hard, travel, and learn, using your knowledge and capacities to be happy, good people, and restless dreamers permanently inspiring those around you—no matter how far they might be or how different they are—sharing values, ideas and actions. ii GEOGRAPHICAL INDICATIONS: A GREAT OPPORTUNITY TO FOSTER TRADE AND DEVELOPMENT UNDER THE TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP AND THE TRIPS AGREEMENT. THE CASE OF BELIZEAN BANANAS BY Jesus Bores-Lazo ABSTRACT Geographical Indications (GIs) are a major intellectual asset as a tool for ensuring the benefits and distinctiveness of unique agricultural products while protecting consumer interests. Furthermore, GIs—as indicators of quality, reputation, and other characteristics linked to origin—serve as a legal and economic mechanism for development, market access, local distribution of added value, preservation of diversity and cultural heritage, and environmental sustainability. Recent inclusion of GIs regulations within important trade agreements signed by the European Union (South Korea, Central America and Canada), announce a very interesting negotiation under the Transatlantic Trade and Investment Partnership Agreement (TTIP) with the United States and the revision of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement). Based on the complexities of existing models for the protection of agricultural products through traditional trademarks or a sui generis GI system, this research provides a new concept of GIs protection including certification, registration, fair trade, and the interest of developing countries to overcome the current legal schemes. iii PREFACE “EACH AGE HAS ITS OWN CHALLENGE. Our world of today in a fast moving, rapidly expanding society in a great process of transition, with the challenge of recognizing the rising demands of people everywhere to a decent standard of living, and to the full recognition of their dignity and their worth as human beings. We are witnessing in recent years a metamorphosis of our world due primarily to the surging tides of technology and the practical applications of vast developments in scientific knowledge. And this is probably still the beginning. Science forges ahead in a hundred directions. The results of researches in inventions feed upon each other continuously and synergetically to enlarge the whole. Human ingenuity and intelligence in engaged in the highly rewarding and at the same time spiritual endeavor to relieve human hardship, liberate the human spirit and provide for conditions of enjoyment of life. This endeavor must reach affluent and poor peoples alike. Failure to extend the benefits of technology and science to large parts of the world is not only morally wrong, but in the long run it denies to the total system its ultimate fulfillment. Prosperity like peace is indivisible. The accelerated pace of the West’s own economic progress could be nullified by the failure of the rise in the standard of living of the larges part of the world.” Stephen P. Ladas1 (father of U.S. Trademark Law). 1 Stephen P. Ladas, Existing Uniformity of Industrial Property Laws and Revised Patent of Introduction: Means for Transfer of Technical Information to Less Industrialized Countries, 12 IDEA 163, 163 (1968). iv ACKNOWLEDGMENTS I would like to sincerely thank my faculty adviser, Christine Farley, for her guidance, encouragement and support. Prof. Farley guided me with her deep understanding of industrial property law, and her global and practical views, as well as her expertise and knowledge on the United States legal system. My gratitude must be extended to Alberto Díaz Moreno, Jonas Anderson and José Carlos Vázquez Cueto who provided me with helpful assistance, comments, and insights to develop the research. Thanks also to Fernanda Nicola, Padideh Ala’i, and Elisa Alonso for their precious observations. I also wish to sincerely thank the Pence Law Library (particularly John Heywood and Bill Ryan) and the Sevilla University Law Library (especially Ana Isabel Moreno and Pilar Romero) who provided me everything that was needed for my research. Special gratitude to my research companions Cristiane Dias, Abdulmajed Alrajhi, and Young (Maxwell) Joo, for their friendship and support. To Chelsea Zimmerman, I wish to convey my deep appreciation and thanks for editing and discussing this dissertation. Brussels, Washington D.C., and Belize provided me contacts, data, and experiences while working with Alessandro Petrini and Fiorentino Delogu (PROATEC), the European BAM Program, and international organizations such as the European Union, UNDP, OSCE, IADB, World Bank. I really appreciate the experiences shared with outstanding international experts, such as Cesar Saldaña, Edith Flores, Palmira López-Fresno, Dominique David, Carlos Gauggel, Gabriel Fernández, Valentín Diaz, Roberto Alfonzo, Theresa Francis, Pawel and Izabela Strzelecka, Joern Doesch, and John Briggs. v As a lawyer, professor, and international consultant, my professional life and passion for justice, trade, and development is due to my father, Jesus Bores Saiz. Of course, there are other great people as well, specifically Guillermo Jiménez Sánchez as a unique intellectual reference but also Juan Antonio Carrillo Salcedo, Jose Manuel Peláez Marón, Javier Puech Suances, Carlos Camacho Gaos, Juan Ramón Iturriagatoitia, Enrique Sánchez, Ulf Renzenbrink, Telmo Baltazar, Cristina Lobillo, Cristina Miranda, Jose María Cueto, Asko Linqvist, Pilar González, Magdalena Requena, and Ignacio Gallego Jiménez. Thanks also to the American University Washington College of Law, the University of Seville, the Maastricht University, the Europaische Recht Academie and other institutions that provided me the opportunity to learn from great professors and belong to the global research community. Naturally, I take full responsibility for any errors or omissions and the views expressed herein are my own. vi TABLE OF CONTENTS ABSTRACT'...............................................................................................................................'ii! PREFACE'................................................................................................................................'iii! ACKNOWLEDGMENTS'............................................................................................................'iv! LIST'OF'FIGURES'...................................................................................................................'xii! LIST'OF'TABLES'.....................................................................................................................'xiii! LIST'OF'ACRONYMS'..............................................................................................................'xiv! CHAPTER'1:'INTRODUCTION'...................................................................................................'1! 1.!WORKING'AND'RESEARCH'HYPOTHESIS'....................................................................................'6! 2.!SCOPE'AND'LIMITATIONS'IN'THE'DISSERTATION'.......................................................................'8! 3.!RESEARCH'METHODOLOGY'.......................................................................................................'9! CHAPTER'2:'REGULATION'AND'IMPORTANCE'OF'GEOGRAPHICAL'INDICATIONS'AND'GLOBAL' DEVELOPMENT'.....................................................................................................................'11! 1.!A'LEGAL'CONCEPT'COMPELLING'US'TO'THINK'GLOBALLY'AND'ACT'LOCALLY'..........................'11! 1.1.!Legal!Concepts!of!Geographical!Indications!..............................................................!17! 1.2.!Quality!and!The!“Market!for!Lemons”:!GI!Economic!Theories!and!Value!.................!30! 1.3.!The!Value!of!GIs!and!Potential!Opportunity!for!Developing!Countries!.....................!44! 1.4.!Complexities!Deriving!from!Lack!of!Consensus!on!GI!Concept!in!a!Globalized!but! Legally!Fragmented!World!................................................................................................................!50! 2.!INTERNATIONAL'REGULATION'ON'GIS'....................................................................................'53! vii 2.1.!GIs!Under!the!Agreement!on!Trade!Related!Aspects!of!Intellectual!Property!Rights! (TRIPS!Agreement)!............................................................................................................................!55! 2.1.1.!Legal!Concept!of!GIs!under!the!TRIPS!Agreement!............................................................!58! 2.1.2.!Negotiations!and!Proposals!to!Reinforce!the!Global!System!of!GI!Protection!.................!62! 2.2.!International!Conventions!Regulating!GIs!.................................................................!66! 2.2.1.!The!1883!Paris!Convention!for!the!Protection!of!Industrial!Property!..............................!68! 2.2.2.!The!1891!Madrid!Agreement!for!the!Repression!of!False!or!Deceptive!Indications!of! Source!on!Goods!70! 2.2.3.!The!Madrid!System!for!the!International!Registration!of!Marks!Governed!by!The!1891! Madrid!Agreement!Concerning!the!International!Registration!of!Marks!and!the!1989!Protocol!Relating!to! that!Agreement!71! 2.2.4.!The!1929!Washington!General!Inter-American!Convention!for!Trademark!and! Commercial!Protection!.................................................................................................................................!72! 2.2.5.!The!1958!Lisbon!Agreement!for!the!Protection!of!Appellations!of!Origin!and!Their! International!Registration!.............................................................................................................................!74! 2.2.6.!Changes!Introduced!by!the!Geneva!Act!of!the!Lisbon!Agreement!on!Appellations!of! Origin!and!Geographical!Indications!.............................................................................................................!76! 2.3.!Recent!Relevant!European!Trade!Agreements!Including!GIs!....................................!79! 2.3.1.!Canada:!The!Experience!of!the!Comprehensive!Economic!and!Trade!Agreement!(CETA) !84! 2.3.2.!South!Korea:!Similarities!in!the!New!Approach!to!Trade!Agreements!.............................!90! CHAPTER'3:'THE'MISSING'LINK'OF'GEOGRAPHICAL'INDICATIONS'IN'THE'UNITED'STATES.' MYSTERIES'AND'RELEVANCE'OF'THE'GENERAL'INTER-AMERICAN'CONVENTION'OF'1929'FOR' TRADE'MARK'AND'COMMERCIAL'PROTECTION'....................................................................'94! xiv LIST OF ACRONYMS ACP African, Caribbean, and Pacific Group of States ACTA Anti-Counterfeiting Trade Agreement AIPPI International Association for the Protection of Intellectual Property AO Appellation of Origin AOC Controlled Appellation of Origin (in several languages, i.e. Appellation d’origine controlee) AOP(A) American Origin Products (Association) ASEAN Association of Southeast Asian Nations ATF Department of Justice, the Alcohol and Tobacco Tax and Trade Bureau AVA American Viticultural Area BAM Banana Accompanying Measures BGA Banana Growers Association BSP Banana Support Programme CAC Codex Alimentarius Commission CAP Common Agricultural Policy CARICOM Caribbean Community CARIFORUM Caribbean Forum CBERA Caribbean Basin Economic Recovery Act CBTPA United States-Caribbean Trade Partnership Act CCFN Consortium for Common Food Names CETA Canada-European Union Trade Agreement xv CFR Code of Federal Regulations (U.S.) CIRAD Agricultural Research Center for International Development (France) CMOB Common Market Organization for Bananas (EU) COLA Certificate of Label Approval (U.S.) COOL Country of Origin Labeling (U.S.) CORBANA National Banana Corporation (Costa Rica) COTED Council for Trade and Economic Development (CARICOM) CSP Country Strategy Paper CTA Technical Centre for Agricultural and Rural Cooperation CTM Community Trademark (EU) DOOR Database of Origin and Registration (EU) EC European Community ECJ European Court of Justice EDF European Development Fund (EU) EEAS European External Action Service EPA CARIFORUM-European Union Economic Partnership Agreement EU European Union EUIPO European Union Intellectual Property Office FAO Food and Agriculture Organization FSMA Food Safety Modernization Act (U.S.) FTA Free Trade Agreement FTDA Federal Trademark Dilution Act (U.S.) xvi GAP Good Agricultural Practices GDAPs Geographically Differentiated Agricultural Products GATB Geneva Agreement on Trade in Bananas GI/s Geographical Indication/s ICTSD International Centre for Trade and Sustainable Development IICA Inter-American Institute for Cooperation on Agriculture INAO Institut National des Appellations d’Origine (France) INTA International Trademarks Association IP or IPR Intellectual Property (Rights) ISO International Organization for Standardization KOREU Europan Union-South Korea Free Trade Agreement LAC Latin America and Caribbean MICO Marks Indicative of Conditions of Origin MFN Most Favored Nations NAFTA North American Free Trade Agreement NAO National Authorizing Office NGO Non-Governmental Organization NPRM Notice of Proposed Rulemaking (U.S.) OAPI African Intellectual Property Organization OECD Organization for Economic Co-operation and Development OECS Organization of Eastern Caribbean States ORIGIN Organization for an International Geographical Indication Network xvii PCT Patent Cooperation Treaty PDO Protected Designations of Origin (EU) PGI Protected Geographical Indications (EU) SFA Special Framework of Assistance SINER-GI Strengthening International Research on GIs Project of the EU SCI Supply Chain Initiative (EU) TMs Trademarks TPA Trade Promotion Authority (U.S.) TPOs Trade Promotion Organizations TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights TSG Traditional Specialty Guaranteed (EU) TTB Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury TTBA Trademark Trial and Appeal Board of the USPTO (U.S.) TTIP Transatlantic Trade and Investment Partnership UNCTAD United Nations Conference on Trade and Development UNIDO United Nations Industrial Development Organization U.S. United States USPTO United States Patent and Trademark Office WIPO World Intellectual Property Organization WTO World Trade Organization 1 CHAPTER 1: INTRODUCTION Product information requirements increase as worldwide consumers demand high-quality food together with proper labeling.2 Geographical Indicators (GIs) may link distinctiveness and quality to the geographical origin of a product, promote efficient methods of production, and facilitate market access, while contributing to local development and fair redistribution of added value.3 This is mainly due to reputation and the willingness of consumers to pay and recognize the uniqueness of such goods based on specific features and the impact in local development.4 However, the practice and politics of food production and GI systems is not homogeneous across borders.5 Important regulatory and cultural differences on how quality products and foodstuff rights should be granted have led to many disputes between the European Union (EU) and the United States (U.S.).6 As a matter of fact, the breach between these two 2 Academic contributions have studied consumer perceptions and the existing links between quality product demands with their place of origin providing guidance and methodologies to add value and foster local development. See Klaus G. Grunert, Food Quality and Safety: Consumer Perception and Demand, 32 EUR. REV. AGRIC. ECON. 369 (2005). See also FABIO RUSSO, ADDING VALUE TO TRADITIONAL PRODUCTS OF REGIONAL ORIGIN. A GUIDE TO CREATING A QUALITY CONSORTIUM (2010). Regarding quality marketing indicators, see Efthalia Dimara, Anastasia Petrou & Dimitris Skuras, Agricultural Policy for Quality and Producers’ Evaluations of Quality Marketing Indicators: a Greek Case Study, 29 FOOD POL'Y 485 (2004). For a practical example of considering information requirements connected to product quality, such as beef, see B. Babcock et al., Creating a Geographically Linked Collective Brand for High-Quality Beef: A Case Study, 4 INNOVATIVE MKTG. 16 (2008). 3 EMILIE VANDECANDELAERE ET AL., LINKING PEOPLE, PLACES AND PRODUCTS: A GUIDE FOR PROMOTING QUALITY LINKED TO GEOGRAPHICAL ORIGIN AND SUSTAINABLE GEOGRAPHICAL INDICATIONS 171 (2d ed. 2010). 4 Luisa Menapace & GianCarlo Moschini, Quality Certification by Geographical Indications, Trademarks and Firm Reputation, 39 EUR. REV. AGRIC. ECON. 539 (2012). 5 C. Clare Hinrichs, The Practice and Politics of Food System Localization, 19 J. RURAL STUD. 33 (2003) (illustrating the potential tension between defensiveness and diversity in food system localization). 6 For a good global analysis, see Christine Haight Farley, Conflicts Between US Law and International Treaties Concerning Geographical Indications, 22 WHITTIER L. REV. 73 (2000). Regarding the specific remaining conflicts between trademarks and sui generis GI systems, see Burkhart Goebel & Manuela Groeschl, The Long Road to Resolving Conflicts between Trademarks and Geographical Indications, 104 TRADEMARK REP. 829 (2014); and Dev S. Gangjee, Quibbling Siblings: Conflicts between Trademarks and Geographical Indications, 82 CHI.-KENT L. REV. 1253 (2007). 2 main trade and political partners has caused a global division on this matter. Consequently, there are two relevant models for the protection of certain agricultural products, wines, and spirits. Most countries, notably members of the European Union, define and treat GIs as a sui generis or distinct type of intellectual property (IP).7 This approach is also reflected in Section 3 of the TRIPS Agreement, specifically regulating GIs within Part II on “Standards concerning the availability, scope and use of Intellectual Property Rights.”8 Other legal systems, such as the common law system in the United States, consider GIs a subcategory of trademarks that function principally as a mean of providing information to consumers.9 The EU is attempting to incorporate other features of its own system of GI protection into trade agreements and the WTO regulatory bodies, often facing opposition from those states that do not consider GIs a distinctive tool for development and effective commercial trade.10 The potential of an international harmonized GI regulation and the need for the two parties negotiating Transatlantic Trade and Investment Partnership (TTIP) to agree on the 7 Through the EU quality schemes, the common agriculture policy (CAP) provides tools to help highlight the qualities and tradition associated with registered products and to assure consumers that these are the genuine products, not imitations seeking to benefit from the good name and reputation of the original. In the European Union, three quality indicators attest to the specific traditions and qualities of food, agricultural products, wines, aromatised wines, and spirit drinks: Protected Designation of Origin (PDO), Protected Geographical Indication (PGI), and Traditional Speciality Guaranteed (TSG). The most recent version of the legal framework can be found in Commission Regulation 1151/2012, of the European Parliament and of the Council of 21 November 2012 on Quality Schemes for Agricultural Products and Foodstuff, O.J. (L 343), 1 [hereinafter EU Agricultural Products and Foodstuff Regulation]. For complete European legislation on GIs, see European Commission, Agricultural and Rural Development, Quality Policy, Legislation, http://ec.europa.eu/agriculture/quality/schemes/legislation/index_en.htm (last visited Feb. 3, 2016). 8 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement]. 9 See IRENE CALBOLI & EDWARD LEE, TRADEMARK PROTECTION AND TERRITORIALITY CHALLENGES IN A GLOBAL ECONOMY (2014). See also Peter M. Brody, Geographical Indications and Dilution: Reinterpreting Distinctiveness under the Lanham Act, 100 TRADEMARK REP. 905 (2010). 10 Emily C. Creditt, Terroir v. Trademarks: The Debate over Geographical Indications and Expansions to the TRIPS Agreement, 11 VAND. J. ENT. & TECH. L. 425, 426 (2008). 3 regulation of effective and enforceable rules on innovation, intellectual, and industrial property rights—particularly regarding GIs—inspire this dissertation.11 The discussion is currently open in the TTIP negotiations, the long debated revision of the TRIPS Agreement, and in other bilateral and multilateral fora. An agreement on GIs between the European Union and the United States may have global consequences since current gaps and diverse regulatory solutions are hindering global acceptance but also local development where it is really needed.12 Everywhere, diversity remains a fundamental value since globalization is rapidly transforming societies and international trade rules.13 In this confusing and interconnected context, legal developments and regulatory frameworks need accurate analysis and imaginative proposals to address complex international problems. GIs, as a form of industrial property rights, are today considered a major intellectual asset for a variety of agricultural products, wines, and spirits.14 After all GIs are not only as a tool for protecting consumer interests but also a legal and economic instrument for the development of rural and local areas together with the preservation of cultural and environmental heritage.15 From a Latin American perspective, GIs may provide 11 The interest of both parties negoatiating TTIP to regulate IPR rules is clearly established since the beginningof the negotiations. E.g., EUROPEAN COMMISSION, DIRECTORATE GENERAL FOR TRADE, INSIDE TTIP. THE TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP (TTIP), TOWARDS AN EU–US TRADE DEAL: AN OVERVIEW AND CHAPTER-BY-CHAPTER 45 (2015). 12 See WIPO, Worldwide Symposium on Geographical Indications, Oct. 20-22 2015, WIPO/GEO/BUD/15, http://www.wipo.int/meetings/en/details.jsp?meeting_id=36422 (last visited Feb. 12, 2016). 13 Laurence Bérard & Philippe Marchenay, Local Products and Geographical Indications: Taking Account of Local Knowledge and Biodiversity, 58 INT'L SOC. SCI. J. 109, 112–6 (2006). 14 See BRUCE ALAN BABCOCK & ROXANNE L. CLEMENS, GEOGRAPHICAL INDICATIONS AND PROPERTY RIGHTS: PROTECTING VALUE-ADDED AGRICULTURAL PRODUCTS (2004). See also TANGUY CHEVER ET AL., VALUE OF PRODUCTION OF AGRICULTURAL PRODUCTS AND FOODSTUFFS, WINES, AROMATISED WINES AND SPIRITS PROTECTED BY A GEOGRAPHICAL INDICATION (GI) (2012). For a developing country perspective, see Maria Cecilia Mancini, Geographical Indications in Latin America Value Chains: A “Branding from Below” Strategy or a Mechanism Excluding the Poorest?, 32 J. RURAL STUD. 295 (2013). 15 Pradyot R. Jena & Ulrike Grote, Changing Institutions to Protect Regional Heritage: A Case for Geographical Indications in the Indian Agrifood Sector, 28 DEV. POL'Y REV. 217 (2010). 4 developing countries with a coherent, sustainable, and comprehensive development tool.16 Consequently, this dissertation provides a new concept for “Certification GIs,” based on existing international agreements and national rules, to harmonize traditional models and introduce certain fundamental elements to its legal definition such as certification, registration, fair trade, and local development.17 The relationship between trade and development is complex, especially since intellectual property rights (IPR) are protected territory by territory.18 However, GIs may serve as a legal mechanism for linking local products to global markets if they acquire global recognition.19 In this particular context, diversity of agricultural products and foodstuffs is a valuable asset to rely on and a fundamental engine for those depending on primary goods.20 Furthermore, GIs also encourage quality production, fight the constant migration of rural population, and promote the development of tourism, among other benefits.21 Due to its economic, cultural, and social consequences, GIs grant protection to a community and not to individual right holders. GIs 16 Sarah Bowen & Ana Valenzuela Zapata, Geographical Indications, Terroir, and Socioeconomic and Ecological Sustainability: The Case of Tequila, 25 J. RURAL STUD. 108 (2009). 17 This study covers regulatory frameworks and international trade agreements but also practical concerns from developing country perspective in order to transform GIs into an effective legal tool to foster fair trade, adequate distribution of economic value, and social impact while ensuring environmental sustainability. 18 Christine Haight Farley, Trips-Plus Trade and Investment Agreements: Why More May Be Less for Economic Development, 35 UNIV. PA. J. INT'L L. 1061, 1062 (2014). 19 Three relevant guides have been published with the aim of linking GI products and markets. See VANDECANDELAERE ET AL., supra note 3. See PETER DAMARY & EMILIE VANDECANDELAERE, TRAINER SHEETS. TRAINNING ON ORIGIN-LINKED PRODUCTS. TOOLS FOR A PARTICIPATORY APPROACH (2013), http://www.fao.org/3/a-au693e/au693e01.pdf (last visited Jul 23, 2016). See also DANIELE GIOVANNUCCI ET AL., GUIDE TO GEOGRAPHICAL INDICATIONS: LINKING PRODUCTS AND THEIR ORIGINS (2009). 20 Compare coffee production and value in Daphne Zografos Johnson, International Intellectual Property Scholars Series: Using Intellectual Property Rights to Create Value in the Coffee Industry, 16 MARQ. INTELL. PROP. L. REV. 283 (2012) and Robert Fitter & Raphael Kaplinksy, Who Gains from Product Rents as the Coffee Market Becomes More Differentiated? A Value-chain Analysis, 32 IDS BULL. 69 (2001), with Wine prices as described in Helene Bombrun & Daniel A. Sumner, What Determines the Price of Wine. The Value of Grape Characteristics and Wine Quality Assessments, 18 AIC ISSUES BRIEF 1 (2003). 21 Menapace & Moschini, supra note 4, at 548. 5 justify regional, national, and international political strategies and trade agreements to establish the legal frameworks that allows local producers to obtain protection for unique quality products together with a decent proportion of its economic value.22 While trade is not a guaranteed route to economic growth for developing countries, evidence suggests that openness to the global economy plays an important role in creating jobs and prosperity. The World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) compel every country in the world to readjust, reform, and even redesign their economic system to synchronize with a commercial regime based on principles that may grant market access and development worldwide.23 Every country is taking a position to establish appropriate strategies to meet the international challenges and to assure a fair share of benefits arising out of the new international economic order. Today, most trade experts, and not just the negotiating partners, envision the TTIP as a unique, comprehensive, and high-standard trade agreement with global consequences.24 The United States and the European Union seek to advance multilateral trade liberalization, set globally-relevant rules and standards, and address challenges associated with the growing role of rising economic powers in the global economy.25 The established aims include the development of new rules in the area of intellectual property rights, increased market access, and enhanced 22 See May T. Yeung & William A. Kerr, Increasing Protection of Geographic Indicators at the WTO: Clawbacks, Greenfields and Monopoly Rents, 14 J. WORLD INTELL. PROP. 353 (2011). 23 WTO, UNDERSTANDING THE WTO, 41 & 82 (2015), available at https://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf. 24 See EU-US Transatlantic Trade and Investment Partnership (TTIP), Technical Barriers to Trade: Initial EU Position Paper, at 7 (2013), available at http://trade.ec.europa.eu/doclib/docs/2013/july/tradoc_151627.pdf. 25 Interim Report of the Transatlantic Economic Council, High-Level Working Group (HLWG) on Jobs and Growth, at 3 (June 19, 2012), available at http://trade.ec.europa.eu/doclib/docs/2012/june/tradoc_149557.pdf. 6 regulatory coherence and cooperation. 26 Consequently, GIs are an effort to gain global acceptance and establish a regulatory model that, under the premises of proper certification and registration, may ensure more equitable trade and local progress based on distinctive agricultural products. 1. WORKING AND RESEARCH HYPOTHESIS The United States and the European Union seek to use commitments reached in the TTIP to advance multilateral trade liberalization and set globally-relevant rules and standards.27 Certain regulatory areas are fundamental for TTIP success due to their relevance considering the economic and political background of the partners and the nature of the agreement.28 One of the main issues in the field of IPR is GIs, an expressed priority for the European Union.29 The working hypothesis is grounded by the need of the parties to TTIP to establish trade rules to make the legal agreements enforceable and valid both in Europe and the United States regarding not just GIs, but also regulatory compatibility, investment protection, and dispute settlement.30 26 EU-US Transatlantic Trade and Investment Partnership (TTIP), supra note 24, at 4. 27 Memorandum from the European Commission on the J. Statement from U.S. President Barack Obama, Eur. Council President Herman Van Rompuy and Eur. Comm’n President José Manuel Barroso, (Feb. 13, 2013) available at http://europa.eu/rapid/press-release_MEMO-13-94_en.htm. 28 CENTRE FOR ECONOMIC POLICY RESEARCH ET AL., REDUCING TRANSATLANTIC BARRIERS TO TRADE AND INVESTMENT. AN ECONOMIC ASSESSMENT. FINAL PROJECT REPORT (2013). 29 The European Parliament reinforced the inclusion of GIs recalling “that Parliament will be asked to give its consent to the future TTIP agreement, as stipulated by the Treaty on the Functioning of the European Union, and that its positions should therefore be duly taken into account at all stages” and stressing “that intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy, and that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including GIs, and should be consistent with existing international agreements; believes that other areas of divergence relating to IPRs should be resolved in line with international standards of protection.” See Resolution on EU Trade and Investment Negotiations with the United States of America, EUR. PARL. DOC. P7_TA(2013)0227 (2013). 30 EU-US Transatlantic Trade and Investment Partnership (TTIP), supra note 24, at 4. 13 Acquiring this type of protection remains problematic, however, since reputation and quality may be highly contested or even considered socially constructed and ambivalent descriptions.40 Most international organizations and IPR experts agree that GI systems serve two functions: property rights protection and quality assurance.41 For some, the effectiveness of GI systems depends, to a large extent, on regulation and formal governance regimes deployed to control these systems.42 GI systems then consider heterogeneity of capabilities and interests among participating producers, as well as the level of communal control over production and marketing decisions granted to the GI organization.43 The international legal and institutional frameworks for GI protections, however, have remained unclear since the GI concept was introduced in the TRIPS Agreement in 1994. In an effort to clarify the benefit of GI systems, the International Centre for Trade and Sustainable Development (ICTSD) and the United Nations Conference on Trade and Development (UNCTAD) drafted a report to provide policy makers in developing countries with concrete insight on the welfare potential of GI systems. The report positively highlights the multitude of factors that need to be mobilized to realize the potential of GI systems since legislation alone is not responsible for economically successful GI operations.44 40 See Dwijen Rangnekar, The Socio-Economics of Geographical Indications, ICTSD and UNCTAD Issue Paper 8, 5 (2004), available at https://www.iprsonline.org/unctadictsd/docs/CS_Rangnekar2.pdf. 41Skilton, Paul F. & Wu, Zhaohui, Governance Regimes for Protected Geographic Indicators Impacts on Food Marketing Sytems, 33 J. MACROMARKETING 144, 145 (2013). s42 Id. at 145. (“This study is possible because there are numerous case studies of PGI systems in publications and commissioned reports on rural development, sustainable food systems, and food quality (Aubard 2010; Bowen and Zapata 2009; El Benni and Reviron 2009; Gay 2007; Kruijssen, Keizer, and Giuliani 2008; Lindkvist and Sanchez 2008; Vandecandelaere et al., 2009). … [T]his study draws on eighty product cases from thirty-six countries, published in twenty-one different studies and reports. Twenty-nine of the cases in Table 1 come from outside the EU, and the majority of the European cases come from less favored areas within the union (Parrot, Wilson, and Murdoch 2002).”). 43 Id. at 150. 44 Rangnekar, supra note 35, at V and Foreword. 14 Despite the clear conceptual distinction between GI and trademark, the two legal tools share a common arc of industrial protection. However, the complex regulatory framework and demanding requirements are probably why only a few thousand GIs exist compared to millions of registered trademarks. In 2015, the United States Patent and Trademarks Office (USPTO) received 503,889 applications trademarks registration,45 while the European Union Intellectual Property Office (EUIPO) received 130,385 European Trademarks reaching in its 20 years of existence a total of 1,582,545 (plus many other millions in the national office of the Member States).46 45 United States Patent and Trademarks Office, TRADEMARK ELECTRONIC SEARCH SYSTEM (TESS), https://www.uspto.gov/trademarks-application-process/search-trademark-database (last visited Nov. 11, 2016). 46 European Union Intellectual Property Office, STATISTICS EUIPO, https://euipo.europa.eu/ohimportal/en/the-office (last visited Aug 11, 2016). 15 Figure 1: Comparative Analysis of 2015 GI and Trademark Applications47 Source: Author (information from WIPO, USPTO, EUIPO, and European Commission) The comparison between trademark registration and GIs provides a clear picture on the current state of the play. In the same period, only fifteen Protected Designation of Origin (PDO), sixteen Protected Geographical Indications (PGI) and two Traditional Specialty Guaranteed (TSG) were filed in the European Union and only thirty-five applications for registration of appellation or origin were received under the Lisbon Agreement; there are still only a total of 1,035 registered GIs since the register was created more than five decades ago.48 47 Last updated August 12, 2016. 48 World Intellectual Property Organization, LISBON SEARCH, http://www.wipo.int/ipdl/en/lisbon/search-struct.jsp (last visited Dec 5, 2013). Trademarks Madrid Syst. Trademarks EUIPO Trademarks USPTO PDO (EU) PGI (EU) TSG (EU) 2015 49273.0 130385.0 503889.0 15.0 16.0 2.0 !"!!!!!! !100000.0!!!! !200000.0!!!! !300000.0!!!! !400000.0!!!! !500000.0!!!! !600000.0!!!! GIS AND TRADEMARKS - 2015 APPLICATIONS (United States & European Union) 16 Embracing reality, and understanding the practical problems, is fundamental to finding effective and sustainable international legal solutions. Despite its importance for the European Union, the GI system of IPR protection is not effortlessly perceived. Including ideas linked to quality, trade, agriculture, IPR, and local development, the legal nature of GI is highly controversial, particularly outside the European continent.49 Developing reasonable proposals to promote international agreement based on the legal concept and on the practical consequences of GI protection requires understanding the position of the United States and the European Union— as well as that of other countries, estimating the value of the products affected by GIs, and separately addressing the main issues at stake. In fact, the economic and political relationship between the United States and European Union—broader and deeper than between any two other regions in the world—is the most defining feature of the global economy and trade regulation. Close legal traditions, shared values, and common views for similar industrial property concerns should facilitate agreement between these transatlantic partners on GIs. When transatlantic trade negotiations were opened in 2006, the European Union and United States accounted for over 35% of global merchandise trade, 45% of world trade in services, and produced around 57% of the global Gross Domestic Product. Bilateral trade between the European Union and United States was about €627 billion a year or €1.7 billion a day, which equaled European Union trade with its three most important trade partners combined: Switzerland, China, and Russia.50 49 For a global and updated vision of the controversial matters considering a new revision of the legal framework, see Anna Micara, The Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration: An Assessment of a Controversial Agreement, INT'L REV. INTELL. PROP. COMPETITION L. 1 (2016). 50 European Union Factsheet, EU-US Summit 2006 on Bilateral Economic Relations (June 21, 2006), available at http://trade.ec.europa.eu/doclib/docs/2006/june/tradoc_129007.pdf. 17 Over the last three decades, more than forty nations have developed GI legislation facilitated and fostered by the Food and Agriculture Organization (FAO), the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), the European Union, and nongovernmental organizations (NGOs) such as the Slow Food Foundation and OriGIn.51 However, other countries and organizations strongly oppose the development of GI protections, particularly the United States and the Consortium for Common Food Names.52 The disparate opinions promote confusion and obstacles to GI protection, which negatively affects trade and development. This chapter addresses the idea of GI protections, the legal climate for these protections, existing regulations, and the main concerns of those opposing GIs to assess the global consequences of GIs on local development. 1.1. Legal Concepts of Geographical Indications Although the European Union is the main global promoter of GIs, the provision of arguments grounding the benefits of the model—while respecting certain existing rights and generic names in other jurisdictions—is not sufficiently convincing to finalize discussions on the matter. Many studies, methodologies, and significant analysis have been conducted to assess cases that reinforce the economic and social impact of GIs, since the commercial justifications that led to the development of GIs are as relevant today as when first established.53 Most experts agree on the important impacts of GI systems linked to economic-related issues. However there exist some crucial and implicit risks on GIs leading to monopolistic power in favor of the most 51 See Skilton & Wu, supra note 42, at 144. 52 CONSORTIUM FOR COMMON FOOD NAMES, http://www.commonfoodnames.com/ (last visited Sep. 27, 2015). 53 Michael Blakeney, Proposal for the International Regulation of Geographical Indications, 4 J. WORLD INTELL. PROP. 629, 652 (2001). 18 powerful actors or the establishment of complex and inefficient regulations that are often turned into wet paper very far for supporting local development.54 Intellectual property rights and the case for GIs, is an open international debate that remains unresolved.55 Challenges of GI protection indicate the need to revisit trade negotiations56 due to the variety of products in Asia,57 along with certain cases in India,58 China,59 and Saudi Arabia,60 including Champagne’s successful registrations in Thailand and Indonesia,61 certain wine in Australia,62 and GI development in Colombia63 and South Africa.64 For instance, regarding South Africa liquors, the debate is quite interesting regarding the alternative names of 54 Dominique Barjolle, Marguerite Paus & Anna Perret, Impacts of Geographical Indications: Review of Methods and Empirical Evidences, 14, 11 (2009), available at http://ageconsearch.umn.edu/bitstream/51737/2/PaperIAAE2009_85.pdf. 55 Malcolm Voyce, Geographical Indications, the EU and Australia: A Case Study on Government at a Distance through Intellectual Property Rights, 7 MACQUARIE L.J. 155 (2007). 56 Jean-Frédéric Morin & Érick Duchesne, Revisiting Structural Variables of Trade Negotiations: The Case of the Canada-European Union Agreement, 18 INT'L NEGOT. 5–24 (2013). 57 See Bernard O’Connor, The European Union and the United States: Conflicting Agendas on Geographical Indications; What’s Happening in Asia?, 9 GLOBAL TRADE CUSTOMS J. 66–69 (2014). See also LOUIS AUGUSTINJEAN, HÉLÈNE ILBERT & NEANTRO SAAVEDRA-RIVANO, GEOGRAPHICAL INDICATIONS AND INTERNATIONAL AGRICULTURAL TRADE: THE CHALLENGE FOR ASIA (2012). 58 Jena & Grote, supra note 15. See also Kasturi Das, Socio-Economic Implications of Protecting Geographical Indications in India (2009), available at http://wtocentre.iift.ac.in/Papers/GI_Paper_CWS_August%2009_Revised.pdf. 59 SANQIANG QU ET AL., INTELLECTUAL PROPERTY LAW IN CHINA (2012). 60 Myra E. J. B. Williamson, Geographical Indications, Biodiversity and Traditional Knowledge: Obligations and Opportunities for the Kingdom of Saudi Arabia, 26 ARAB L.Q. 99 (2012). 61 Charles Goemaere & Fabrice Mattei, Champagne’s GI Journey in Asia, MANAGING INTELL. PROP. 72 (2010). 62 Stephen Stern & Christine Fund, The Australian System of Registration and Protection of Geographical Indications for Wines, 5 FLINDERS J. REFORM 39 (2000). 63 DANIEL PEÑA SÁNCHEZ DE RIVERA, INTELLECTUAL PROPERTY LAW IN COLOMBIA (2012). 64 DEVELOPING GEOGRAPHICAL INDICATIONS IN THE SOUTH: THE SOUTHERN AFRICAN EXPERIENCE (Cerkia Bramley et al. eds., 2013). 19 Tawny and Ruby instead of GIs names such as Port and Sherry placing the subject matter in the spotlight.65 Whether old European food names should be kept for certain similar products or whether a differentiated industry should be developed is a continuing debate in certain countries and industries, as was the case of Australian wine.66 These issues limit but do not stop implementation of GI systems for local development. In fact, GI models can improve fundamental rural and local development by addressing information asymmetry as well as the role of product reputation, formation of niche markets, monopoly formation, and value added.67 Many GI critics consider its collective features “club goods,” implying a particular category of products that exhibit dual features of excludability and non-rivalry.68 Thus, a variety of theoretical perspectives suggest that GIs are grounded by the collective reputation embedded in them.69 Furthermore, consumer perceptions of origin, uniqueness, authenticity, and quality seem to be culturally disparate. Although the marketplace demonstrates movement toward a differentiated food supply, there is a need to establish closer forms of co-operation between value chain members. This involves finding the right contractual forms since differentiation pervades the food chain, often having implications for governance of the food. Consequently, it 65 Bramley, Cerkia & Kirsten, Johann. Exploring the Economic Rationale for Protecting Geographical Indicators in Agriculture, 46 AGREKON 47, 69 (2007). 66 Stern & Fund, supra note 62. (Initially reluctant towards the GIs concept, Australian wine is now strongly competing with French and European wines). 67 Bramley & Kirsten, supra note 65, at 71. 68 RANGNEKAR, supra note 40 at 4. 69 Giovanni Belletti, Sviluppo Rurale e Prodotti Tipici: Reputazioni Collettive, Coordinamento e Istituzionalizzazione, 7 SVILUPPO LOCALE 17, 34 (2000). See also STÉPHAN MARETTE, THE COLLECTIVE-QUALITY PROMOTION IN THE AGRIBUSINESS SECTOR: AN OVERVIEW (2005). 20 is important for producers to tap into traditional marketing strategies to convey these factors and enhance the distinctiveness and attractiveness of their products.70 GIs are particularly important in certain European Union member states with a rich history of local and unique agricultural production linked to geographic origin.71 Countries along the northern shore of the Mediterranean Sea consider GIs much more than mere collective trademarks. These GIs connect to places and history—culture that is part of the local identity;72 this allows producers to receive a premium value for products that keep their economies, landscapes, and communities sustainable.73 The United States, however, is reluctant to regulate GIs because certain product names have become generic, such as Parmesan cheese, or trademarks already exist that are similar or identical to GIs, which could cause confusion in the market. For instance, dairy and meat lobbies in the United States argue it would be incomprehensible to most Americans if companies that have produced popular food products for decades were no longer allowed to use now-common product names. The substance of the economic conflict and existing precedent in other negotiations and agreements provide areas to build upon in order to find valid international legal solutions for remaining unresolved conceptual and practical matters.74 70 Daniele Giovannucci, Elizabeth Barham & Rich Pirog, Defining and Marketing “Local” Foods: Geographical Indications for US Products, 13 J.L. INTELL. PROP. 94 (2010). 71 See Amy B. Trubek & Sarah Bowen, Creating the Taste of Place in the United States: Can We Learn from the French?, 73 GEOJOURNAL 23 (2008). 72 Id. 73 Eric Trachtenberg, A Transatlantic Partnership, Agricultural Issues. Different Visions, a Common Destiny, ECON. POL. PAPER SERIES, 15 (2012). 74 Id. at 28. 21 As Edward Rogers, one of the architects of modern trademark law in the United States, suggested, it is important to look into questions of fact rather than be misled by definitions.75 Therefore, consider the two inter-related policy presumptions underlying European Regulation 2081/92 establishing the EU Model:76 (a) the symbiotic relationship protecting “provenance” and promoting rural development77 and (b) the increasing interest of consumers in qualitative aspects of foodstuffs.78 European Union GIs79—known separately as Protected Designations of Origin (PDO),80 Protected Geographical Indications (PGI),81 and Traditional Specialty Guaranteed (TSG)82— were created in 1992 to promote and protect food products and are now considered a fundamental pillar of EU agricultural policy.83 A global concept for GI protection was then introduced in 1994 under the TRIPS Agreement. While the European system has been amended and further developed, however, the system established under the TRIPS Agreement has remained unchanged due to a lack of international consensus. 75 Edward S. Rogers, New Directions in the Law of Unfair Competition, 74 N.Y. L. REV. 317, 323 (1940) (“These cases finally resolve themselves into questions of fact. Does the mark or device in controversy distinguish the plaintiff’s goods? Does it point to one, although possible an anonymous, source? Is the mark one which in the public mind indicates that the goods are of somebody’s make? Do not be misled by definitions.”). 76 Council Regulation 2081/92 on the Protection of Geographical Indications and Desisgnations of Origin for Agricultural Products and Foodstuffs, 1992, O.J. (L 208) 1, as amended by Council Regulation 535/97, 1997, O.J. (L 83) 3, and Council Regulation 692/2003, 2003, O.J. (L 99) 1. 77 Id. 78 Id. See also EUROPEAN COMMISSION, AGRICULTURAL PRODUCT QUALITY POLICY, http://ec.europa.eu/agriculture/quality/index_en.htm (last visited, Oct. 22, 2016). 79 The most relevant conceptual modification is the simplification provided in the EU Agricultural Products and Foodstuff Regulation, see supra note 7. 80 Id. 81 Id. 82 Id. 83 Id. 22 Figure 2: Registered Foodstuff GIs in the European Union (August 2016) Source: Door Database84 Furthermore, other experts developed similar notions of agricultural product protection such as “indications of source,”85 “appellation of origin,”86 “place names,”87 “typical names,”88 84 European Commission, DATABASE OF ORIGIN AND REGISTRATION (DOOR), http://ec.europa.eu/agriculture/quality/door/list.html?locale=en (last visited Aug 11, 2016). 85 Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration, Oct. 31 1958, 923 U.N.T.S. 205 [hereinafter Lisbon Agreement]. See also Irene Calboli, Expanding the Protection of Geographical Indications of Origin Under TRIPS: Old Debate or New Opportunity?, 10 MARQ. INTELL. PROP. L. REV. 181 (2006). 86 Sabrina Lucatelli, Appellations of Origin and Geographical Indications in OECD member Countries: Economic and Legal Implications (2000). 87 Stacy D. Goldberg, Who Will Raise the White Flag? The Battle between the United States and the European Union over the Protection of Geographical Indications, 22 U. PA. J. INT'L ECON. L. 107 (2001). See also Barham, supra note 38. 88 Angela Tregear, From Stilton to Vimto: Using Food History to Re-think Typical Products in Rural Development, 43 SOCIOLOGICA RURALIS 91 (2003). PDO PGI TSG TOTAL Registered 612 692 54 1358 0" 200" 400" 600" 800" 1000" 1200" 1400" 1600" REGISTERED FOODSTUFF GIs 2016 (EU) 29 Bacchus, lists a total of 2,884 wine GIs,108 including 1,291 PDOs,109 459 PGIs,110 437 GIs,111 2 PDOs112 from non-EU member states, and 696 wines from the United States.113 Figure 3: Registered GIs in the European Union (August 2016) Source: (DOOR, E-SPIRIT-DRINKS, and E-Bacchus) 108 E-BACCHUS, DATABASE FOR WINES, http://ec.europa.eu/agriculture/markets/wine/ebacchus/index.cfm?event=pwelcome&language=EN (last visited Aug 11, 2016). 109 Id. 110 Id. 111 Id. 112 Id. 113 Id. WINES&Gis& &SPIRITS& DRINKS&Gis& FOODSTUFF& GIS& TOTAL&EU& Gis& Registered& 2885& 343& 1358& 4586& 0& 500& 1000& 1500& 2000& 2500& 3000& 3500& 4000& 4500& 5000& Number'of'GIs' Registered' 30 With 60.1% of world wine production originating in the European Union—versus 8% in the United States—and considering that 79% of grape growing and wine production is protected under GIs, the relevance of this system for Europeans is evident.114 1.2. Quality and The “Market for Lemons”: GI Economic Theories and Value Economic theory relating to the use of distinctive or quality signs, such as GIs, derives from either the information theory developed by George A. Akerlof115 or Shapiro’s model on reputation, which is concerned with a decision about the quality of output with a view to maximizing profits assuming perfect competition but imperfect consumer information.116 Under Akerlof’s theory, an asymmetry of information between producers and consumers gives rise to market failure since consumers generally receive less information. According to Shapiro, the need for initial investment implies that high quality goods must be sold at premium prices to obtain returns on initial investment to build reputation.117 Trademarks and GIs share a common rationale for protection based on informational asymmetries between buyers and sellers along with the role of reputation, conveyed through 114 With a total production of 104,044,000 hectoliters (approximately 2,749 Million U.S. gallons) in 2015, 65,081,000 h. (1719 Million U.S gallons) were produced under PDOs and 17,594,000 (465 Million U.S. gallons) as PGIs. WINE STATISTICS AND DATA, http://ec.europa.eu/agriculture/wine/statistics/index_en.htm (last visited Aug 11, 2016). See also DASHBOARD: WINE (2016), http://ec.europa.eu/agriculture/dashboards/wine-dashboard_en.pdf (last visited Aug 10, 2016). 115 George A. Akerlof, The Market for “Lemons”: Quality Uncertainty and the Market Mechanism, 84 Q.J. ECON. 488 (1970). 116 Carl Shapiro, Consumer Information, Product Quality, and Seller Reputation, 13 BELL J. ECON. 20 (1982). 117 Many authors developed on the economic theories supporting GIs development with Josling, Rangnekar, Lucatelly, Ritzer, Galsteier, Barjolle, Gowert, and Moschini agreeing on the fundamentals. For a comprehensive approach see Bramley & Kirsten, supra note 65. Cerkia Bramley, Estelle Biénabe & Johann Kirsten, The Economics of Geographical Indications: Towards a Conceptual Framework for Geographical Indication Research in Developing Countries, ECON. INTELL. PROP. 109 (2009). Cerkia Bramley & Indications June, A Review of the Socio-economic Impact of Geographical Indications: Considerations for the Developing World, WIPO WORLDWIDE SYMPOSIUM ON GEOGRAPHICAL, INDICATIONS 22 (2011),. 31 distinctive signs, to ameliorate these differences. It is in this world of asymmetric information that notoriety plays an important role by signaling a certain level of quality that consumers expect.118 Reputation, notoriety, and distinction are thus fundamental both to trademarks and GIs as IPR based on identifying or recognizing products in the market.119 Trademarks must be distinct and differentiated to protect investments and brand development. Some experts draw attention to the ascendancy of the Chicago School’s economic theories underpinning juridical developments in the United States, which have, since the mid- 1970s, enabled stronger trademark protection.120 According to Akerlof’s theory of lemon markets, a buyer cannot observe the quality of a used car with any significant surety whereas a used car seller has more reliable information about it. In this situation of information asymmetry good used cars and bad used cars would sell at comparable prices, however, this leads “bad cars driv[ing] out good cars.”121 The common price between good and bad products presents sellers with perverse incentives motivating the withdrawal of the good products. Consequently, as good cars are withdrawn from the market, equilibrium is achieved at lower levels of quality.122 Similarly, buyers of GI products like wine or cheese—particularly in countries far from the origin of the product—cannot distinguish between a high-quality food product and a bad one. Then they are only willing to pay a fixed price for a product that averages the value of a good 118 RANGNEKAR, supra note 40, at 1, Executive Summary and 10. 119 Martin Blackwell, The Relationship of Geographical Indications with Real Property Valuation and Management, 25 PROP. MGMT. 193 (2007) (studying the implications of GIs on real property valuation and management). 120 Daniel M. McClure, Trademarks and Unfair Competition: a Critical History of Legal Thought, 69 TRADEMARK REP. 305 (1979). See also Daniel M. McClure, Trademarks and Competition: the Recent History, 59 LAW CONTEMP. PROBLEMS 13–43 (1996). 121 Akerlof, supra note 115, at 490. 122 Id. at 489. 32 product and bad product together. The memory of a certain name, a familiar ancestral label, or an identity call to the nationality or traditional origin of the product—not necessarily related to quality—may be enough for a consumer to choose the product, due to its perceived reputation as higher quality.123 The mere presence of low quality agricultural goods destroys the market for quality goods when information is imperfect; signaling quality goods is essential, then, to avoid this problem. Using reputation to restore efficiency to the market by averting the consequences of information asymmetries requires that reputation be protected through a process such as GIs or the “institutionalization of reputation.”124 Food markets and consumers are increasingly determined by an array of quality assurances, reflecting a growing interest on product origin and production method, demonstrating a need for the institutionalization of quality.125 Theory suggests that credible signals—such as GIs—in the form of labels and verification marks are necessary to ameliorate the information asymmetry inherent in the provision of a credence attribute. Moreover, empirical results demonstrate the important need for a system to facilitate the establishment and verification of these credible industry-led quality assurances.126 123 Jesús Cambra Fierro & Antonio Villafuerte Martín, Denominaciones de Origen e Indicaciones Geográficas: Justificación de su Empleo y Valoración de su Situación Actual en España, in15 EL NUEVO SISTEMA AGROALIMENTARIO EN UNA CRISIS GLOBAL 329, 340 (2009). 124 Bramley & Kirsten, supra note 65, at 76. 125 See Gilles Allaire, Quality in Economics, a Cognitive Perspective, in THEORETICAL APPROACHES TO FOOD QUALITY 61, 61 (Mark Harvey, Andrew McMeeking, & Alan Warde eds., 2004). 126 Jill E. Hobbs et al., Food Quality Verifications and Consumer Trust, in 86TH ANNUAL CONFERENCE, APRIL 16- 18, 2012, WARWICK UNIVERSITY, COVENTRY, UK 24, 21 (2012), http://ageconsearch.umn.edu/bitstream/135069/2/Jill%2520E_Hobbs_Hobbs%2520et%2520al_Trust_AES2012.pdf (last visited Nov. 14, 2016). 33 GIs may serve to protect intangible assets such as market differentiation, reputation, and quality standards,127 as well as innovation and development, in the increasingly open global economy. Furthermore, GIs implying a competitive equilibrium that arises with a credible GI mechanism may be treated as effective certification tools for high-quality products that attempt to overcome the very real information problem that consumers face when quality cannot be readily ascertained prior to purchasing.128 For the GI process to become a useful tool for development, public actors —not just the legal and institutional frameworks— must play a major role ensuring certain conditions to support local stakeholders. These conditions include identification of local resources, qualification and certification of the product as a GI, remuneration and management of the GI system, and reproduction of local resources to grant sustainability. It requires a proper combination of an integrated rural development policy that supports local stakeholders through stages including fair trade and redistribution of value along the production chain, as well as the recognition of collective property rights attached to the GI through sound legislative and regulatory frameworks.129 Among IPR, GIs may ensure a positive result when sustainable agricultural actions and rural development policies complement the legal framework.130 Those policies, together with 127 Felix Addor, Nikolaus Thumm & Alexandra Grazioli, Geographical Indications: Important Issues for Industrialized and Developing Countries, 74 IPTS REP. 24, 29 (2003). 128 See GianCarlo Moschini, Luisa Menapace & Daniel Pick, Geographical Indications and the Competitive Provision of Quality in Agricultural Markets, 90 AM. J. AGRIC. ECON. 794, 809 (2008). 129 VANDECANDELAERE ET AL., supra note 3, at 148 (creating conditions for the development of GIs: the role of public policies). 130 Giovanni Belletti, Le Denominazioni Geografiche nel Supporto all’Agricoltura Multifunzionale, 4 POLIT. AGRIC. INTERNAZIONALE 81 (2003) (regarding the multifunctionality of agriculture and how it represents a problem of public policy when it comes from the a reform of market and institutions signaling the specific attributes of the commodity output being a typical agro-food product and its production system can be regulated under a GI). 34 others such as food safety regulations or anti-trust policies, are crucial to optimization the effects of GIs.131 An origin-linked product, and consequently a GI, may become the cornerstone of a specific-quality virtuous circle within a territorial approach, having a positive impact contributing to economic, sociocultural and environmental sustainability.132 131 Barjolle, Paus, & Perret, supra note 54, at 12. 132 FILIPPO ARFINI, GIOVANNI BELLETTI & ANDREA MARESCOTTI, PRODOTTI TIPICI E DENOMINAZIONI GEOGRAFICHE. STRUMENTI DI TUTELA E VALORIZZAZIONE, 16 (2010) (originating in France but also extendeding to Italy through the idea of “valori e valorizzazione del prodotto tipico: l’idealtipo del circolo virtuoso”.). 35 Figure 4: The Original-Linked Vicious Circle Source: Giovannucci et al.133 A literature review on methods to analyze the impact of GIs shows a clear distinction between objective and subjective approaches. These studies demonstrate the ability of GI production systems to create or reinforce positive effects on rural development, which are welcome in marginal areas. However, these studies also show that there is no single wellestablished method to measure the impacts of a GI system or protection scheme.134 133 GIOVANNUCCI ET AL., supra note 19. 134 Barjolle, Paus, & Perret, supra note 54, at 7. 36 Nonetheless, there is a clear need for further research on impact assessment for a quantitative representative sample of GI systems.135 After all, as with any other economic activity, it is important to consider consequences beyond pure monetary and marketing data. Sales, market access and profit are extremely important, while many other elements are a fundamental part of the concept of GIs such as social and community development, traditional knowledge and diverse product conservation, environmental protection or even fair trade. However, public regulation and implementation of certain policies, along with the bureaucracy linked to registration and control procedures, hinder the efficiency of GIs.136 Global sales of GI products are estimated to be over €50 billion.137 The market value for French GI products, specifically, is around €19 billion,138 while Italy alone retains 430 registered GIs that employ about 300,000 persons and generate a value of €12 billion.139 Similarly, argane oil represents between 25% and 45% of the local population income in Morocco (around 100 female cooperatives exist around the GI), Darjeeling tea employs over 50,000 people in India, and the turnover of Rooibos in South Africa is estimated to be over €22.5 million.140 The objective method measures impact differential between two states allowing quantitative comparison between products. On the other hand, the subjective method measures 135 Id. at 12. 136 Bertil Sylvander, Louis Lagrange & Christine Monticelli, Les Signes Officiels de Qualité et d’Origine Européens, 299 ÉCONOMIE RURALE 7, 23 (2007) (analyzing how to improve the system in order to face the main critics received from those opposing to the GIs systems. The French and European isolation were criticized and expressly required to take into account the international demands together with the need of improving the coherence, efficiency, and effectiveness of their public legal instruments). 137 WORKSHOPS ON GEOGRAPHICAL INDICATIONS: DEVELOPMENT AND USE OF SPECIFIC INSTRUMENTS TO MARKET ORIGIN-BASE AGRICULTURAL PRODUTS IN AFRICAN-ACP COUNTRIES 4 (2014), available at pdf. http://ec.europa.eu/agriculture/events/2014/gi-workshops/training-brochure_en.pdf (last visited Nov. 12, 2016). 138 Id. at 3. 139 Id. at 4. 140 Id. at 26. 37 other indicators directly linked to GIs. The issue is directly connected the feasibility of the establishment of a GI system and its conditions, both, objective and subjective, that may be considered by any producer before joining a GIs. While the approach and analysis focus on the individual interest of a producer, considerations of the consumer, the community, the public, and the environment must also be taken into account. Referring the issue of the economic impact of GIs would be relevant while facilitating the establishment of a diagnostic system to evaluate why, when, and how it may be established and the parameters to measure its feasibility. The economic rationale for GIs is the correction of a market failure caused by two main problems. The first problem is the problem of asymmetric information and the unwillingness of consumer to pay a higher price. The second problem is that, as a public good, the reputation of GIs could be used by those outside the production area. However, if GIs are protected as IPR, both problems are solved. A consumer can be certain that the product branded with the GI will incorporate the expected quality and rely on the product’s origin indicated on the label, with quality and origin being inextricably associated.141 The concern of any farmer is how to make a sustainable living from the difficult business of agriculture. Agricultural products need to be sold at the highest possible price while reducing productions costs for the producer to make a viable living. These uncontested assumptions, based on cost benefit analysis and market driven acts, are affected by external elements such us direct public aid to agriculture, regulations and tariffs, sanitary and phytosanitary measures, and limitations to market access, along with traditional meteorological, land, and water conditions.142 141 GIOVANNI BELLETTI ET AL., THE EFFECTS OF PROTECTING GEOGRAPHICAL INDICATIONS WAYS AND MEANS OF THEIR EVALUATION, 1 (2011). 142 María Paola Rizo, La Protección de las Indicaciones Geográficas, PERSPECT. RURAL. NUEVA ÉPOCA 45 (2012). As Chief of the Section on GIs and Industrial Designs at the WIPO Division for Trademarks and Designs, Rizo 38 The challenges are grounded on the inelastic nature of agricultural markets since demand for food is not just market-based and farmers are mainly price-takers in the food system.143 This association between the quality of a product and its geographical origin is not arbitrary and is one of the main features of GIs. Evidence from existing agreements and registers demonstrates regional specialization within product categories. That is the true of Cuba (cigars), the Czech Republic (beers and malt), or France (cheeses), among many others, although the increasing amount of registered GIs provides product diversity.144 On the distribution and purchase side, the high concentration of buyers also has important consequences on any economic analysis.145 Food chains link consumers to farmers through direct sales (only about 2% of the fresh food market in volume terms)146 while farmers tend to have weaker negotiating power in the food chain even though they are key players in the production of raw materials.147 Product specifications defining a GI have wide socio-economic implications implying not just recognition of industrial property but also socio-economic fundamental rights.148 Some of develops on the great deal of effort required for developing a geographical indication scheme through an industrial property right. 143 Id. at 49. 144 RANGNEKAR, supra note 40 at 14. 145 YOU ARE PART OF THE FOOD CHAIN: KEY FACTS AND FIGURES ON THE FOOD SUPPLY CHAIN IN THE EUROPEAN UNION (2015), available at http://ec.europa.eu/agriculture/markets-and-prices/market-briefs/pdf/04_en.pdf. (“Concentration in the food processing industry and retail sectors is higher than in the agricultural sector, endowing downstream actors with higher bargaining power. Though this development is not problematic in itself, the abuse of bargaining power is at the basis of unfair trading practices in the food chain. This is a reality confirmed by all stakeholders under the High Level Forum for a Better Functioning Food Supply Chain, who acknowledged the existence of unfair practices. As a result, representatives from across the food chain agreed on a list of principles of good practice in contractual relations, while part of the food chain (the food industry and food distribution) has engaged in a voluntary scheme for the implementation of these principles.”). 146 Id. at 2. 147 Id. at 5. 148 Teresa Acampora & María Fonte, Productos Típicos, Estrategias de Desarrollo Rural y Conocimiento Local, REV. OPERA 191, 212 (2007). 45 least not compromised—are: (i) strong organizational and institutional structures; (ii) equitable participation; (iii) strong market partners; and the envisaged (iv) effective legal protection.180 Over the last few decades, many nations have completed GI legislation to take advantage of international IPR frameworks promoted by the TRIPS Agreement, the WTO, WIPO, FAO, and the European Union.181 This support has been forthcoming because GI systems may help less favored rural communities overcome sustainable development challenges.182 It is important to underscore that the uniqueness of products provides the main justification for protection under a GI due to the significance of preserving the integrity of certain assets. In many cases, this represents the result of centuries of human development, the effort to achieve the desired result, and the strict relationship with the territory of origin.183 Yet, perceived deficiencies in international IPR generates a debate that may conflict with the general health and welfare of a society as a whole.184 In fact, evidence linking the level of IPR protection to economic development is unconvincing. All countries, developed and developing, must work together to adapt existing IPR and GI systems to address the disparate positions of the participants and the uncertainties created.185 180 Id. at 93. 181 N. Parrott, N. Wilson & J. Murdoch, Spatializing Quality: Regional Protection and the Alternative Geography of Food, 9 EUR. URBAN REG. STUD. 241 (2002). 182 Id. at 245. 183 Stefania Fusco, Geographical Indications: A Discussion on the TRIPS Regulation after the Ministerial Conference of Hong Kong, 12 MARQ. INTELL. PROP. L. REV. 197, 260 (2008). 184 Alan S. Gutterman, The North-South Debate Regarding the Protection of Intellectual Property Rights, 28 WAKE FOREST L. REV. 89, 90 (1993). 185 Id. at 137–8. 46 In 2010 the European Commission186 collected data covering the 2,768 GIs in the European Union at that time and estimated an average value premium rate in Europe over non- GI products of 2.23.187 The total sales value of GI products were €54.3 billion, more than half (56%) accounted for by wines and 15% by spirits.188 Of the €11.5 billion in GI-protected exports, the United States was the leading importer at €3.4 billion including 30% of the food and beverages exported by the European Union.189 Therefore, the economic interest for the European Union is clear, emphasizing the economic rationale for the protection of GIs and its socioeconomic impact.190 However, the sales value of the European food and drink sector in 2010 was estimated at €956 billion while the share of GIs was only 5.7%.191 Exports of GI products to third countries were €11.5 billion, representing 15% of all extra-European Union trade for food and beverages (wines, 51%; spirits, 40%; agricultural products and foodstuffs, 9%).192 One of the presumptions grounding Regulation EEC 2081/92 when establishing the European protection for agricultural quality products was that consumers were interested in knowing the origin of products: “Whereas in view of the wide variety of products marketed and of the abundance of information concerning them provided, consumers must, in order to be able 186 CHEVER ET AL., supra note 14. (This is an updates version of the previous report Value of Agricultural Production under Protected Designations of Origin (PDO) and Protected Geographical Indications (PGI) (Tender N° AGRI–2008–EVAL–02) performed in 2009 for the DG AGRI of the European Commission. The study aimed to update the database for the period 2009-2010; expand and complete the database with data on the volume, value and trade of production for each wine, aromatised wine and spirit registered under GI for the period 2005-2010; analyse the value premium received by products bearing a registered name, to assess the evolution of value, volume and trade of geographical indications during the period 2005-2010; and, finally, to compare the situation with standard products and between different GI products and sectors at European Union and Member State levels.). 187 Id. at 10 (Executive Summary). 188 Id. at 4. 189 Id at 6. 190 See Bramley & Kirsten, supra note65. See also RANGNEKAR, supra note 40. 191 CHEVER ET AL., supra note 14, at 4. 192 Id. at 6. 47 to make the best choice, be given clear and succinct information regarding the origin of the product.”193 The Commission’s survey of 16,000 consumers across sixteen western European countries verified this interest in origin and indicated that consumers are more interested in tradition over mass-produced food items. The Dolphins and Siner-Gi projects, as well as the FAIR Research, corroborated this conclusion.194 In other words, consumers will pay a premium if quality promises are delivered, implying that interest in origin is part of wider trend of changing consumption patterns.195 For the United States, the main issue is the economic impact of limiting the use of GIs that are considered common or generic food names. The European Commission approach is considered too restrictive and certain affected industries in the United States—particularly 193 See Council Regulation 2081/92, supra note 76. 194 The DOLPHINS Project “Development of Origen-Labeled Products: Humanity, Innovation, and Sustainability” was a European Union sponsored research initiative on the effects of GIs on local econonomies that examined how GIs were protected by public policies in various EU member coountries and how they might be harmonized. The objective of the Strengthening International Research on Geographical Indications (SINER-GI) project was to build and share a coherent scientific basis worldwide, regarding economic, legal, institutional, and socio-cultural conditions of success of GIs, in order to support their legitimacy in the framework of WTO negotiations. SINER-GI was a research project and network supported by the European Community (Priority 8.1: Policy-oriented research) from May 2005 to July 2008. It was coordinated by Bertil Sylvander up to 2007, and by Gilles Allaire from 2007 up to the termination of the Project, to build and share a coherent worldwide scientific basis regarding economic, legal, institutional and sociocultural conditions of success for GIs. GENERAL DESCRIPTION: SINER-GI AND DOLPHINS EU PROJECTS, http://www.origin-food.org/2005/base.php?cat=20 (last visited May 13, 2016). Previously completed in 1999, the FAIR research projet co-directed by Dominique Barjolle and Bertil Sylvander was also dedicated to the specific conditions and institutional requirements for the development of PDO and PGI products on twenty-one supply chains in seven countries to provide an assessment and recommendations for implementation of European Council Regulation (EEC) No 2081/92. See Dominique Barjolle & Bertil Sylvander, Some Factors of Success for “Origin Labelled Products” in Agri-Food Supply Chains in Europe: Market, Internal Resources and Institutions, in THE SOCIO-ECONOMICS OF ORIGIN LABELLED PRODUCTS IN AGRI-FOOD SUPPLY CHAINS: SPATIAL, INSTITUTIONAL AND CO-ORDINATION ASPECTS”, INRA ACTES ET COMMUNICATIONS 45–71 (1999), available at http://ageconsearch.umn.edu/bitstream/241033/2/Barjolle%20and%20Sylvander%20(1999)%20Some%20factors%2 0of%20success%20for%20origin%20labelled%20products%20in%20agri- food%20supply%20chains%20in%20europe.pdf. 195 RANGNEKAR, supra note 40, at 27. 48 dairy196 and meat—argue that everyone should have the right to use common names in marketing those well-known foods and oppose any attempt to monopolize common or generic names that have become part of the public domain.197 Many of these products are made in significant volumes around the world, not just in the United States, under these generic food names and the prospect of re-labeling products and the anticipated loss of sales could easily involve billions of dollars.198 In the United States, the United States Dairy Export Council estimates that just the top cheese products that could be impacted represent at least 14% of United States cheese production, valued at $4.2 billion a year.199 The different approaches between the European Union and the United States are also a fundamental ground for discussion considering the weak competitiveness of the EU food industry.200 It is not just generic or common food names versus GIs, or economic interests on both sides, but rather different agricultural and foodstuff marketing models and even a political 196 INTERNATIONAL DAIRY FOODS ASSOCIATION, http://www.idfa.org (last visited Oct. 24, 2016). The International Dairy Foods Association (IDFA), represents the nation's dairy manufacturing and marketing industries and their suppliers, with a membership of 550 companies in a $125-billion a year industry. IDFA is composed of three constituent organizations: the Milk Industry Foundation (MIF), the National Cheese Institute (NCI), and the International Ice Cream Association (IICA). IDFA's nearly 200 dairy processing members run nearly 600 plant operations, and range from large multi-national organizations to single-plant companies. Together they represent more than 85% of the milk, cultured products, cheese, ice cream and frozen desserts produced and marketed in the United States. 197 The Common Food Names organization represents the main lobby in this matter. For more information see CONSORTIUM FOR COMMON FOOD NAMES, supra note 52. 198 Id. 199 CONSORTIUM FOR COMMON FOOD NAMES, supra note 52. 200 J. H. M. WIJNANDS & B. M. J. VAN DER MEULEN, COMPETITIVENESS ON THE EUROPEAN FOOD INDUSTRY. AN ECONOMIC AND LEGAL ASSESSMENT 2007, 273 (2006). 49 issue considering the importance of the European budget to support the agricultural policy, farms and its own middle class.201 The battle is pointing to the use of names—generic or GIs depending on who address them—not just in the European Union and the United States, but also in many other markets around the world,202 however, the consequences of the debate should be understood in proper terms. In fact, two third of the legal systems around the world follow the European Union sui generis GI model while one third use a trademark system similar to the United States.203 Many authors claim that GIs were the earliest types of trademark and its legal is deeper and broader due to its permanent interconnection with the place of origin.204 Obviously, there exists an immediate connection with consumers right to choose and be informed while the point of departure is the nature of foodstuff names.205 Economic interests and legal frameworks are addressed to the market but consumers may have an important say on both sides of the Atlantic.206 Actually, as one of the fathers of United States Trademark Law Edward Rogers, stated more than a hundred years ago: 201 Loïc Sauvée & Egizio Valceschini, Agro-Alimentaire: la Qualité au Coeur des Relations entre Agriculteurs, Industriels et Distributeurs, DEMETER 181 (2004). 202 Id. at 224 203 GIOVANNUCCI ET AL., supra note 19, at 14 and 124 (developing on the fragmented, overlapping, and unclear national protection systems with 167 countries actively protecting GIs as a form of IPR fall into two main groups: 111 nations with specific or sui generis systems of GI laws and 56 that prefer to use their trademark systems). 204 Blakeney, supra note 53, at 629. 205 Ricardo Rafael Ulloa Castañeda & José María Gil Roig, Importancia de la Marca Ternasco de Aragón con IGP Medida a Través del Método de Análisis Conjunto desde el Punto de Vista del Consumidor, XI REVISTA MEXICANA DE AGRONEGOCIOS 408–423 (2007) (confirming its relevance to consumers). 206 Id. at 412. 50 The importance of any industry and the quality of the goods it produces can pretty accurately be gauged by the extent to which trademarks (or GIs) are used in the industry and on the goods. For, if the market is at all extensive, and the goods are sold generally, a means of identification to the ultimate purchaser is essential, and unless the quality of the product is good, no producer cares to identify it as his.207 1.4. Complexities Deriving from Lack of Consensus on GI Concept in a Globalized but Legally Fragmented World All typical and unique products represent a mixture of tradition and innovation, physicality and symbolism, mechanization and craftsmanship, endogeneity and exogeneity, myths and realities.208 The variety of products and conceptual hierarchies vary from time to time, place to place and even from culture to culture, since food preferences differ according to conventions of place, time, and cultural perception. There is often a distinction between north and south; the first difference is grounded on functional and spatial approaches to food quality oriented to economic efficiency while the second one is associated with territorial, social, and cultural embeddedness within traditions of regional distinctiveness.209 Much has been written and discussed on the uniqueness and immaterial quality of wines, spirits, and agricultural products, however, there is still no global consensus on regulation, legal protection, and enforcement of industrial property rights directly linked to territories and producing communities. 207 Edward S. Rogers, Some Historical Matter concerning Trade-Marks, 9 MICH. L. REV. 29 (1910), reprinted in 62 TRADEMARK REP. 239, 250 (1972). 208 ALESSANDRO PACCIANI ET AL., GUIDA PER LA VALORIZZAZIONE DEI PRODOTTI AGROALIMENTARI TIPICI. CONCETTI, METODI E STRUMENTI, 13 (2006) (“Prodotto è “tipico” quando presenta caratteristiche costanti proprie di una determinata categoria; che ne è peculiare, caratteristico…. un prodotto che presenta alcuni attributi di qualità unici che sono espressionedelle specificità di un particolare contesto territorial.”). 209 Parrott, Wilson, & Murdoch, supra note 180, at 256. 51 In the United States, consumers are willing to pay more for food safety and quality.210 As explained in the lemon market theory, consumers can distinguish credible claims from noncredible claims about food quality and safety, therefore, reputation and credibility in the marketplace is rewarded by increased market share and higher profits.211 The importance of GI regulation and its reputation are promoted with four basic suggestions: (i) increasing visibility and decreasing irresponsibility; (ii) increasing accountability and decreasing externalities; (iii) increasing reliability and decreasing fraud; and (iv) increasing traceability and decreasing anonymity.212 A different perspective, however, distinguishes four groups of quality attributes regarding food products: (i) sensory attributes, such as taste, tenderness and juiciness, (ii) health attributes, (iii) process attributes in relation to animal welfare, the environment, or organic production, among other factors, and (iv) convenience attributes, saving time or energy for the consumer due to storage, preparation, eating, and disposal.213 This perspective examines the complexities involved in these attributes, considers how consumers form judgments on the quality or safety of a product, and shows how these judgments trade off against price in consumer food choice. The results show that many of these complexities are still poorly understood but the market has clearly shown a development towards more differentiated products in terms of quality and safety.214 Existing examples can be found in the United States such as Idaho potatoes, Florida 210 Denis Stearns, On (Cr)edibility: Why Food in the United States May Never Be Safe, 21 STAN. L. & POL'Y REV. 245, 253 (2010). 211 Id. at 259. 212 Id. at 267–74. 213 Grunert, supra note 2, at 374. 214 Id. at 385. 52 oranges, or the increasing variety of wines. However, the champagne designation issues215 demonstrates the continued failure of the United States to comply with rules established under the TRIPS Agreement.216 Despite the many FAO and UNCTAD studies on GI importance for development,217 a good example in the added value provided for coffee,218 as it is for wine initially mainly in western societies but nowadays also produced in many other areas. However, there is no consensus to establish common legal solutions to the main conflicts on GIs. It is accepted that the structure of governance regimes impacts the effectiveness of the marketing associated with GI systems as a form of communal intellectual property combined with privately held resources to enable the exclusive production and marketing of traditional specialty food and beverage products.219 While only a minority of GIs originate in developing countries, there is potential to use this tool to reduce poverty, foster market access, and improve consumer awareness. In fact, many cases and reports provide valuable insights on how to set up and monitor geographical indications, share costs and benefits, as well as interpret and apply legal frameworks.220 Although there is agreement on its potential there is not a clear consensus on the framework for legal protection and the means to enforce it. 215 Tim Jay & Madeline Taylor, A Case of Champagne: A Study of Geographical Indications, CORPORATE GOV'T EJOURNAL 1 (2013). 216 Leigh Ann Lindquist, Champagne or Champagne-An Examination of US Failure to Comply with the Geographical Provisions of the TRIPS Agreement, 27 GA. J. INT'L & COMP. L. 309 (1998). 217 See, e.g., Ermias Biadgleng & Jean-Christophe Maur, The Influence of Preferential Trade Agreements on the Implementation of Intellectual Property Rights in Developing Countries: A First Look, UNCTAD-ICTSD PROJ. IPRS SUSTAIN. DEV. PAP. (2011). 218 See, e.g., Johnson, supra note 20. 219 Skilton & Wu, supra note 41, at 146–47. 220 GIOVANNUCCI ET AL., supra note 19. 53 In a globalized economy, the increased ruling power of the market may generate a race to the bottom based on quantitative and price models. Economic models for commodities such as cocoa, coffee, rice, sugar, or bananas, show that the industry receives most of the profit while small farmers remain weak. The strong superiority of developed industries, together with the multinational foodstuffs distribution network, grants full control of product qualities, market access, and purchase conditions. It is easy to wonder about the gap between exporters and importers, those growing and harvesting the product, and those marketing and selling the final product to consumers.221 Perhaps the best possible system of fair trade would establish a legal framework to facilitate the economic added value mainly remaining in the territory. This is one of the cornerstones of GIs not just granting protection the product, but also pursuing the general interest, respecting traditions, fostering quality, and developing systems of production to ensure a better distribution of profit among those embedded in the territory and effective tools for promoting locally-based development.222 It is not possible to understand GIs without accepting diversity, quality, and fair development; for many that is essential to explain the comprehensive legal concept of GIs and distinguish with the distinctiveness provided by trademarks. 2. INTERNATIONAL REGULATION ON GIS As with other IPR protections, the effectiveness of GI systems depends, to a large extent, on formal governance regimes and the controlling legal framework.223 Any discussion on 221 Detailed information can be obtained from the International Cocoa Organization, located in London, https://www.icco.org (last visited Nov. 8, 2016). 222 WIPO, GEOGRAPHICAL INDICATIONS, AN INTRODUCTION 41 (2010), http://www.wipo.int/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf. 223 See Skilton & Wu, supra note 41, at 145. 54 unification or harmonization of law suffers from the false assumption that it is a simple single conception. Many are apt to think only of legal texts and regulations when referring to uniformity of law in the international field. But practices and ideas are also relevant only after reaching certain fixity on the judicial and professional tradition.224 Thus, in the matter of GIs we have to consider the law in its living content when it constitutes the law as it is rather than the illusion of law.225 Legal concepts are often developed, adapted to time and place, and extended to cover minor details but may sometimes deviate from the essence of the regulated reality. The variety of denominations, typologies, legal texts, and practicalities of GIs create confusion that hinders understanding and limits potential impacts.226 The existing international agreements explain the difficulties certain jurisdictions face when deciding on the best possible system to regulate quality agricultural products. The regulatory evolution of GIs shows an unresolved tension between aspirations for extraterritorial application of rights in geographic names as a public right and pure IPR where territoriality is the general rule.227 The aim of protecting GIs against false and deceptive goods has been the leitmotiv for the old Europe. Initially, in early agreements, the terms “false” and “deceptive” were confused and the distinctiveness of indications of source was not evident since not all consumers were familiar with the specific goods and places. Summarizing current international legal text regulating GIs—with special attention given to the arguments of those opposing to their development—suggests that the idea is to clarify 224 Ladas, supra note 1, at 164-65. 225 Id. 226 RUSSO, supra note 2, at 5 (referring to GIs as a “legal maze”). 227 Amy Cotton, 123 Years at the Negotiating Table and Still No Dessert. The Case in Support of TRIPS Geographical Indication Protections, 82 CHI.-KENT L. REV. 1295, 1312 (2007). 61 Nothing in this section shall require a Member to prevent continued and similar use of a particular geographical indication when having used it in a continuous manner with regard to the same or related goods or services in the territory of that Member either (a) for at least 10 years preceding 15 April 1994 or (b) in good faith preceding that date.249 Likewise, Article 24(5) on trademarks provides similar protection when acquired or registered in good faith before the date of the application of the TRIPS Agreement or before the GI was protected in its country of origin. Trying to reach a similar balance among members in favor and reluctant to GIs, Article 24(6) shows a compromise with generic and common names. It requires respect of existing rights when indications are “(i)dentical with the term customary in common language as the common name” or “with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.” However, other relevant exceptions affect the practical applicability of the TRIPS Agreement. Article 24(7) establishes a time limit of five years and a “bad faith” contingency for exercising the right to invalidate or refuse registration of trademarks that contain an indication while Article 24(8) recognizes the right of a person to use his name or the name of their predecessor in business in the course of trade as far as it does not mislead the public. Furthermore, Article 24(9) exempts member states from protecting indications that are either not protected in their country of origin, that cease to be protected in their country of origin, or that have fallen into disuse in that country. Despite the differences in the level of protection between Articles 22 and 23, there exist some commonly shared features: (a) in jurisdictions that implement Section 3 through a sui 249 TRIPS Agreement, Art. 24. 62 generis mechanism, GIs are largely available as a public or collective right that is not vested in an individual firm, person or enterprise; (b) the scope of protection available does not include the right to license or assign a GI; (c) the domain of protection is narrow in comparison to trademarks where “confusingly similar marks” will be considered infringing; (d) the duration of protection tends to be indefinite as long as the GI remains in use; (e) as GIs cannot be licensed or assigned, the good must originate in the designated area of geographical origin.250 2.1.2. Negotiations and Proposals to Reinforce the Global System of GI Protection The obligation of the TRIPS Council to conduct further negotiations on the establishment of a multilateral system of notification and registration of GIs was raised by Turkey and endorsed by other countries in 1999.251 Since then, the diplomatic agenda failed to expand the current protection blaming the ideological division, the lack of dynamism, and the unwillingness to advance despite negative consequences for the system of protection.252 The debates about GIs are much more than just intellectual property arcana since they affect longstanding, high-stakes negotiations over trade in agricultural goods.253 Many countries are simply waiting to see whether the European Union and the United States agree on the matter.254 Only a meaningful and truly multilateral system could fulfill the TRIPS’ mandate.255 250 RANGNEKAR, supra note 101, at 6. 251 WTO Doc. WT/GC/W/249, July 13, 1999. 252 Calboli, supra note 85, at 194. 253 Hughes, supra note 39, at 302. 254 Teresa Mera Gómez, Ampliar o No Ampliar la Protección de las IGs, Esa Es la Pregunta, Año III, No 4 ANU. ANDINO DERECHOS INTELLECT. 367, 394 (2008). 255 Jose Manuel Cortes Martin, Trips Agreement: Towards a Better Protection for Geographical Indications, 30 BROOK. J. INT'L L. 117, 183 (2004). 63 The current scope of protection for GIs under the TRIPS Agreement consists of two main elements: (1) protection against use of GIS misleading the consumer and (2) protection against the use of indications in a manner that is unfair competition.256 However, differences in how the fundamental elements of the scope of protection are articulated in Articles 22 and 23 constitutes the basis for demands on reform and extension of the system relevant to the economic value of GIs.257 Three main themes were identified from submissions to the TRIPS Council: (i) the “negotiating balance” achieved at the time of the Uruguay Round and the justification or rationale for different levels of protection in Section 3; (ii) insufficiency or adequacy of the scope of protection available under Article 22 (in contrast to Article 23) that distinguishing effective and absolute protection; and (iii) the substantive and potential impact of GI-extension on trade, consumers, and TRIPS obligations, affecting the traditional North-South divide,258 and the different Old World-New World approach to GIs.259 Conducting research on the deadlock of GI-extension, Rangnekar in his UNCTAD/ICTSD study suggested three areas to assist the TRIP Council: (1) develop systematic economic and statistical research on GI-protection; (2) review the economic value of GI-extension and the appropriate legal system to fulfill the obligation along with strategies to promote the commercialization of GIs; and (3) acknowledge and assess 256 TRIPS Agreement, note 8, at Artsnote 8. 22-24. 257 Felix Addor & Alexandra Grazioli, Geographical Indications Beyond Wines and Spirits, 5 J. WORLD INTELL. PROP. 865 (2002). 258 Parrott, Wilson, & Murdoch, supra note 180, at 256 (studying the alternative geography of food underpined by “orders of worth” arranged into hierarchies that vary from place to place and consequently food qualities are differentially assessed and evaluated in line with the differing convention hierarchies: economic and efficiently oriented in the North and deeply embedded in social and cultural factors in the South). 259 RANGNEKAR, supra note 101, at 7 and 8. 64 the concessions to be granted in exchange for agreement on GI-extension based on the political reality of multilateral negotiations.260 Because of the deep divide, the negotiations collapsed and post-TRIPs GI protection has not progressed. The Doha Development Agenda of multilateral trade negotiations at the WTO may fail unless a solution to the establishment of a multilateral register for geographical indications on wines and spirits (GIs) foreseen in the TRIPS Agreement is found. European Union insistence on a deal for GIs is now accompanied by demands from several developing countries for an extension of GI protection to their own products.261 In fact, many consider the current emphasis on alcoholic beverages to be both culturally discriminatory and a commercial impediment to the ability to collect rents associated with GIs on various products including certain commodities such as bananas or coffee. Some argue that international GI protection would support rural and traditional products, which in turn would lead to development from within. Nonetheless a development strategy that prioritizes local development goals is increasingly relevant for global agricultural and policy discussions.262 Furthermore, the prominent "foodie" movement is likely to grow and increase its importance.263 There is a need to 260 Id. at 10. 261 R. Banerjee & M. Majumdar, In the Mood to Compromise? Extended Protection of Geographical Indications under TRIPS Article 23, 6 J. INTELL. PROP. & PRACTICE 657, 661 (2011) (referring to the cases of China, Kenya, and India, where over 100 GIs have been recently recognized and registered). 262 See Daniel J. Gervais, Reinventing Lisbon: The Case for a Protocol to the Lisbon Agreement (Geographical Indications), 11 CHI. J. INT'L L. 67 (2010). 263 Danielle Dudding, The Lisbon Agreement: Why the United States Should Stop Fighting the Geneva Act, 18 VAND. J. ENT. & TECH. L. 167, 189 (2015). 65 reach an agreement on the proprietary nature of GIs considering its collective relevance to local communities and then adopt a uniform system for protection.264 In the last two decades, the European Union willingly reinforced and developed the GI system of protection granted under the TRIPS Agreement.265 During the 2003 WTO meeting in Cancun, the European Union requested increased protection for forty-one regional quality products.266 This proposal represented the consolidation of a number of prior attempts to implement Article 23(4) of the TRIPs Agreement. The European Union referred primarily to the three main issues surrounding GIs discussion: the establishment of a multilateral register of GIs, the extension of the protection foreseen for wines and spirits to other products, and the claw-back of certain GIs whose names are usurped worldwide.267 In opposition to the proposals for an extension of the protection of GIs, a communication was introduced on June 29, 2001 by Argentina, Australia, Canada, Chile, Guatemala, New Zealand, Paraguay, and the United States.268 Their main argument referred to the cost of extending the scope of the TRIPS Agreement, the lack of evidence that Article 22 failed to protected GIs, the inexistence of cases 264 Tunisia L. Staten, Geographical Indications Protection Under the TRIPS Agreement: Uniformity Not Extension, 87 J. PAT. & TRADEMARK OFF. SOC'Y 221, 245 (2005). 265 See the different reforms of its Agricultural Products and Foodstuff Regulation mainly in 2006 and 2012, supra note 7. 266 WTO, Geographical Indications: Negotiations Relating to the Establishment of a Multilateral System of Notification and Registration of Geographical Indications, TN/IP/W/11 (Jun. 24, 2002), available at https://www.wto.org/english/tratop_e/trips_e/gi1_docs_e.htm. 267 UNITED STATES DEPARTMENT OF AGRICULTURE, EU RELEASES FINAL LIST OF GEOGRAPHICAL INDICATORS FOR CANCUN 2003 (2003). 268 Council for Trade-Related Aspects of Intellectual Property Rights, Communication from Argentina et al. ¶ 8, IP/C/W/289 (June 29, 2001) [hereinafter Argentina Communication (2001)]. 66 where enforcement failed, and other matters linked to the effectiveness of the application of existing clauses, as well as the potential costs and burdens of the extension.269 The European Union then submitted a detailed proposal in June 2005 known as the TRIPPLUS270 to amend the TRIPS Agreement and establish a multilateral register for wines as an annex to Article 23(4).271 The only way that “absolute” protection for GIs could realistically be achieved would be if there were a clear list of terms and translations that would be agreed in a bilateral or multilateral agreement.272 These registration systems to identify and protect GIs already exist in national trademark offices and, therefore, could be an easy solution to the perceived international conundrum.273 Finally, the TRIPS Agreement was a compromise and protects GIs from three abuses: (i) false or misleading geographical names; (ii) registration of GIs as trademarks; and (iii) dilution of GIs into generic terms.274 Finding consensus between aims, compromises, and needs is the cornerstone of the negotiation, however, no global regulatory solutions have emerged yet. 2.2. International Conventions Regulating GIs International conventions on GIs have been more ambitious in language that efficacious in accomplishment. Unfortunately, the text wording remains reminiscent of United Nations 269 Id. 270 SISULE F. MUSUNGU & GRAHAM DUTFIELD, MULTILATERAL AGREEMENTS AND A TRIPS-PLUS WORLD: THE WORLD INTELLECTUAL PROPERTY (2003). 271 WTO, Geographical Indications: Communication from the European Communities, TN/IP/W/11 (Jun. 14, 2005), available at https://www.wto.org/english/tratop_e/trips_e/gi1_docs_e.htm. 272 Id. 273 Cotton, supra note 224, at 1315–6. 274 Albrecht Conrad, The Protection of Geographical Indications in the TRIPS Agreement, 86 TRADEMARK REP. 11, 44–46 (1996). 67 literature, conceptual differences, and ambiguities dependent on nationalism and local legislation that do not refer global concerns and existing needs.275 Prior to TRIPS there were four fundamental agreements relevant to international protection of GIs: the 1883 Paris Convention for the Protection of Industrial Property;276 the 1891 Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods;277 the 1929 Washington Inter-American Convention for Trademark and Commercial Protection;278 and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration.279 When appellation of origin and indications of source were first included in an international agreement—the Paris Convention—they were left undefined and the level of protection was left to each jurisdiction. The broad concept of Article 10 prohibited the direct and indirect use of false indications on the source of goods or the identity of the producer, manufacturer, or merchant disregarding the features, quality or reputation of the goods. However, the lack of references to consumer deception and potential confusion on geographical origin of the goods resulted in the Madrid Agreement, which provided a higher level of protection and included the principle of national treatment. As a consequence, imported and locally-produced goods should be treated equally—at least after the foreign goods have entered the market. But the limitation of prohibition to deception and therefore excluding the prevention of free riding regarding goods reputation, and the inexistence of civil or criminal sanctions did 275 Hugo Mock, Is an International Trade-Mark Law Desirable Now?, 40 TRADEMARK REP. 3, 4 (1950). 276 Paris Convention, supra note 97. 277 Madrid Agreement, supra note 98. 278 General Inter-American Convention for Trade Mark and Commercial Protection, Feb. 20, 1929, 46 Stat. 2907, 124 L.N.T.S. 357 [hereinafter General Inter-American Convention]. 279 Lisbon Agreement supra note 85. 68 not grant an effective protection. Later on, the Lisbon Agreement resulted in clearly defined concepts, insisted on the quality link between products and their place of origin, and excluded non-geographical names as well as those based on reputation. To understand the main content and regulatory developments of GIs, however, requires an understanding of the main international legal instruments where division exists between GI interests and aims of the European Union and the United States. 2.2.1. The 1883 Paris Convention for the Protection of Industrial Property The Paris Convention is the first international legal instrument that mentions the protection of GIs—then referred as “indications of source” and “appellations of origin”—and applies to industrial property in the widest sense—including patents, trademarks, industrial designs, utility models, trade names, and the repression of unfair competition.280 The Paris Convention was concluded in 1883, revised at Brussels in 1900, then Washington in 1911, the Hague in 1925, London in 1934, Lisbon in 1958, and Stockholm in 1967, before it was amended, again, in 1979. With 176 members, its substantive provisions develop the principles of national treatment, right of priority, and certain innovative common rules.281 The protected scope granted to names but not defined “indications of source” and “appellations of origin” only benefited from certain measures at the border and was extended only to false uses under Article 10, which prohibited uses when they were accompanied by a false, fictitious, or deceptive trade name. This concept was reinforced in 1958 when Article l0bis 280 Stephen P. Ladas, Proposed Reorganization of the Paris Union and the International Industrial Property Organization, 56 TRADEMARK REP. 817 (1966) (analyzing the governance structure of the Paris Union). Ladas also provided very accurate and useful information on the revisions of the Convention. See Stephen P. Ladas, The Revision of the International Convention for the Protection of Industrial Property, 16 J. PAT. SOC'Y 688 (1934). 281 Paris Convention, supra note 97. 69 introduced the denomination of unfair competition,282 and later on with Article 10ter, which referred to false indications and included certain remedies and the right to sue. Article 11bis of the Convention provided the basis for protection against misleading indications of source, including appellations of origin obliging members to provide protection against unfair competition and containing a non-exhaustive list of prohibited acts. However, the Convention does not provide protection when the indication is used in translated form or accompanied by terms such as “kind,” or “type,” or when it is deceptive, i.e. likely to mislead the consumer and it did not provide for special remedies against infringement of these provisions. Under Article 25, any country party to the Paris Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure its application and Article 19 allows the parties to establish special agreements for the protection of IPR. This led to both the 1891 Madrid Agreement and the 1958 Lisbon Agreement. The priority for the United States in the revision of the Convention was the protection of trademarks and other IPR. However, Professor Ladas, a Member of the United States Delegation to the Conference, shared not just his frustration at the “los[s] of many desirable improvements” during the Lisbon revision283 but also on the intended amendments to include misleading in the wording of Article 10,284 referring that eight countries signed a new Arrangement of Lisbon concerning the International Registration of Appellations of Origin.285 The inefficiency of this system of protection originated in the potential falsification of indications that limited other 282 Calboli, supra note 85, at 187. 283 Stephen P. Ladas, The Lisbon Conference for Revision of the International Covention for the Protection of Industrial Property, 48 TRADEMARK REP. 1291, 1318 (1958). 284 Id. at 1312. 285 Id. at 1317. 70 regulations on GIs. Therefore, as a question of fact considering the burden of proof, knowledge of every place name around the world is required to assess any infringement and consider the intention to misuse a GI.286 2.2.2. The 1891 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods The Madrid Agreement initially offered a slightly higher level of protection by providing specific rules for the repression of false and deceptive indications of source that were not conceptually defined.287 Without the establishment of a governing body or a budget, however, and with only thirty-six countries party to the Agreement, the only new members in the last twenty years include Bosnia and Herzegovina, Montenegro, the Republic of Moldova, Serbia, and the Islamic Republic of Iran.288 After the TRIPS Agreement was established not much attention was given to the Madrid Agreement since the last revision in Lisbon on October 31, 1958 (and previously revised in Washington on June 2, 1911, at The Hague on November 6, 1925, and in London on June 2, 1934).289 According to the Agreement, all goods bearing a false or deceptive indication of source must be seized on importation and sanctions must be applied in connection with such importation.290 Procedures for seizure are clearly established in the agreement and it prohibits deceiving the public as to the source of the goods. However, national courts alone decide what 286 Cotton, supra note 224, at 1299–300. 287 Calboli, supra note 85, at 189. 288 Madrid Agreement, supra note 98. 289 Id. 290 Id. 77 were not successful. The main proposed changes to the Lisbon system launched at WIPO in 2011 intended to facilitate the emergence of a multilateral GI system considering the main existing concerns and without endangering prior marks used in good faith,313 although the Working Group on the Development of the Lisbon System has been engaged in a review of the Lisbon Agreement since 2009.314 The Geneva Act followed decades of international controversy that remain even after it opened for signatures in May 2015.315 A study on the Geneva Act examines its potential reconciliation with common-law approach to GIs protection as trademarks.316 Now, with membership opened to intergovernmental organizations such as the European Union or OAPI,317 it is estimated that the number of members will increase from the current twenty-eight to fifty-five.318 The study even suggested—although considered it very unlikely—the possibility of the United States and other common law jurisdiction joining the new Act within the frame of ongoing trade negotiations such as the TTIP.319 But many consider the Geneva Act to be a new missed opportunity to restart multilateral negotiations due to the continued absence of consensus, the entrenched ideological divide, and the incompatibility with trademark-based GI systems.320 In any case, the Geneva Act 313 Gervais, supra note 287, at 145. 314 WIPO, FURTHER DEVELOPMENT OF THE LISBON SYSTEM, http://www.wipo.int/lisbon/en/review.html (last visited Aug 7, 2016). 315 Irene Calboli, The Growing Case for Geographic Indications, JOTWELL (May 10, 2016) (reviewing Daniel J. Gervais, Irreconcilable Differences? The Geneva Act of the Lisbon Agreement and the Common Law, 53 HOUS. L. REV. 339 (2015)). 316 Daniel J. Gervais, Irreconcilable Differences? The Geneva Act of the Lisbon Agreement and the Common Law, 53 HOUS. L. REV. 339, 339 (2015). 317 See supra note 49. 318 Gervais, supra note 302, at 368. 319 Id. at 369. 320 Id. at 371. 78 grants the protection desired by those delegations of the WTO willing to achieve higher protection for geographical indications and obtaining quicker international registration.321 The outcome of the Geneva Act did not bridge the existing gaps on GIs. Although the protection was extended to GIs, the other two main topics were changes to the international registration system and a potential maintenance fee, together with other administrative improvements.322 In fact, the strong words of the Statement on the Adoption of the Geneva Act of the Lisbon Agreement, delivered by the United States Mission, led by Ambassador Pamela Hamamoto, evidence the wounds of a new GI battle: “the long-term interests of the many—and of the system—have been sacrificed for the short-term and narrow interests of the few…we continue to have grave concerns regarding the texts, including with respect to critical issues such as the scope of protection, generalness, trademark protections, and financial sustainability…[and are] unable to join the Geneva Act because the Lisbon members refused to make it compatible with trademark systems.” The United States added that it had “serious concerns regarding the inadequacy of safeguards for (GI) producers.” Furthermore, the United States Mission expressed that it was “extremely disappointed with the process and its outcome which raise fundamental questions about the legitimacy of the new Geneva Act,” and that it had “serious concerns with the precedent set at WIPO.”323 321 Dudding, supra note 252, at 191. 322 For a complete analysis of the Geneva Act, see Micara, supra note 49. See also Dudding, supra note 252. 323 U.S. STATEMENT ON THE ADOPTION OF THE GENEVA ACT OF THE LISBON AGREEMENT (2015), https://geneva.usmission.gov/2015/05/20/u-s-statement-on-the-adoption-of-the-geneva-act-of-the-lisbon-agreement/ (last visited Aug 8, 2016). 79 2.3. Recent Relevant European Trade Agreements Including GIs The European Union manages its trade relations with third countries through trade policy negotiated by the European Commission in close cooperation with the Council and European Parliament, which ultimately approve the overall agreement.324 With a significant development of free trade agreements (FTAs) and region-to-region negotiations, the European Union typology of agreements varies from agreements between neighbor states in Eastern Europe, the Balkans, and the Mediterranean. This is mainly motivated by a desire to promote economic development and political stability along the nearest borders. Partnership agreements with ACP countries are fundamentally motivated by development policy objectives and international compromises previously acquired.325 Many other agreements are largely bilateral, commercially motivated FTAs, including agreements in Latin America between Mexico and Chile, as well as region-to- region negotiations with Central America.326 IPR are among the most important components of the bargaining packages of European FTAs, and GIs are a fundamental matter forced into most agreements, particularly in countries were the subject matter is unknown.327 Developing country concerns depend on the influence of 324 See Pedro Roffe, Intellectual Property Chapters in Free Trade Agreements: Their Significance and Systemic Implications, in EU BILATERAL TRADE AGREEMENTS AND INTELLECTUAL PROPERTY: FOR BETTER OR WORSE? 17 (Josef Drexl, Henning Grosse Ruse- Khan, & Souheir Nadde-Phlix eds., 2014). 325 Stephen Woolcock, European Union Policy Towards Free Trade Agreements (2007), http://www.felixpena.com.ar/contenido/negociaciones/anexos/2010-09-european-union-policy-towards-free-trade- agreements.pdf. 326 For a complete list of agreements currently in force, provissionally applied, signed but not provisionally applied, finalized with negotiations concluded but not yet signed, and those being negotiated see European Commission, TRADE AGREEMENTS, http://ec.europa.eu/trade/policy/countries-and-regions/agreements/index_en.htm (last visited Aug. 14, 2016). 327 Id. 80 the major trading partners and the transposition of the legislative models in existence.328 The European Union supports better protection of GIs internationally and is very active in protecting them through multilateral and bilateral negotiations.329 At a multilateral level, particularly regarding the TRIPs Agreement, the European Union works to extend protection to all agricultural products at the level of protection granted to wines or spirits and negotiates for the establishment of a multilateral register for GIs. At the bilateral level, GIs are protected under specific standalone agreements, as is the case with China,330 and broader FTAs, as with Canada, South Korea, and many others. The European Commission made protection of GIs an integral part of its agricultural and rural development strategy and aggressively extends its protection through FTAs.331 The European Commission even proposed a new trade and investment strategy for the European Union, entitled “Trade for All: Towards a more responsible trade and investment policy.” This adapted its approach to make more responsible policies that it will be more effective and more transparent, projecting not just European interests but also European values.332 The new strategy lays out an up-to-date program of trade negotiations, listings its top priorities as reenergizing the WTO and concluding the TTIP, as well as finalizing the Japanese free trade agreement and the 328 Id. 329 ORIGIN, REDD & INSIGHT CONSULTING, STUDY ON GEOGRAPHICAL INDICATIONS PROTECTION FOR NONAGRICULTURAL PRODUCTS IN THE INTERNAL MARKET 328 (2013), http://ec.europa.eu/internal_market/indprop/docs/geo-indications/130322_geo-indications-non-agri-study_en.pdf (last visited Jan. 9, 2014) . 330 Geographical Indications: Guides and Commitments, CHINA IPR BLOG (Mar, 1, 2015), https://chinaipr.com/2015/03/01/geographical-indications-guides-and-commitments/ (last visited Aug 15, 2016). 331 William A. Kerr, Enjoying a Good Port with a Clear Conscience: Geographic Indicators, Rent Seeking and Development, 28 ESTEY CTR. J. INT'L L. & TRADE POL'Y 1 (2006). See also Josling, supra note 93. 332 European Commission, supra note 326. 81 China investment agreement.333 With the widest range of FTAs in the world, the challenge is now to ensure that they make a difference “for all,” as specifically indicated in the title of the European Communication strategy.334 Among its new aims is also the promotion of fair and ethical trade schemes contributing to the development of more sustainable trade opportunities for small producers in third countries and also fighting against corruption while promoting good governance.335 In country after country, the European Union has used its FTAs to persuade trading partners to impose GI protections.336 This trade practice is concerning anywhere, but it is most deeply troubling where it conflicts with other interests reflected in parallel negotiations, particularly with the United States. For example, Canada agreed, as part of its recent agreement concluded with the European Union, to impose new restrictions on the use of “feta” and other common cheese names.337 This is also relevant in Latin America, Africa, and Asia, where FTAs are expanding but not always with a coherent policy on GIs considering the different interests at stake. The main conclusions on the influence of trade agreements for the implementation of IPR in developing countries are two-fold. Being clearly drivers of significant reform in countries, and therefore a positive impact, the implementation constitute a real and complex challenge for 333 Id. 334 Id. 335 Id. 336 Letter on Cheese Focus to Agriculture Secretary Vilsack and U.S. Trade Representative Froman, from U.S. Senators (Mar. 11, 2014) available at http://www.commonfoodnames.com/wp-content/uploads/CCFN-Letter-to- Michael-Froman-12-20-2012.pdf (last visited Nov. 14, 2016). 337 Comprehensive Trade and Economic Agreement (CETA), Canada-European Union, Consolidated CETA Text, Ch. 22, Intellectual Property, Sept. 26, 2014, available at http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf [hereinafter CETA Agreement]. 82 developing countries often unable to comply with their compromises338 Often partners to these agreements may not have entirely assessed the extent and precise meaning of the commitments they are entering into.339 The aim of this section is to review the main FTAs of the European Union,340 particularly those with Canada and South Korea, where the regulation of GIs may provide certain solutions to the current debate. 338 Ermias T. Biadgleng & Jean-Christophe Maur, The Influence of Preferential Trade Agreements on the Implementation of Intellectual Property Rights in Developing Countries: A First Look, UNCTAD-ICTSD Project on IPRs and Sustainable Development Paper No. 33 (November 2011), available at http://papers.ssrn.com/abstract=1962832 (last visited Mar 25, 2014). 339 Id. at 27. 340 There are many other cases that will not be currently referenced, such as the case in Ukraine. See D. O. Romashchenko, Legal Regulation of Geographical Indications Using in European Union in the Context of Association Agreement: Practical Issues, JE EUR. L. 157–62 (2016). For Central American FTA, see also Maria Cecilia Mancini, Localised Agro-Food Systems and Geographical Indications in the Face of Globalisation: The Case of Queso Chontaleño, 53 SOCIOLOGICA RURALIS 180 (2013). 83 Figure 5: EU Trade Agreements Worldwide (July 2016) Source: European Commission, Europa.341 EU & Custom Union (Andorra, Monaco, San Marino, Turkey) Preferential Trade Agreement being Negotiated European Economic Area (Norway, Iceland, Liechtenstein) Potential for Free Trade Partnershi Preferential Trade Agreements in Places Stand-Alone Investement Agreement being Negotiated Preferential Agreements Awaiting Adoption/Ratification Preferential Agreement in the process of Modernization 341 European Commission, supra note 326. 84 2.3.1. Canada: The Experience of the Comprehensive Economic and Trade Agreement (CETA) The agreement on GIs under the European Union-Canada Comprehensive Economic and Trade Agreement (CETA),342 reached in October 2013,343 is particularly relevant considering the it involves a key partner of the United States under the North American Free Trade Agreement (NAFTA).344 In October 2008, after negotiations were launched by Prime Minister Stephen Harper of Canada and President Nicolas Sarkozy of France during the Canada-European Union Summit, a joint study was released assessing the costs and benefits of a closer economic partnership.345 Actually, CETA was projected to create business opportunities for a large number of sectors including advanced manufacturing, the automotive industry, chemicals and plastics, agriculture and agri-food, food processing, metals and mineral products, fish and seafood products, information and communications technology, services, investment, and government procurement.346 But the interest of the European Union was not just in its 0.08 expected GDP 342 CETA Agreement. For a detailed description of the negotiation process and main concerns see Crina Viju & William A. Kerr, Agriculture in the Canada-EU Economic and Trade Agreement, 66 INT'L J. 677 (2010). 343 On August 5, 2014, the final text for the CETA was reached and on September 26, 2014, the full text was published and signed by Canada. On January 22, 2016, Canada’s newly elected Prime Minister Justin Trudeau expressed support for CETA at the World Economic Forum in Davos, further encouraging ratification. The federal minister of international trade, Chrystia Freeland refers to it as the “gold standard of trade agreements.” See The Council of Canadians, TRUDEAU’S TRADE MINISTER SAYS CETA “GOLD STANDARD OF TRADE AGREEMENTS,” http://canadians.org/blog/trudeaus-trade-minister-says-ceta-gold-standard-trade-agreements (last visited Aug 15, 2016). See also GOVERNMENT OF CANADA, TECHNICAL SUMMARY OF FINAL NEGOTIATED OUTCOMES. CANADAEUROPEAN UNION COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT (2013), available at http://actionplan.gc.ca/sites/default/files/pdfs/ceta-technicalsummary.pdf (last visited Jan 13, 2014). 344 North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993) [hereinafter NAFTA Agreement]. 345 GOVERNMENT OF CANADA & EUROPEAN COMMISSION, ASSESSING THE COSTS AND BENEFITS OF A CLOSER EUCANADA ECONOMIC PARTNERSHIP, http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_141032.pdf (last visited Aug 15, 2016). 346 See Daniel L. Kiselbach, The Canada-EU Free Trade Agreement Demystified: New Opportunities for Trade, Investment and Government Procurement, 9 GLOBAL TRADE & CUSTOMS J. 52 (2014). 85 increase and facilitating commerce with its eleventh-largest trading partner; it was also interested in the importance of Canada in its future deals with the United States. In fact, the importance of agriculture for Canada and its role in NAFTA made the outcome of this agreement fundamental for the expectations under TTIP negotiations. Given the agricultural policy constraints in both the European Union and Canada, only limited liberalization was expected in the agricultural sector;347 however, CETA is now considered the European Union’s most comprehensive FTA to date as a “gold standard,”348 groundbreaking agreement, due to its ambitious liberalization of trade and investment creating significant economic opportunities and also for its unprecedented commitments from Canada on GIs.349 The partners, as in similar trade agreements, resolved to further strengthen their close economic relationship in certain fundamental areas and build upon their respective rights and obligations under the WTO and other multilateral and bilateral instruments of cooperation. Although Chapter 20 of the FTA regulates IPR, Canada already recognized the European GIs for wine and spirits before CETA negotiations began.350 Canada is a good reference regarding deregulation of international trade in wine, not being among the main producer or consumer countries, but it has bridged in this area between the European Union and the United States, considering its legal, commercial and policy differences.351 125 of the 145 European Union priority protected GIs will enjoy, in full, the high protection reserved by the TRIPS Agreement to 347 Viju & Kerr, supra note 326, at 693. 348 The Council of Canadians, supra note 327. 349 EUROPEAN COMMISSION, DIRECTORATE-GENERAL FOR TRADE, supra note 330, at 30. 350 Agreement Between Canada and the European Community on Trade in Wines and Spirit Drinks, Can.-Eur., Jun. 1, 2004, E104976. 351 Richard Mendelson et al., Wine Trade with Canada: A Case Study in Trade Deregulation, 7 INT'L TAX BUS. L. 91 (1989). 86 wines and spirits, and a prohibition on the use of a GI name even when the true origin of the product is indicated by “kind,” “type,” “style,” “imitation,” or the like. As a consequence, certain products have changed their commercial names respecting GIs (e.g. Port as Pipe).352 A list of thirty-six alleged agricultural product conflicts were identified353 but Canada agreed to varying ways of addressing European Union requests regarding 179 terms used for foods and beer while preserving space for Canadian trademarks holders and for users of commonly used English and French names for food products.354 In short, CETA offers protection to GIs without prejudicing the validity of existing Canadian trademarks while enforcement of GIs in the Canadian market remains a private matter to be argued before the courts. The main results of the agreement can be summarized as follows: • Canada recognizes the European Union system of GIs and Canadian producers will cease labeling and marketing certain products that conflict with this system. Canada will also cease importing products under GIs from third countries despite the third party producers holding the trademark. This measure will mainly affect the United States since Canada is the fourth largest export destination for United States cheeses;355 and The European Union preserved space for Canadian trademark holders and for users of commonly used English and French names for food products; • Canada will provide protection for European GIs without prejudicing the validity of existing Canadian trademarks; 352 YEUNG & KERR, supra note 22. 353 Most of them were represented by cheese and meat products. Fifteen represented conflicts between European Union GIs and Canadian generic products (Feta), eight conflicted with registered trademarks by Canadian or third party producers (e.g. Prosciutto di Parma). See Kiselbach, supra note 346 at 56. 354 GOVERNMENT OF CANADA, supra note 327. 355 Crina Viju, CETA and Geographical Indicators: Why a Sensitive Issue? 7 (2013). 93 • A Working Group on Geographical Indications is established which can add additional GIs to the annexes as they are approved to ensure the functioning of the agreement. The case of South Korea is a good example where both the United States and the European Union have used FTAs to expand the scope of IPRs beyond the level of protection provided by TRIPS Agreement. In the field of GIs, EU-South Korea FTA extends protection by offering all GIs the higher level of protection granted to wines and spirits under Article 23 of the TRIPS Agreement, establishes a register and increases overall protections.370 370 SCHOTT & CIMINO, supra note 345, at 11 and 12. 94 CHAPTER 3: THE MISSING LINK OF GEOGRAPHICAL INDICATIONS IN THE UNITED STATES. MYSTERIES AND RELEVANCE OF THE GENERAL INTERAMERICAN CONVENTION OF 1929 FOR TRADE MARK AND COMMERCIAL PROTECTION In these relationships between developed and developing countries, terminology is uncertain and dangerous. Talk about private enterprise and freedom of contract can only invite the developing world to reject them. We should rather remind them of the wisdom of Henri Bergson, that progress and evolution in economic life, as in all life, can only develop in an atmosphere of freedom…And we must look behind the words to the realities. What the lessdeveloped countries demand is profit-sharing, mixed enterprises or local participation in the administration of enterprises, and approval of investment or contractual arrangements within the framework of their development plans. This demand is not unreasonable.371 Stephen P. Ladas 1. FINDING IN HISTORY THE BONDS NEEDED FOR THE FUTURE OF A JOINT REGULATION ON GIS BETWEEN THE UNITED STATES AND THE EUROPEAN UNION In both the United States and Europe, and probably anywhere, children are born citizens attached to flags and regulations of their sovereign country as much as certain agriculture products are linked to their place of origin. Identity and origin are linked and determine applicable rights both to persons and foodstuff in an increasingly interconnected global society and trade. The traditional view of GIs, as that of patents, focused on the trade-off between competition and innovation incentives.372 However, national legislators keep ruling locally, but 371 Stephen P. Ladas, Comments on the Model Law for Developing Countries on Inventions, 1 STUD. L. & ECON. DEV. 116, 120 (1966). 372 Ted Sichelman & Sean O’Connor, Patents as Promoters of Competition: The Guild Origins of Patent Law in the Venetian Republic, SAN DIEGO L. REV. 1267, 1282 (2012). 95 they are also influenced by international regulations that address global market concerns, developing a complex web of rules which effectiveness and enforcement to protect the rights of individual are not always duly ensured. Due to limitations on the nature of the legal systems based on the national sovereignties, and the lack of development of the international institutionalized system generated last century after the disaster of World War II, there is a real necessity for global regulation and compliance. Therefore, our own identities, legal backgrounds, and the new partnership currently being negotiated must overcome traditional burdens in order to establish regulatory and shared high standards for the future. This chapter dives into the roots and origin of the United States and international regulation for the protection of IPR throughout the contributions of the two main authors of the twentieth century: Edwards S. Rogers and Stephen P. Ladas. Their academic work, together with their direct participation in the drafting on the main acts and international agreements provide detailed information to understand the reasoning behind the inclusion of Chapter V on the “Repression of False Indications of Geographical Origin or Source” within the 1929 General Inter-American Convention For Trade-Mark and Commercial Protection established in Washington DC373 and the absence of development and regulation of GIs under the Lanham Act in 1946.374 What makes the United States distinct to other nations? Why is it so unique? What are the pillars of such a strong identity? Probably the importance and legal protection of its own diversity is a key approach to these queries. Quality of life and quality of rights are intrinsic to the United States and the European Union. And diversity is the cornerstone for understanding the 373 General Inter-American Convention for Trade Mark and Commercial Protection,,supra note 85. 374 Trademark Act of 1946, 15 U.S.C. §§ 1051-1141 [hereinafter Lanham Act]. 96 concept of GIs. As President John F. Kennedy mentioned in his 1963 commencement address at the American University, “if we cannot end our differences, at least we can help make the world safe for diversity.”375 Similar to his statement, the European Union and the United States seem to be directing their attention to their common interests and the means by which existing regulatory and trade divergences may be resolved with positive global consequences. Actually, the quality of being different is highly appreciated in the United States.376 The coexistence of preexisting nationalities, ethnicities, and cultures, for the establishment of its identity and the traditional metaphors of a “crucible” nation, the “melting pot,” and, therefore, diversity, have been fundamental for its modern success. Identity, quality, diversity, uniqueness, and reputation—determined by singular origin— are the fundamentals grounds of GIs. Proper rules on this field of IPR are as feasible as necessary both in the United States and globally. Unjustified protectionist systems are, nowadays, an unacceptable luxury that cannot be maintained and an agreement on the extension of the TRIPS Agreement is imperative for the economic leaders of the old and new world considering the current economic challenges. “Common Sense”377 is one of the pillars of the United States values. And Europe has learned from its historical mistakes fostering a new political, legal, 375 John F. Kennedy, Commencement Address at American University, June 10, 1963, John F. Kennedy Presidential Library and Museum, http://www.jfklibrary.org/Asset-Viewer/BWC7I4C9QUmLG9J6I8oy8w.aspx (last visited Jan. 26, 2014) (“So let us not be blind to our differences, but let us also direct attention to our common interests and the means by which those differences can be resolved. And if we cannot end now our differences, at least we can help make the world safe for diversity. For, in the final analysis, our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's futures. And we are all mortal”.). 376 See Cmty. of Roquefort v. William Faehndrich, Inc., 198 F. Supp. 291, 292 (S.D.N.Y. 1961), aff'd 303 F.2d 494 (2d Cir. 1962) ("A French law adopted on July 26, 1925 prohibits the sale of this type of cheese under the name “Roquefort” unless the product is made within the Community of Roquefort and has received thecertificate of the community."). 377 THOMAS PAINE, COMMON SENSE: ADDRESSED TO THE INHABITANTS OF AMERICA (1792). 97 social and economic framework facilitating common standards of IPR to citizens and consumers is to be developed. Common sense, as common identities, should facilitate the development of a system of adequate GIs protection. Considered a major asset for a variety of goods, GIs are not only a market tool for granting the highest quality to singular products and protecting consumer interests but also a legal and economic tool for the development of rural areas and the preservation of cultural heritage.378 Over the years, certain European countries took the lead in identifying and protecting their GIs, but today GI protection constitutes a global phenomenon.379 Protecting and preserving the benefits related to traditional cultures, geographical diversity, and production methods is a priority for development. GIs offer a legal possibility not just to comply with complex international regulations addressed to product quality and market access, but also for original products to be internationally distinguished.380 Since GIs requires intense and costly social and legal efforts that small rural communities can rarely afford, they justify an enhanced protection to guarantee quality to consumers as well as a fair price and fidelity for farmers.381 Those are the 378 See ELIZABETH BARHAM ET AL., AMERICAN ORIGIN PRODUCTS (AOPS): PROTECTING A LEGACY, 3 (2010). 379 In accordance with the "E-Bacchus" database developed by the European Commission, there exist a total of 2,885 GIs referred to wine registered in the European Union: 1,293 European Union wines with protected designation of origin (PDO), 459 European Union wines with protected geographical indication, 435 third countries wines with a geographical indication, 696 third countries wines with a name of origin, and two third countries wines with protected designation of origin. 380 DOMINIQUE BARJOLLE & EMILIE VANDECANDELAERE, IDENTIFICATION OF ORIGIN-LINKED PRODUCTS AND THEIR POTENTIAL FOR DEVELOPMENT: A METHODOLOGY FOR PARTICIPATORY INVENTORIES (2012), http://www.fao.org/fileadmin/templates/olq/files/MethodologyEN_01.pdf (last visited Jul 28, 2016) (providing, as part of FAO’s Quality & Origin Programme, a methodological participatory approach to identifying products of origin-linked quality to be used as levers for sustainable rural development. The study adopts two analytical tools or questionnaires to define a strategy based on the value of production and can even be used online (1) assessing the link between a product and its origin, (2) focusing on strengths and weaknesses in terms of economic value and/or preservation of a heritage.). 381 Edward S. Rogers, Excerpts from the Lanham Act and the Social Function of Trade-Marks, 62 TRADEMARK REP. 255, 258 (1972) (referring to President Jefferson’s view on trade-marks as symbolizing reputation and contributing to fidelity). 98 main arguments for the European Union to actively promote it both in its trade relations and developing policy.382 Therefore, even although all nations have a wide range of local products that correspond to the concept of a GI, only a few are already known as such or duly protected. Unfortunately, legal and regulatory limitations remain, which make the protection system ineffective and hinder its economic and social potential. As indicated in the previous chapter, there are two basic types of legal regimes for the protection of GIs. Some countries, notably members of the European Union, define and treat GIs as a distinct type of IPR, which is also reflected in the TRIPS Agreement. Other countries, such as the United States, consider GIs a subcategory of trademarks. Furthermore, The European Union is attempting to incorporate other features of its system of GI protection into the WTO system, often finding opposition from countries that do not consider this a tool for development and effective commercial trade. However, certain countries consider better protection of GIs useful to increasing income, in particular in rural areas dependent on agricultural products. There exists a belief in Europe that GIs encourage quality production, fight the constant migration of population, and can promote the development of tourism, among many other benefits. In fact, due to the economic, cultural, and social consequences, GIs grant protection to a community and not to individual right holders. National and international political strategies and trade agreements are needed to establish the legal frameworks that allow local producers and the market to obtain the required recognition of uniqueness and due value from their products.383 382 Communication from the Commission to the Council, The European Parliament, the European Economic and Social Committee and the Committee of the Region, Global Europe: Competing In The World. A Contribution to the EU´s Growth and Jobs Strategy, at 5, COM(2006) 567 (Oct. 4, 2005) [hereinafter Global Europe]. 383 See UNITED STATES DEPARTMENT OF AGRICULTURE, RURAL AMERICA AT A GLANCE 2015 EDITION (2016), http://www.ers.usda.gov/webdocs/publications/eib145/55581_eib145.pdf, last visited Nov.14, 2016). Population 99 In a globalized economy, the increased ruling power of the market may generate a race to the bottom based on quantitative and price models. Commodities such as banana, cocoa, coffee, rice, corn, or sugar, have developed economic models in which the industry receive most of the profit out of the business while the small farmers remain in a weak and arduous situation. The strong position of developed industries such as the one of chocolate or coffee, together with the main foodstuffs distribution network, grants them full control of market access and purchase conditions. It is easy to wonder about the gap between exporters and importers, those who grow and harvest the pods and those marketing and selling the final product to consumers.384 Perhaps the best possible system of fair trade should pursue that the economic added value remains in the territory of production being duly shared by all those participating and making it sustainable. Taxation traditionally facilitates a better distribution of wealth, including through the consumption of products highly damaging to health, such as tobacco and alcohol. In countries and regions where the establishment of duties and tax collection are not easy established, GIs can be placed among other methods to foster equality and development, since consumers are ready to pay more for GIs products and contribute directly if a larger part of the price is directly granted to local farmers. Now, imagine yourself tasting something really special, that gives you great pleasure and also brings your memories back to a very special location. Try to go beyond emotional decline continues in rural areas and particularly child poverty, including deep poverty, increase the most during and after the recession reaching 25.3 percent in 2014, and it is higher among minority racial and ethnic groups. 384 Detailed information can be obtained from the International Cocoa Organization, located in London, as a good example on the referred debate on trade of commodities. See DOMINIQUE BARJOLLE & EMILIE VANDECANDELAERE, IDENTIFICATION OF ORIGIN-LINKED PRODUCTS AND THEIR POTENTIAL FOR DEVELOPMENT: A METHODOLOGY FOR PARTICIPATORY INVENTORIES 56 (2012), http://www.fao.org/fileadmin/templates/olq/files/MethodologyEN_01.pdf (last visited Jul 28, 2016). 100 perceptions and think of the product qualities, particular features, and origin.385 What was it? Something unique? Or just something special? If it was special but not unique it could be protected by a trademark and the product easily substituted. However, something unique, linked to a particular location or traditions, and duly certified, may have an extraordinary value, both in perception but also economically.386 GIs are often categorized as trademarks, strongly linked to European interests, and considered a protectionist system to avoid competition or at least to protect certain wines, spirits, and foodstuffs. Opposed economic interests and incorrect regulatory approaches have led to a situation that can be addressed under TTIP in order to establish a bilateral agreement that will facilitate a global system for the protection and development of GIs. It is much more than just about toasting champagne with our beloved ones in front of the Eiffel Tower, enjoying a traditional Darjeeling tea at four in London or Delhi, tasting Parmigiano-Reggiano with a good Chianti in Piazza Nabona in Rome, or just getting lost in the historical and gastronomical roots of Mediterranean Europe. Since the mid-18th century, the derivation of any kind of property from nature constitutes a moot question.387 Even today, a proposal exists to examine whether the Pan-American 385 M. DE LA GUARDIA & A. GONZÁLVEZ, 60 FOOD PROTECTED DESIGNATION OF ORIGIN. METHODOLOGIES AND APPLICATIONS. COMPREHENSIVE ANALYTICAL CHEMISTRY (2013). Complete study providing analytical and chemometric methodsfor food protected designation authentication, monitor and evaluation. Provides specific techniques and analytical methods in Part III including wine, alcoholic beverages, juices and non-alcoholic beverages, fruits and vetetables, cheeses, honey, vegable oils, coffe, wheat, corn, rice, fishery products, and sea salt. 386 See GARY PAUL NABHAN, ASHLEY ROOD & DEBORAH MADISON, RENEWING AMERICA’S FOOD TRADITIONS: SAVING AND SAVORING THE CONTINENT’S MOST ENDANGERED FOODS (2008) (“Illustrated dramatic call to recognize, celebrate, and conserve the great diversity of foods that gives North America its distinctive culinary identity that reflects our multicultural heritage.”). 387 THOMAS JEFFERSON & HENRY AUGUSTINE WASHINGTON, THE WRITINGS OF THOMAS JEFFERSON: CORRESPONDENCE, 180 (1859). (“But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors.”). 101 Convention might offer any insight into the process and requirements of hemispheric harmonization in light of NAFTA.388 And, in any case, the basic rules of the United States legal system have reconciled the right of original users, the rights of the new comers to develop new business, and the avoidance of deception or misleading consumers: Two and perhaps three distinct rights have to be reconciled…the right of the original user of the name to the business that he has built up under it; the right of the new comer honestly to go to the place and establish a business there and to state the fact of its location, and the right of the public to purchase an article desired without deception. The late comer will therefore be required so to use the name as not to injure the original user or mislead the public.389 Just after the conflict where over 80 millions human beings died, World War II, authors from both shores of the Atlantic suggested that nations of the Eastern and Western Hemisphere would do well to cooperate and work together and even suggested that the United States adhere to the Paris Union and thereby reject the idea of any isolationism, even in treaties affecting industrial property.390 Suggestions to reconcile Europe and the United States on issues, such as IPR, derives from their shared history—the contributions of Europe to the roots of the modern United States, and the United States efforts to rebuild Europe following World War II. As a matter of fact, in the common history of IPR and GIs, the intention of the United States was to actively work together and not just foster inter-American agreements on the matter.391 Since 388 Drescher, supra note 282, at 327. 389 EDWARD SIDNEY ROGERS, GOOD WILL, TRADE-MARKS AND UNFAIR TRADING, 147 (1914). 390 Cyril Drew Pearson, Proposal That Non-Member Countries of the Western Hemisphere Adhere to the International Union for the Protection of Industrial Property Signed at Paris, March 20, 1883 as Revised at London, June 2, 1934, 44 TRADEMARK REP. 465, 473 (1954). 391 Edward S. Rogers, The Expensive Futility of the United States Trade-Mark Statute, MICH. L. REV. 660 (1914). 102 1897, twenty-two congresses were held to formulate recommendations for revision of existing rules, but not until Washington (1956) did these meetings take place in America.392 2. CHALLENGES OF THE TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP In February 2013, leaders from the United States and the European Union announced the launch of negotiations to take their economic relationship to a higher level.393 This comprehensive trade and investment agreement intends to be the biggest bilateral trade deal ever negotiated including the opportunity not only to expand trade and investment across the Atlantic, but also to contribute to the development of global rules to strengthen the multilateral trading system.394 In fact, the benefits for the European Union and the United States are not at the expense of the rest of the world; on the contrary, this agreement should have a positive impact on worldwide trade and incomes, increasing global income by almost €100 billion.395 Considering the partners to this agreement, together with the existing web of bilateral and multilateral trade agreements,396 a key component is the extension to regulatory obstacles of trade and the achievement of a substantial reduction of cost for traders and investors.397 392 Cyril Drew Pearson, The Significance to the Washington (1956) A.I.P.P.I. Congress to Western Hemisphere Countries, 47 TRADEMARK REP. 1188, 1190 (1957). 393 Joint Statement from United States President Barack Obama, European Council President Herman Van Rompuy and European Commission President José Manuel Barroso, European Commission, European Commission Press Releases Database, February 13, 2013, available at http://europa.eu/rapid/press-release_MEMO-13-94_en.htm (last visited April 18, 2014). 394 Id. 395 See CENTRE FOR ECONOMIC POLICY RESEARCH ET AL., supra note 28. 396 The United States has free trade agreements in force with twenty countries: Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Jordan, Mexico, Morocco, Nicaragua, Oman, Panama, Peru, Singapore, and South Korea. The European Union has already in place trade agreements with nearly fifty partners and many others are currently being negotiated. Up to date information can be obtained from the web sites of the United States Trade Representative at http://www.ustr.gov/trade-agreements and 109 Ladas argued against the limitations of the trademark system in the United States429 and promoted necessary changes in domestic law to join the Madrid Agreement. His argument was that the greatest export country in the world should participate in any organization or arrangement that would enable trademark registrations to be obtained expeditiously and at reduced expenses. In fact, he specifically suggested that American trademark owners should be placed in a position to derive the same benefits as German or French trademark owners through the Madrid Agreement.430 Both Rogers and Ladas always fought for uniforms solutions, both in the United States and abroad; The only practical and effective method of adopting uniform solutions for these problems, or of establishing harmony between the legislations of the various countries on these questions, is the adoption of an Inter-American Trade-Mark Convention with suitable stipulations.431 Excellent ideas irrigated the roots of the IPR system in the United States, as those of the unwary purchaser regarding trademark infringement. These concept fundamentals could be nowadays applied to the unwary legislator regarding GIs.432 Furthermore, Roger provides a great analysis on how countries that forbid unfair practices by domestic legislation relieve their own nationals of unnecessary and inhibiting burdens, placing them at a disadvantage in international 429 For a contextual situation of trademarks in the beginning of the 20th Century, see BERTHOLD SINGER, TRADE MARK LAWS OF THE WORLD, AND UNFAIR TRADE (1913). 430 Stephen P. Ladas, Additional Memorandum, 56 TRADEMARK REP. 361, 361 (1966). 431 Edward S. Rogers & Stephen P. Ladas, Proposal for Uniform Trade-Mark Laws, 40 TRADEMARK REP. 8, 8 (1950). 432 Edward S. Rogers, The Unwary Purchaser. A Study in the Psychology of Trade Mark Infringement, 8 MICH. L. REV. 241, 241 (1909). 110 trade.433 Actual and complete descriptions of misleading and unfair practices that were referred to trademarks are fully applicable to sui generis GI regulatory systems. …we suggest that an effort be made to include in the domestic law of all countries, appropriate legislation to forbid the following practices: (a) any and all representations, express or implied and however such representations may be made, that the goods of one manufacturer or trader are the goods of another, such as by the use or colorable imitation of a trade mark or other distinguishing name or symbol, the colorable imitation of label or container or of any means of identification; (b) acts inducing breach of contract; (c) trade libel; (d) commercial bribery; (e) enticing employees; (f) betrayal of confidential information; (g) disparagement of establishment or goods; (h) false use of testimonials, warrants, appointments and false statements of membership in associations; (i) intimidation of customers; (j) attempts to cut off supplies or hamper distribution of goods; (k) use of false indications of geographical origin; (1) Use of false descriptions of merchandise, and (m) in general all acts of a trader designed to damage competitors as a means of seeking a business advantage instead of relying for that advantage on the excellence of his own service; all acts characterized by bad faith, deception, fraud or oppression and all acts contrary to honorable commercial usage.434 Ladas’ arguments for the international protection of well-known trademarks provide an interesting analysis of the attributive system, where ownership of the trademark is acquired by 433 Edward S. Rogers, Protection of Industrial Property, 27 MICH. L. REV. 491, 498 (1929). 434 Id. at 497–8. 111 registration and not by prior use.435 In fact, he refers to Articles 7 and 8 of the General Inter- American Convention for Trade-Mark and Commercial Protection and the right to oppose the application or cancel the registration of an interfering mark in the other contracting countries by proving that the applicants or registrant “had knowledge” of the prior use of registration of the complainant in the latter’s home country, specifying that no prior use of the mark in question by importation of the goods in the defendant’s country is needed since knowledge of the prior use by the defendant is sufficient.436 As Ladas also notes, developing countries—due to their lack of traditional techniques and skills and inability to invest in research—depend even more heavily on foreign know-how and IPR.437 According to Rogers, geographical names are not trademarks because their very nature provides exclusive rights that cannot, and ought not, to be confused.438 He refers, for example, to the origin of wine marked on the bottles and the famous cheese of Etruscan Luna marked with the picture of the city.439 Considering the strict IPR feature of private and exclusive rights, together with the historical trade traditions in the United States and the complexities incorporating GIs in the common law system, protection against infringement and unfair competition seem to be the proper ground for finding common solutions. Rogers provides excellent analysis to support the protection of GIs,440 backed by Ladas who provides the main 435 Stephen P. Ladas, International Protection of Well-Known Trade-Marks, 41 TRADEMARK REP. 661 (1951). 436 Id. at 663. 437 Id. at 160. 438 ROGERS, supra note 372, at 146. 439 Rogers, supra note 204, at 241. 440 Edward S. Rogers, New Concepts of Unfair Competition under the Lanham Act, 54 TRADEMARK REP. 752 (1964); Rogers, supra note 75. See also Edward S. Rogers, Comments on the Modern Law of Unfair Trade, 3 U. ILL. L. REV. 551 (1908); Rogers, supra note 407. Edward S. Rogers, Unfair Competition, 17 MICH L. REV. 490 (1919); Edward S. Rogers, Unfair Competition, 35 TRADEMARK REP. 126 (1945). 112 principles that inspire not just the Lanham Act but also the main international conventions on IPR.441 Both of them agree that infringement (in the field of trademarks) occurs whenever two marks resemble each other sufficiently enough to make it probable that the ordinary consumer will be deceived, exercising no more care than they usually do.442 After cases such as “Chero- Cola” and the definition of the problem in the case Pillsbury v. Pillsbury-Washburn Flour Mills Company, the existing conceptual model was developed upon previous ideas grounded on the unwary purchaser.443 Therefore, trademarks and GIs are inspired by the same principles, as well as the grounds of distinctiveness and due legal protection, shared by the United States. There is no field that lends itself better to the comparative approach than the field of unfair competition…even the most provincial lawyer can hardly deny that in trying to find out what unfair competition is, the experience abroad should be of invaluable aid.444 4. EXISTING REGULATION OF GEOGRAPHICAL INDICATIONS UNDER A TRADEMARK SYSTEM IN THE UNITED STATES The evolution of federal registration for geographic indicators in the United States has been fundamentally related to the protection of trademarks, generating certain confusion on legal status of GIs and inconsistencies regarding both the text and the legislative history of registration provisions.445 Although this section does not provide an exhaustive analysis of the historical 441 Stephen P. Ladas, Unfair Competition in Trademarks Abroad, 15 PAT. TRADEMARK & COPY. J. RES. ED. 140 (1971). 442 Edward S. Rogers, An Account of Some Psychological Experiments on the Subject of Trade-Mark Infringement, MICH. L. REV. 75 (1919). 443 Rogers, supra note 411. 444 John Wolff, American Decisions in Trade-Mark Cases as Influenced by Foreign Law, 31 TRADEMARK REP. 102, 105 (1941). 445 Mary LaFrance, Innovations Palpitations: The Confusing Status of Geographically Misdescriptive Trademarks, 12 J. INTELL. PROP. L. 125, 126 (2004). 113 development of trademark protection, there are five significant eras that are essential to understand the legal framework in the United States:446 (i) the first federal trademark statute (1905-1946); (ii) the enactment of the Lanham Act (1947-1982); (iii) the period following the decision of In re Nantucket, ascertaining whether a goods-place association existed;447 (iv) the decade following the adoption of the NAFTA Amendments when Congress uncoupled the category of “primarily geographically deceptively misdescriptive” marks—no longer salvaged by proof of secondary meaning and therefore barred to registration—from “primarily geographically descriptive” ones;448 and (v) the period after the 2003 decisions in In re California Innovations, Inc.449 and In re Les Halles de Paris, J.V.450 This last period exemplifies three broad trends in the legal treatment of geographic marks in the United States: increasing liberalization of registration, consumer perception (as manifested by the “goods-place association” and “materiality” tests), and a declining role for secondary meaning, as the choice for whether or not to protect geographic trademarks.451 4.1. Historical Approach to the Lanham Act Congressional reports and hearings on this issue suggest that legislators, as well as the vast majority of businesses in the United States, agreed on the desirability of the Lanham Act to furnish the statutory basis for the reciprocal advantages offered by the international 446 Robert Brauneis & Roger E. Schechter, Geographic Trademarks and the Protection of Competitor Communication, 96 TRADEMARK REP. 1, 5 (2006). 447 In re Nantucket, 677 F.2d 95 (C.C.P.A. 1982). 448 Pub. L. No. 103-182, 107 Stat. 2057 § 333(a)(2) (1993), codified at 15 U.S.C. §§ 2(e)(3), 2(f). 449 In re California Innovations, Inc. 329 F.3d 1334 (Fed. Cir. 2003). 450 In re Les Halles de Paris, 334 F.3d 1371 (Fed. Cir. 2003). 451 Brauneis & Schechter, supra note 425, at 20. 114 conventions.452 The development of this coherent system to protect IPR in the United States—a new market that is continuously expanding and competing with old European models—requires a proper understanding of convention and practices. As Rogers quoted United States Senator Lott, “honest competitions relies only on the intrinsic merits of the article brought into the market, and does not require a resort to a false or fraudulent device or token.”453 The aim was to fight unfair trade and therefore develop means for protection: In short that no one has any right to sell his goods as the goods of another. This principle is perfectly general and without exception. The means by which the end is accomplished do not matter, whether in the particular case it be by the use of a personal, descriptive, or geographical name, imitated labels, color of label, appearance of package, shape of package, form or peculiarities of the goods themselves, misleading advertising, oral false statements, or silent passing off.454 The initial incentive for the Lanham Act was brought to the attention of Congress over twenty years before it was enacted in 1946. It is the result of implementing, by domestic legislation, the provisions of the international conventions, particularly the Inter-American Convention of 1929.455 The first precedent of regulation on these issues derived from Section 3 of the Act of March 19, 1920.456 In order to implement Article VIII of the Buenos Aires Convention, the wording before being superseded by the later Section 43(a) of the Lanham Act, provided a limited application as to deprive it of practical use as the required foundation for a 452 Hanna Katz, An International Aspect of the Pending Trade-Mark Bill, 35 TRADEMARK REP. 146, 149 (1945). 453 Rogers, supra note 419, at 551. 454 Id. at 556–57. 455 Walter J. Derenberg, Federal Unfair Competition Law at the End of the First Decade of the Lanham Act: Prologue or Epilogue, 32 N.Y.U. L. REV. 1029, 1029 (1957). 456 Act of Mar. 19, 1920, ch.104, 41 Stat. 533 (1920) [hereinafter 1920 Act], entitled “An Act to Give Effect to Certain Provissions of the Convention for the Protection of Trade-Marks and Commercial Names Made and Signed in the City of Buenos Aires, in the Argentine Republic, August 20, 1910, and for Other Purporses.” 115 new private remedy.457 Considered the first milestone towards a federal law of unfair competition, the Lanham Act established the first criteria regarding GIs. Specifically, the Act referred exclusively to articles of merchandise with false designation of origin that required that the use of the false designation of origin occurred “willfully and with intent to deceive:” Any person who shall willfully and with intent to deceive, affix, apply, or annex, or use in connection with any article or articles of merchandise, or any container or containers of the same, a false designation of origin, including words or other symbols, tending to falsely identify the origin of the merchandise, and shall then cause such merchandise to enter into interstate or foreign commerce, and any person who shall knowingly cause or procure the same to be transported in interstate or foreign commerce or commerce with Indians tribes, or shall knowingly deliver the same to any carrier to be so transported, shall be liable to an action at law for damages and to an action in equity for an injunction, at the suit of any person, firm, or corporation doing business in the locality falsely indicated as that of origin, or in the region in which said locality is situated, or at the suit of any association of such persons, firms, or corporations.458 The inadequacy of this regulation soon became apparent just a few months after its enactment. Proposals to revise the trademark law appeared at the St. Louis meeting of the American Bar Association and the bill introduced by Senator Erns459 was subsequently followed by the Vestal Bill460 and, ultimately, by the Lanham Bill.461 All of these bills required that “any association” of persons were provided with a civil suit in cases of false descriptions and 457 Derenberg, supra note 434, at 1034. 458 1920 Act, Ch. 104, 41 Stat. 534 (repealed 1946). 459 68th Cong. 2d Sess., §30 (1925); identical with H.R. 8637, 68th Cong., 2d Sess., §30 (1925). Joint Hearings before the Committee on Patents, 68th Cong., 2d Sess. 49-51, 117 (1925). 460 H.R. 6248, 69th Cong. 1st Sess., §30 (1926). Cf. Hearing before the House Committee on Patents, 69th Cong., 1st Sess. 10 (1926). 461 H.R. 9041, 75th Cong. 1st Sess., §43 (1938), Hearing befor the Subcommittee on Trade-Marks of the House Committee on Patents, 75th Cong., 3d Sess. 7 (1938). 116 representations.462 However, surprisingly, this remedy is not found in the Lanham Act, as passed.463 Rogers refers to a neurosis of certain senators and of the Department of Justice according to which the antitrust laws and competition take precedence over IPR and everything else, even suggesting that their attitude reflected a complete ignorance of trademarks, their history, and their social values.464 Rogers supplies reflections on property rights and monopolies as well as the social value of trademarks and brands, much of which may also be applied to GIs.465 Rogers provides concepts and clear statements that address the fundamentals of industrial property rights as “nothing but reputation symbolized,”466 while “distinguishability among people is what permits civilized society to exist.”467 Rogers also notes that “responsibility is as important for trade morality as for personal morality-and responsibility here, too, depends on distinguishability.”468 The origin for trademarks and GIs can even be identified in Rogers ideas regarding their importance for trade: The marking of goods in the Middle Ages was neither optional nor a mere right—it was an obligation. It was a part of the artisan's duty to the community to mark what he made with his name or device (and if a device, it was required to be entered in a register), so that responsibility for them could be fixed. The instances mentioned are only a few—the requirement was well-nigh universal and the more efficient and well developed a trade was, the more rigid was the application of the rule. And it has often been said by writers on the subject that the standing of any trade in the community can be gauged by the desire to identify the origin of the things it sells-by the use of identifying marks. 462 Derenberg, supra note 434, at 1036. 463 Id. at 1036. 464 Rogers, supra note 364, at 259. 465 Edward S. Rogers, The Social Value of Trade-Marks and Brands, 37 TRADEMARK REP. 249 (1947). 466 Id. at 249. 467 Id. at 250. 468 Id. at 250. 117 A social institution so well established and so long in effect must have had a policy behind it and that policy, in the case of the marks on goods, was to require the person who produced them to accept full responsibility, so that if anything went wrong they could be traced back to him. An institution so long accepted in so many countries and one which so many people believed in must have had something in it. I suggest that it is socially desirable to have trade-marks and brands on goods so that individual responsibility for them can be fixed and that producers should be encouraged to use trade-marks and brands; and that it makes good economic sense to do this.469 Derenberg provides one of the keys to understanding the missing link in the history of GIs in the United States.470 Questioning the nature of Section 44 of the Lanham Act and the Ninth Circuit doctrine of the Stauffer case,471 Derenberg inquires whether the indirect protection given to United States citizens under the international convention provisions of the Act intended to create, and had in fact established, a national substantive code of unfair competition.472 Going back to the first hearing of the Lanham Bill and other contributions, Derenberg traced back to statements by Rogers and Ladas473 to confirm their international approach to the establishment of a general national unfair competition law by adding Section 44(i). However, the Stauffer doctrine limited that possibility since the rationale of the court implied that the Lanham Act creates a federal cause of action for unfair competition even though unrelated to a registered trademark or trade name giving district courts jurisdiction without regard to diversity of citizenship or amount in controversy.474 The generally accepted view is, as sustained by Bunn475 469 Id. at 252. 470 Derenberg, supra note 434. 471 Stauffer v. Exley, 184 F.2d 962 (9th Cir. 1950). 472 Derenberg, supra note 434, at 1055. 473 Id. at 1056. 474 Martin S. Bogarad, Present Status–Applicability of Federal Law to Cases Involving Unfair Competition, 16 OHIO ST. L.J. 614, 616 (1955). 118 and confirmed by the Barcardi476 and Prunier,477 that Congress intended to enact a federal law of unfair competition it would have done so directly and not by reference to the protection promised to foreigners under treaties.478 In relation with unfair competition and the protection of geographic names the United States Congress only made one change to the Lanham Act to implement the TRIPS agreement—by adding to Section 2(a) a clause specifically prohibiting the use of GIs that identify a place other the origin of the goods when referring to wines and spirits, and including a grandfather clause that allowed such uses if commenced before January 1, 1996.479 Regarding indications of geographical origin or source, Rogers established the importance of GIs and discussed the need to indicate the origin of goods in his article on the Lanham Act and the social function of trademarks: The social need of identifying people is the same as the need of identifying the things they buy. If we suppose that no merchandise could be distinguished from any other—that if were forbidden to mark any goods or put any name, label, or other identification on them—a consumer would fare badly in such a world. A producer would too. There could be no pride of workmanship, no credit for good quality, nor responsibility for bad. There would be competition, to be sure, but it would be competition to see who could make the worst goods, not the best; and he would win whose product was the cheapest, poorest, and most dishonest. It could not be otherwise. If there were no way to tell the good from the bad, why bother to sell anything but the bad—and the worse, the better? The present-day competitive desire to do better would simply be reversed, and everyone would devote his merchandising and 475 Charles Bunn, The National Law of Unfair Competition, 62 HARV. L. REV. 987 (1949). 476 Bacardi Corp. v. Domenech, 311 U.S. 150 (1940). 477 Maison Prunier v. Prunier’s Restaurant & Café, Inc., 159 Misc. 551, 288 N.Y. Supp. 529 (Sup. Ct. 1936). 478 Derenberg, supra note 434, at 1064. 479 Uruguay Round Agreements Act to Implement GATT into United States Law, Pub. L. No. 103-465, 108 Stat. 4809, Title V. 15 U.S.C. § 1052(a) (1994). 125 without previous references,512 the Inter-American Convention has not received the welldeserved credit among scholars and practitioners and is often incomprehensively neglected.513 Nowadays, as proposed by Christine Farley, it is astonishing that the chapter on the “Repression of False indications of Geographical Origin” (Article 23 to 28) is not considered a fundamental reference both to the United States and the European Union since it is a binding treaty in forced containing an exhaustive regulation on GIs.514 Farley’s research on the Pan-American Conference515 helps to understand the drafting and inclusion of GI protection under the Pan-American Convention. Although none of the preceding conventions included this concept, certain facts justify its inclusion. The participation of the IPR fathers in the United States,516 Rogers and Ladas, was fundamental and particularly relevant.517 Ladas even drafted the documents that served as the basis for debates at the conference.518 These proposals included the regulation on false indications of origin deceiving the public,519 and embodied other proposals such as article 10bis of the Paris Convention. Following the common law tradition, and rooted in unfair competition, the United States 512 Inter-American Convention, supra note 373. 513 Christine Haight Farley, The Protection of Geographical Indications in the Inter-American Convention on Trademarks, 6 WIPO J. 68, 70 (2014). See also Edward S. Rogers, The Inter-American Convention, XXVI BULL. U. S. TRADE-MARK ASSOC. 169, 175 (1931). (“Chapter V, dealing with the repression of false indications of geographical origin or source, is considerably more elaborate than any existing Convention and codifies the modern law on the subject.”). 514 Farley, supra note 513, at 71. 515 Id. 516 Id. at 73 517 Id. 518 Rogers, supra note 412. Excellent description of unfair trade and false statements of the origin of the goods. 519 Ladas, supra note 478, at 821. 126 proposal was the first international codified regulation on GIs.520 Furthermore, authors like Ladas, Rogers, and Farley agree that the rights contained under the Pan-American Convention go beyond the minimum protections mandated by the Paris Convention. In fact, considering the background of ongoing discussions under TTIP and the revision of the TRIPS Agreement, a good example and guiding reference could be the simple and general application of the Pan- American Convention without distinguishing wines and spirits from other products and providing such a level of protection.521 Article 23 of the Pan-American Convention grants protection closer to Article 23 than Article 22 of the TRIPS Agreement, since falsehood does not need to be believable or material to be actionable.522 Its broad scope grants a higher level of protection for all GIs stating that “every indication of geographical origin or source which does not actually correspond to the place in which the article, product or merchandise was fabricated, manufactured, produced or harvested, shall be considered fraudulent and illegal, and therefore prohibited.”523 Interestingly, Chapter IV on “Repression of Unfair Competition” (Articles 20-22) details GI protection explicitly dealing and is far more direct that the current languages of the Paris Convention. By the time of its enactment it even went far beyond the existing statutory law of the Pan-American signatories.524 Thus, the content of Article 21 was extraordinarily innovative, stating: 520 Farley, supra note 513, at 73 & 78. 521 Id. at 75. 522 Id. at 74. 523 Inter-American Convention, supra note 370, at Art. 23. 524 Farley, supra note 513, at 76. 127 The following are declared to be acts of unfair competition and unless otherwise effectively dealt with under the domestic laws of the Contracting States shall be repressed under the provisions of this Convention: (a) Acts calculated directly or indirectly to represent that the goods or business of a manufacturer, industrialist, merchant or agriculturist are the goods or business of another manufacturer, industrialist, merchant or agriculturist of any of the other Contracting States, whether such representation be made by the appropriation or simulation of trade marks, symbols, distinctive names, the imitation of labels, wrappers, containers, commercial names, or other means of identification; (b) The use of false descriptions of goods, by words, symbols or other means tending to deceive the public in the country where the acts occur, with respect to the nature, quality, or utility of the goods; (c) The use of false indications of geographical origin or source of goods, by words, symbols, or other means which tend in that respect to deceive the public in the country in which these acts occur; (d) To sell, or offer for sale to the public an article, product or merchandise of such form or appearance that even though it does not bear directly or indirectly an indication of origin or source, gives or produces, either by pictures, ornaments, or language employed in the text, the impression of being a product, article or commodity originating, manufactured or produced in one of the other Contracting States; (e) Any other act or deed contrary to good faith in industrial, commercial or agricultural matters which, because of its nature or purpose, may be considered analogous or similar to those above mentioned.525 Article 24 regulates the place of origin for the purposes of the Convention and ensures even indirect protection in cases of misleading consumers provided that the geographic name is the fundamental element of the designation: 525 Inter-American Convention, supra note 370, at Chapter IV on “Repression of Unfair Competition” (Articles 20 to 22). 128 For the purposes of this Convention the place of geographical origin or source shall be considered as indicated when the geographical name of a definite locality, region, country or nation, either expressly and directly, or indirectly, appears on any trade mark, label, cover, packing or wrapping, of any article, product or merchandise, directly or indirectly thereon, provided that said geographical name serves as a basis for or is the dominant element of the sentences, words or expressions used.526 Other articles address the right to use geographical names while prohibiting individual appropriation (Article 25); the exactitude of the place of origin indicated in the geographical designation (Article 26); and even an exception to generic names due “to constant, general and reputable use in commerce” (Article 27) while providing for special and other existing remedies repress false indications of geographical origin (Article 28). The Convention remains in effect with its ten original members,527 although twenty years after its ratification, disappointment remained.528 Rogers and Ladas suggested reasons of nonratification—particularly by such countries as Argentina, Brazil, Chile, and Mexico, among others—claiming that conventions should include a preliminary submission of a draft to the trade organizations and the need to address relevant problems that were omitted.529 Later, on September 29, 1945, the United States denounced the Protocol for the Inter- American Registration of Trade-Marks establishing the Inter-American Bureau at Havana, but its denunciation did not affect the Pan-American Convention.530 Even today, almost a century after it was negotiated and approved, a review of provisions under the Pan-American Convention and 526 Inter-American Convention, supra note 370, at Art. 24. 527 The United States, Colombia, Cuba, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay and Peru. 528 Rogers and Ladas, supra note 431 at 8. 529 Id. at 14. 530 The Protocol ceased to be in force on November 18, 1946. The Inter-American Trade Mark Bureau, created by the Protocol, was terminated on November 2, 1949. Organization of American States, General Secretariat, Treaty Series n.15, http://www.oas.org/juridico/english/sigs/b-8.html (last visited Jun. 5, 2016). 129 the TRIPS Agreement ascertain their compatibility regarding certain minimum standards. Among those standards includes national treatment, protectable subject matter, and enforceability of registration of protected trademarks, which are still valid clauses today.531 It is particularly important to refer to the self-executing character of the Pan-American Convention as duly described by Ladas532 and the United States Supreme Court, since following its ratification it was deemed federal law:533 “[This treaty on ratification became a part of our law. No special legislation in the United States was necessary to make it effective.”534 Rogers had a strong conviction on the self-executing character of treaties on industrial property to the extent that their stipulations contained legal rules that did not require implementation by national law, both from a legal and a practical point of view.535 So did Ladas, who provided a complete analysis on the need of the self-executing nature of international agreements, particularly in the matter of IPR.536 In fact, in 1934, Ladas and Rogers submitted a Memorandum on the self-executing character of provisions of the Pan-American Convention to the Commissioner of Patents, which was published in the Bulletin of the United States Trademark Association in January 1935.537 The supremacy and self-executing of international agreements is not questioned by the U.S. representatives in international conferences on IPR. 531 Drescher, supra note 282, at 327. 532 Stephen P. Ladas, The Self-Executing Character of International Conventions on Industrial Property and Their Effects on Substantive Rights, 31 TRADEMARK REP. 5 (1941). 533 Ladas, supra note 490, at 198. 534 Bacardi Corp. v. Domenech, 311 U. S. 150, 161 (1940). 535 Ladas, supra note 490 at 199. 536 Ladas, supra note 532. Waggoner, supra note 237 at 586. 537 Ladas, supra note 532, at 5. 130 …should the United States adhere to future treaties or should the existing Conventions be revised as to incorporate stipulations which are not in agreement with the Lanham Act, the conclusion must be, under the same principle alluded to above, that the Convention must prevail so far as its provisions are such that they contain a rule of law enforceable by the Courts. Any doubt as to this may now be deemed to have been set at rest by the decision of the Supreme Court in Bacardi v. Domenech in 1940.538 Consequently, the protection of industrial property in the United States is based upon national legislation as supplemented by international agreements.539 In any case, modernization has sought to reconcile the two essential objects of international regulations on the matter—the need of stability and the need of change—and always in an attempt to reconcile and satisfy conflicting claims, demands, and interests of a world that has been the subject of dynamic development.540 6. GIS IN THE UNITED STATES LEGAL SYSTEM Confusions and inconsistencies over terminology do not mean that GIs do not exist in the United States, but they have often been regarded merely as brands, particularly certification marks.541 In fact, although it does not regulate foodstuffs or product GIs under a sui generis system, geographical names are protected under trademark and unfair competition law. With the intent to learn from existing models and develop proposals that may be valid for third countries development of agricultural products, this section analyses the legal protection for GIs in the United States. There is a growing awareness of the implications of globalized food 538 Ladas, Frederico, & Derenberg, supra note 490 at 289. 539 Halliday, supra note 465 at 661. 540 Ladas, supra note 280 at 706. 541 BARHAM ET AL., supra note 361, at 7. 131 system, its relevant transit from the farm to the table, referring crops, farmers, food processing, distribution and, fundamentally, consumers, which contributes to the discussion of GI protection in the United States.542 American agriculture is inspired by the self-help principle with the basic understanding that producers with particular interests should organize on their own first before taking their needs to a public body.543 Foodstuffs and agricultural products are mainly protected as certified and collective trademarks administered by the USPTO, with certain exceptions under Marketing Orders administered by the Agricultural Marketing Service. Other institutionalized protection restricts the use of specific names for products such as Vidalia Onions or other regionallyspecific products such as the Florida Department of Citrus and the Idaho Potato Commission.544 Wines and spirits are governed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) under the Department of Justice. As of January 24, 2003, this bureau is responsible for all inquiries about the manufacture, wholesale, and importation of alcohol and tobacco; regulating the alcohol and tobacco industries as well as the Special Occupational Tax; and the collection of the Alcohol, Tobacco, Firearms and Ammunition Excise Taxes imposed on manufactures and importers of these products.545 The Alcohol and Tobacco Tax and Trade Bureau (TTB) of the Department of the Treasury, under a certification system of label approval, offers many similarities to the European regulations.546 Two systems of protection co-exist—one political 542 Trubek & Bowen, supra note 71, at 23. 543 BARHAM ET AL., supra note 361, at 20. 544 Id. at 16. 545 United States Department of Justice, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, https://www.atf.gov/ (last visited Aug 24, 2016). 546 United States Department of the Treasury, ALCOHOL AND TOBACCO TAX AND TRADE BUREAU, https://www.ttb.gov/ (last visited Aug 24, 2016). 132 (i.e., a state or county name) and one more ecologically based on the American Viticultural Area (AVA).547 Their economic impact is also providing positive results; Idaho Potatoes confirmed a price premium of 25¢ and estimated that the industry generated approximately $5 billion in economic activity within the state of Idaho creating approximately 35,000 jobs.548 However, in comparison to the detailed European studies and information on many of the GI protected products, there is a lack of information and unique registration in the United States. A common methodology for evaluating the impacts of local products, mapping productions areas, or providing cost benefit analysis for product development under a GI system would be very useful to address their relevance.549 In practice, it seems that some of the main obstacles for the development of a sui generis GI system in the United States derive from the firm opposition of large producers and supplier groups. The expected extensions focus on rights granted to wine and spirit drinks and to foodstuff and other agricultural products, particularly cheese and meat. Furthermore, the facts demonstrate a limited participation to date by United States’ farmers and producers that might qualify as GIs in the US.550 However, Idaho Potato is a good example of the complexities of protection of GIs under the legal system as well as how certain producers have been successful in their endeavors.551 Evidence demonstrates that cheeses, fruits and vegetables, and grain get a 547 BARHAM ET AL., supra note 361, at 16. 548 Id. at 7. 549 Id. at 7–9. 550 Patrick J. Kole, Idaho Potato Commission, CHALLENGES FACING AMERICAN FOOD PRODUCERS IN PROTECTING THIER IP IN OTHER JURISDICTIONS 5 (2014). 551 U.S. Trademark Registration No. 2,403,069 (filed Mar. 17, 1997) (FAMOUS IDAHO POTATOES FAMOUS POTATOES GROWN IN IDAHO certification mark owned by Idaho Potato Commission); U.S. Trademark Registration No. 1,735,559 (filed July 21, i99i) (GROWN IN IDAHO IDAHO POTATOES certification mark 133 larger premium when using a GI while PDO products, which observe a more strict production protocol, obtain the highest market premiums, followed by PGI and the other more generic GI denominations.552 The USPTO refers to Florida oranges, Idaho potatoes, and Washington State apples as examples of domestic GIs as defined by Article 22(1) of the TRIPS Agreement, protected through the existing trademark system.553 Under the TRIPS Agreement, the continuous use is backed to April 15, 1984.554 Nonetheless, the TRIPS Agreement requires prohibition of GIs that suggest a mistaken origin misleading consumers.555 However, in accordance with Section 2(e)(3) of the Lanham Act,556 false GIs will only be actionable when there is clear evidence that consumers are aware of the reputation of the protected goods.557 Rogers developed on the links between trademarks, property, and producer liability, providing exhaustive analysis on social values of IPR558 and stating that “responsibility is as important for trade morality as for personal morality—and responsibility here, too, depends on distinguishability.”559 owned by State of Idaho Potato Commission); U.S. Trademark Registration No. 943,815 (filed June 7, 1971) (PREMIUM PACKED IDAHO POTATOES certification mark owned by State of Idaho). 552 Deselnicu et al., supra note 160, at 20. 553 United States Patent and Trademarks Office, GEOGRAPHICAL INDICATION PROTECTION IN THE UNITED STATES, 1 (2015). 554 TRIPS Agreement, supra note 8. 555 Id. 556 15 U.S.C. § 1052(e)(3). 557 Farley, supra note 6, at 81 & 82 (providing a good hypothetical use of “Bombay” in connection with watches not made in the suggested geographical origin, clearly measleading under TRIPS Agreement rules but doubtfully so in the United States since consumer perception of the existing association between watches and Bombay should be determined). 558 Rogers, supra note 444. 559 Id. at 250. 134 6.1. Wine Protection in the United States System GIs are considered an alien European legal concept when compared to the law in the United States where other means were established to protect agricultural knowledge.560 Viticultural regulation is a matter of federal law in the United States due to historical as well as taxation purposes.561 6.1.1. American Viticultural Area (AVA) Origin of wines and spirits in the United States is recognized through a special concept of AVAs that are very similar to European models of GI protection. As delimited grape-growing regions have distinguishing features, as described in the Code of Federal Regulations (CFR), AVAs are designations allowing vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in specific areas its geographic origin.562 There are 237 approved AVAs—including 128 in California563 — that require specific elements for approval including substantive documentation and evidence for name usage, boundary delineations, distinguishing features of the area, and a written boundary description 560 Jim Chen, A Sober Second Look at Appellations of Origin: How the United States Will Crash France’s Wine and Cheese Party, 5 MINN. J. GLOBAL TRADE 29, 58 (1996). 561 Id. at 42 & 43. 562 American Viticultural Areas created under the Authority of the Federal Alcohol Administration Act, T.D. TTB- 90, 76 Fed Reg 3500 (Jan. 20, 2011) (amending 27 C.F.R. §205). For detailed information, general provisions, AVA Petitions and approved AVAs, see ELECTRONIC CODE OF FEDERAL REGULATIONS, Title 27: Alcohol, Tobacco Products and Firearms E-CFR: TITLE 27: ALCOHOL, TOBACCO PRODUCTS AND FIREARMS ELECTRONIC CODE OF FEDERAL REGULATIONS, http://www.ecfr.gov/cgi-bin/textidx?c=ecfr&sid=057f99d792668247a3c45b4699417291&rgn=div5&view=text&node=27:1.0.1.1.7&idno=27 (last visited Aug 24, 2016). 563 Alcohol and Tobacco Tax and Trade Bureau, WINE APPELLATIONS OF ORIGIN, https://www.ttb.gov/appellation/index.shtml#definition (last visited Aug 26, 2016). 237 to reinforce the coherence of the international system for the protection of GIs and ensure synergy between the multilateral trading system established under the TRIPS Agreement. Mutually understanding the technicalities of both legal systems, plus the main issues internationally raised on the topic, may facilitate the existence of an effective global regulation. Therefore, over the existing regulations in the United States and the European Union as well as the positive precedents of recent trade agreements, exist key fundamentals for legally building a consensual GI framework that considers the interest of developing countries. 2. THE TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP AS THE SUMMIT OF POLITICAL AND ECONOMIC RELATIONS BETWEEN THE UNITED STATES AND THE EUROPEAN UNION Diplomatic relations between the United States and the European Union have existed since the establishment of the European Coal and Steel Community in 1951. Relations increased after the fall of the Berlin Wall in 1989 with the Transatlantic Declaration in 1990 initiating a regular political dialogue.979 The Transatlantic Agenda, launched in 1995, contained four broad objectives that are still extremely relevant: promoting peace, stability, democracy, and development around the world; responding to global challenges; contributing to the expansion of world trade and closer economic relations; and building bridges across the Atlantic.980 As a step forward, the Transatlantic Economic Partnership initiated in 1998 aimed to increase trade and investment by tackling regulatory barriers and fostering mutual recognition.981 In the last decade, 979 European Union, External Action, EU RELATIONS WITH THE UNITED STATES OF AMERICA, http://eeas.europa.eu/us/index_en.htm (last visited Aug 16, 2016). 980 Id. 981 Id. 238 with the establishment of the Transatlantic Economic Council in 2007, convergence provided the guidance to develop the Transatlantic Business Dialogue.982 Since June 2013, the TTIP negotiations have been developing anticipating an ambitious, comprehensive, and high-standard trade and investment agreement between the United States and the European Union in a joint effort to promote international competitiveness, jobs, and growth.983 This new challenge may open a new era of world trade and IPR with GI protection is one of the main areas to be reinforced. It remains to be seen if the parties will succeed in identifying the “sweet spot,” an agreement on GIs that will be acceptable to both sides.984 The main question is the feasibility of a solid regulation under TTIP based on an agreement between the United States and the European Union on GIs.985 To most Americans, as long as the characteristics of the cheese or the wine remain consistent with taste and material expectations, it is not important who makes it or where it comes from.986 If negotiators are to learn anything from the demise of the ACTA,987 openness and transparency should be the key strategy for the TTIP as negotiators prepare to draft the text on IPR in a way that convinces 982 Id. 983 Id. 984 Alan Matthews, GEOGRAPHICAL INDICATIONS (GIS) IN THE US-EU TTIP NEGOTIATIONS CAP REFORM.EU (2014), http://capreform.eu/geographical-indications-gis-in-the-us-eu-ttip-negotiations/ (last visited Aug 9, 2016). 985 Zacher, supra note 90. 986 See Leigh Ann Lindquist, Champagne or Champagne? An Examination of U.S. Failure to Comply with the Geographical Provisions of the TRIPS Agreement, 27 GA. J. INT'L & COM. L. 309, 342-43 (1999). 987 ACTA was negotiated by the European Union and its member states, the US, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland to improve the enforcement of anti-counterfeiting law internationally. This was the first time that Parliament exercised its Lisbon Treaty power to reject an international trade agreement. 478 MEPs voted against ACTA, 39 in favour, and 165 abstained, on July 4, 2012. 239 stakeholders and the public at large that the TTIP is an endeavor worthy of widespread support.988 The evolution of legislative positions regarding GIs in the European Union and the United States may open a new scenario not just between the partners but also globally. Much has been written on the differences and difficulties to bring together the existing GI system, in some cases as completely opposed and irreconcilable.989 Scott Danner describes the uncertain place of GIs under United States law and analyzes the history of the GI dispute that led to the adoption of the Wine Agreement.990 But, as previously mentioned, the Wine Agreement did not solve many of the pending issues and its development raised new concerns that have been duly developed by Brian Rose,991 Jeff Young,992 and Daniele Giovanucci.993 In any case, farmers and local producers demand solid ground for legal solutions to existing problems regarding the compatibility of GIs protection in both systems. Considering agricultural needs, Tim Josling stands to the benefit from such a trade and investment agreement, how long it might take, and what factors might influence its acceptability to legislators.994 Michelle Agdomar expressly refers to the need to shift the debate on GIs in order to deal with pending issues such as the form of multilateral and national registers, the consequences of registration, the duration of renewals, 988 Duncan Matthews, Negotiating the IP Chapter of an EU–US Transatlantic Trade and Investment Partnership: Let’s Not Repeat Past Mistakes, 44 INT'L REV. INTELL. PROP. & COMPET. L. 491 (2013). 989 Chen, supra note 539. 990 Danner, supra note 394. 991 Rose, supra note 576. 992 Young, supra note 395. 993 Giovannucci, Barham, and Pirog, supra note 70. 994 Tim Josling & Christophe Crombez, The Political Economy of Transatlantic Free Trade (2013). 240 and the modifications and withdrawals of notifications.995 The debate has been opened for a long time but many support finding an agreement on this matter. The United States Congress—including 177 members (out of 441) of the United States House of Representatives996 and fifty-five senators (out of 100)997 —voiced concern regarding “Common Food Names” concerns to United States Trade Representative Michael Froman and Agriculture Secretary Tom Vilsack over the European Union proposal to include GIs in the TTIP. Active lobbies, representing mainly the dairy and meat sector, are leading the opposition to include industrial protection for product names linked to origin claiming that the EU's action is directed not just at the United States but also at dozens of other nations around the globe. In its remarks, urging aggressive work against European Union efforts, Congress mainly refers to GIs as a barrier to trade granting Europeans exclusive market access and imposing restrictions on the use of many common food names. Congress is concerned that potential abuse of GIs threatens sales and exports of a number of United States agricultural products. And the European Parliament and the U.S. Congress are key players in the approval of any agreement of such importance. As a matter of fact, the favorable support of the House of Representative and the Senate are fundamental although the Trade Promotion Authority (TPA) also referred as the “fast 995 Michelle Agdomar, Removing the Greek from Feta and Adding Korbel to Champagne: The Paradox of Geographical Indications in International Law, 18 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 541 (2007). 996 Congress of the United States, LETTER ON CHEESE FOCUS TO AGRICULTURE SECRETARY VILSACK AND U.S. TRADE REPRESENTATIVE FROMAN SIGNED BY 177 MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVE (2014). 997 United States Senate, supra note 321. United States Senate, LETTER ON MEAT FOCUS TO AGRICULTURE SECRETARY VILSACK AND U.S. TRADE REPRESENTATIVE FROMAN BY 50 SENATORS (2014). 241 track negotiating authority” allows the President to present agreements to Congress for an assent vote preventing Congress from filibustering or amending TTIP.998 On the European side, the Commission declared that it aims to secure enhanced protection for European Union GIs in the United States as a mean of guaranteeing improved market access. The European Parliament reinforced the necessity of inclusion of GIs in TTIP stressing it specifically as a political priority.999 This constitutes a particularly important fact in the negotiation and legislative process for the transatlantic agreement. Parliamentary approval is a must after the experience of ACTA where the United States refused to give its consent to the European Union's interim agreement on banking data transfers to the United States via the SWIFT network, amid concerns for privacy, proportionality, and reciprocity.1000 The new provision established in Article 218.6 of the Treaty for the Functioning of the European Union increased the European Parliament’s competences from a consultative role to the recognition of 998 President Obama called on Congress to grant him TPA in his State of the Union address on Jan. 28, 2014. Bipartisan legislation to renew it was introduced on Jan. 9, 2014 to Congress but the lack of transparency in the negotiation, lobbies actions and the opposition of Democrat members both in the House and the Senate is causing considerable concerns. The White House, PRESIDENT BARACK OBAMA’S STATE OF THE UNION ADDRESS WHITEHOUSE.GOV (2014), https://www.whitehouse.gov/the-press-office/2014/01/28/president-barack-obamas-state- union-address (last visited Aug 16, 2016). 999 The exact wording is: “stressed that intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy, and that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including geographical indications, and should be consistent with existing international agreements; believes that other areas of divergence relating to IPRs should be resolved in line with international standards of protection,” Vital Moreira on behalf of the Committee on International Trade, European Parliament, MOTION FOR A RESOLUTION TO WIND UP THE DEBATE ON THE STATEMENTS BY THE COUNCIL AND THE COMMISSION PURSUANT TO RULE 110(2) OF THE RULES OF PROCEDURE ON EU TRADE AND INVESTMENT NEGOTIATIONS WITH THE UNITED STATES OF AMERICA (2013/2558(RSP)) (2013). Expressly includes, in conformity with the Treaty of Lisbon, “that Parliament will be asked to give its consent to the future TTIP agreement, as stipulated by the Treaty on the Functioning of the European Union, and that its positions should therefore be duly taken into account at all stages.” 1000 The resolution rejecting the agreement was approved on February 10, 2010, 10 by 378 votes to 196, with 31 abstentions. In the September 2009 resolution, the Parliament demanded that the accord should fully respect the rights of European Union citizens with regard to personal data protection. The data, they said, should be gathered “only for the purposes of fighting terrorism” and “the right balance” must be struck between security measures and the protection of civil liberties. The resolution calls for “the same judicial redress mechanisms as would apply to data held within the EU, including compensation in the event of unlawful processing of personal data.” 242 veto power over the conclusion of international agreements.1001 Obviously, with a profound impact on the European institutional balance of power, the legal recognition of its increasing involvement in the European Union foreign affairs has relevant consequences for TTIP negotiations. As Stephen Ladas, used to note when analyzing the European common market development, “an international regime, which favors large industrial organizations and discriminates against individual inventors and small business, is unsound economically, socially and politically.”1002 Consequently the importance of GIs for the European Parliament at this precise moment is fundamental to bring the European Union back to its values and closer to its citizens. The conflict between United States law and international treaties on GIs is not an issue of IPR infringement and being considered as a pirate nation1003 but a matter of global responsibility. The key is how to find a way forward to facilitate trade and development, both bilaterally and at the existing multilateral forum. Extending Article 23 enhanced protection under the TRIPS Agreement for wines and spirits to all products will not necessarily resolve the dispute in the WTO since an agreement must be reached on the proprietary nature of GIs to adopt a uniform system.1004 With a timetable that underestimated the complexity of the negotiations, TTIP will 1001 For assessing the impact on the international institutional balance of power on the European Union external relations, see MARIA ROMANIELLO, THE INTERNATIONAL ROLE OF THE EUROPEAN PARLIAMENT: THE SWIFT AFFAIR AND THE “RE-ASSESSED” EUROPEAN INSTITUTIONAL BALANCE OF POWER 97, http://www.onfederalism.eu/attachments/156_download.pdf (last visited Dec 23, 2013). 1002 Stephen P. Ladas, Common Market Patent and Trademark Treaties Open or Closed, 51 TRADEMARK REP. 1203, 1208 (1961). The reference to GIs is introduced by the author. 1003 Farley, supra note 6, at 73. 1004 Staten, supra note 253, at 245. 243 probably require an extended agenda that will go beyond 2017, after a new president is elected in the United States and certain important elections take place in Europe.1005 3. TRANSATLANTIC AND THE TRIPS AGREEMENT DEBATE ON GEOGRAPHICAL INDICATIONS. Since June 1998, when the proposal for a notification and registration system under Article 23(4) TRIPS Agreement was first proposed by the European Union,1006 modification of international regulations on GIs has been on the negotiation table.1007 Claiming for a universal binding system to all WTO members regardless of existing exceptions under Article 24 the aim is to obtain a commonly accepted legal framework1008 During the Doha Round, a new proposal was submitted by the European Union that offered a longer period to challenge GIs and facilitate the revision of the TRIPS Agreement.1009 However, those opposing any expansion of GIs argued against the new proposal intended to develop a simple, voluntary, non-binding notification and registration system with a searchable online database.1010 Opposition to GI expansion was 1005 European Commission, State of Play of the Negotiations, http://ec.europa.eu/trade/policy/in-focus/ttip/aboutttip/process/#_state-of-play (last visited Oct 31, 2016) 1006 WTO Proposal, Multilateral Register of Geographical indications for Wiens and Spirits Based on Article 23-4 of the TRIPS Agreement, IP/C/W/107 (Jul. 28, 1998) [hereinafter 1998 EU Proposal]. 1007 See Burkhart Goebel, Geographical Indications and Trademarks-The Road from Doha, 93 TRADEMARK REP. 964 (2003). One decade later, and after numerous court decisions, but mainly two milestones cases under public international law, the author refers clear guiding principles for resolving conflicts between GIs and trademarks. See also Goebel & Groeschl, supra note 6. 1008 1998 EU Proposal, supra note 1006, at 2-3. 1009 WTO Proposal, Implementation of Article 23.4 of the TRIPS Agreement Relating to the Establishment of a Multilateral System of Notification and Registration of Geographical Indications, IP/C/W/107/Rev.1, at 4-5 (Jun. 22, 2000) [hereinafter 2000 EU Proposal]. 1010 WTO Proposal, Proposal for a Multilateral System for Notification and Registration of Geographical Indications for Wines and Spirits based on Article 23.4 of the TRIPS Agreement, TN/IP/W/5 (Oct. 23, 2002) (Communication from Argentina, Australia, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Namibia, New Zealand, Philippines, Chinese Taipei, and the United States). 244 reinforced by the United States and Canada, which supported the new wine producers and cellars competing with older European wines.1011 Negotiations for enhanced GI protection under the TRIPS Agreement need to face issues on the table in a chronological order and start with the establishment of a multilateral register for wines and spirits by narrowing Article 24 exceptions. After that, negotiations should proceed to extend the protection granted under Article 23 to other goods and, finally, achieve the expected goal for the European Union of including all GIs in the register.1012 With political will, hard work, and a preliminary agreement under TTIP, the Doha Round may reinforce such a deep and necessary reform under the TRIPS Agreement with global consequences.1013 Hong Kong1014 and the International Trademarks Association (INTA)1015 introduced a compromise proposal where the presumption requested by the European Commission would apply on a voluntary basis to those countries that elected to participate in the system and provide prima facie evidence for protection in the country of origin and judicial opposition when challenged.1016 The proposal incorporated a rebuttable presumption in favor of GI owners in relation with ownership, in compliance with the definition of Article 22 of the TRIPS Agreement and the protection granted in the country of origin. INTA recommended a system that would 1011 WTO Proposal, Multilateral System of Notification and Registration of Geographical Indications for Wines (and Spirits), TN/IP/W/6 (Oct. 29, 2002) (Communication from Argentina, Australia, Canada, Chile, New Zealand, and the United States). 1012 Waggoner, supra note 237, at 592. 1013 Id. at 592. 1014 WTO Proposal, Multilateral System of Notification and Registration of Geographical Indications Under Article 23.4 of the TRIPS Agreement, TN/IP/W/8 (Apr. 23, 2003) [hereinafter 2003 WTO Proposal] (Communication from Hong Kong, China). 1015 INTA, Establishment of a Multilateral System of Notification and the Registration of Geographical Indications for Wines and Spirits pursuant to TRIPS Article 23 (4), (Apr. 2003), [hereinafter 2003 WTO INTA Proposal] available at http://www.wipo.int/edocs/mdocs/geoind/en/wipo_geo_sfo_03/wipo_geo_sfo_03_11.pdf.. 1016 2003 WTO Proposal, supra note 1014, at 2. 245 follow Madrid or Patent Cooperation Treaty (PCT) approaches including (i) notification and registration through an international body, (ii) ex officio examination of protectability in the country of protection, (iii) refusal and opposition on the basis of prior trademark rights, and (iv) the ability to challenge the registration in the national courts.1017 Just before the Cancun meeting, in August 2003, the “claw back” claim of recognition of forty-one European GIs was on the table claiming international protection. To justify the establishment of a multilateral register of GIs as well as the extension of protection to products other than wines and spirits, the European Union provided the abused shortlisted regional quality products. With misleading cases of unfair trade on well-known GIs, Europeans aimed to prevent current non-abused GIs from future usurpation of GIs names together with their translations.1018 The European Union emphasized the protection and extension of GIs and argued the potential benefits for developing countries. However, for the investment in reputation products such as coffees, teas, or chocolates is already happening under certification law regimes and the main intention behind European proposals is to secure more extensive monopoly rents to developed “agroalimentaire” industries.1019 The ironic paradox was to seek extension of TRIPS 1017 2003 WTO INTA Proposal, supra note 1015, at 6. 1018 The first list included 22 wines and spirits: Beaujolais; Bordeaux; Bourgogne; Chablis; Champagne; Chianti; Cognac; Grappa di Barolo, del Piemonte, di Lombardia, del Trentino, del Friuli, del Veneto, dell'Alto Adige; Graves; Liebfrau(en)milch; Malaga; Marsala; Madeira; Médoc; Moselle; Ouzo; Porto; Rhin; Rioja; Saint-Emilion; Sauternes; and Jerez, Xerez. And 19 other agricultural products and foodstuffs: Asiago; Azafrán de la Mancha; Comté; Feta; Fontina; Gorgonzola; Grana Padano; Jijona y Turrón de Alicante; Manchego; Mortadella Bologna; Mozzarella di Bufala Campana; Parmigiano Reggiano; Pecorino Romano; Prosciutto di Parma; Prosciutto di San Daniele; Prosciutto Toscano; Queijo São Jorge; Reblochon, and Roquefort. Press Release, European Commission, WTO Talks: EU Steps up Bid for Better Protection for Regional Quality Products (Aug. 28, 2003), available at http://europa.eu/rapid/press-release_IP-03-1178_en.htm?locale=en (last visited Aug. 8, 2016). 1019 Hughes, supra note 39, at 385. 246 while being challenged on non-compliance.1020 Although the panel legitimated a legal system in which new GIs can adversely impact established trademarks, the European Union quality schemes system was changed in 2006.1021 The remaining conflict between the United States and the European Union—mainly due to strong lobbying by the dairy and meat sectors—is hindering the global potential of GIs. On the opposite side, the main international organizations with responsibilities on agricultural development are fostering its development throughout legal frameworks and guides. Examples are available at WIPO,1022 FAO,1023 the United Nations Industrial Development Organization (UNIDO),1024 UNCTAD,1025 the International Trade Center,1026 the Inter-American Institute for Cooperation on Agriculture (IICA),1027 the Technical Centre for Agricultural and Rural Cooperation (CTA),1028 the Centre National de la Recherche Scientifique,1029 and the 1020 Panel Report, European Communities-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DSI74/R (Mar. 15, 2005) [hereinafter WTO Panel Report on Origins Regulations]. 1021 Hughes, supra note 39, at 323–30. 1022 WIPO, supra note 219. See also WIPO, WORLD INTELLECTUAL PROPERTY INDICATORS (2014). 1023 DOMINIQUE BARJOLLE AND EMILIE VANDECANDELAERE, supra note 363. See also VANDECANDELAERE ET AL., supra note 3. And DAMARY AND VANDECANDELAERE, supra note 19. 1024 RUSSO, supra note 2. 1025 RANGNEKAR, supra note 101. 1026 GIOVANNUCCI ET AL., supra note 19. 1027 INTER-AMERICAN INSTITUTE FOR COOPERATION ON AGRICULTURE (IICA), CALIDAD DE LOS ALIMENTOS VINCULADA AL ORIGEN Y LAS TRADICIONES EN AMÉRICA LATINA: ESTUDIO DE CASOS (Tegucigalpa, Honduras: IICA ed. 2008). 1028 ISOLINA BOTO & SUZANNE PHILLIPS, THE GEOGRAPHY OF FOOD: RECONNECTING WITH ORIGIN IN THE FOOD SYSTEM 63 (2013), https://brusselsbriefings.files.wordpress.com/2013/04/cta-reader-31.pdf (last visited Jul 26, 2016). See also MONIQUE NGO BAGAL & MASSIMO VITTORI, PRACTICAL MANUAL ON GEOGRAPHICAL INDICATIONS FOR ACP COUNTRIES (2011). And MICHIEL KUIT & YUCA WAARTS, SMALL-SCALE FARMERS, CERTIFICATION SCHEMES AND PRIVATE STANDARDS: IS THERE A BUSINESS CASE?: COSTS AND BENEFITS OF CERTIFICATION AND VERIFICATION SYSTEMS FOR SMALL-SCALE PRODUCERS IN COCOA, COFFEE, COTTON, FRUIT AND VEGETABLE SECTORS (2014), http://publications.cta.int/media/publications/downloads/1823_PDF.pdf (last visited Jul 27, 2016). 1029 BÉRARD AND CENTRE NATIONAL DE LA RECHERCHE SCIENTIFIQUE (FRANCE), supra note 867. 253 trademarks that avoids misleading consumers; and (v) enforcement of protection through appropriate administrative action by public authorities.1061 Strategically, the European Union separate wines and spirits from other agricultural and foodstuff products, requiring a specific section in TTIP to ensure a stable and predictable bilateral legal scheme.1062 Aiming to update previous existing agreements1063 as well as improve and create a comprehensive legal framework,1064 the request includes the exclusive protection to legitimate producers of seven European wine names—so-called semi-generics—and twenty-two additional spirit drink names currently used on the United States territory,1065 envisaging the establishment of a Committee on trade in wines and spirit drinks.1066 Grounded on its economic value,1067 the European Union even submitted the structure of a possible GI text,1068 including its priorities and request the highest level of protection for a 1061 European Commission, OUTLINE OF TEXT ON GEOGRAPHICAL INDICATIONS (2016), http://trade.ec.europa.eu/doclib/docs/2016/march/tradoc_154385.%20Paper%20- %20GIs%20skeleton%20FINAL.pdf (last visited Aug 8, 2016). 1062 EUROPEAN COMMISSION, supra note 1026, at 5. 1063 Agreement between the European Community and the United States of America on trade in wine of 8 March 2006 (OJEC L87 of 24 March 2006) and Agreement in the form of exchange of letters between the European Community and the United States on the mutual recognition of certain distilled spirits/spirit drinks of 25 March 1994 (OJEC L 157 of 24 June 1994). 1064 EUROPEAN COMMISSION, supra note 1026, at 7. (Not just the content but also its legal status since the existing agreements were not approved by Congress and now TTIP requires its approval, as it does for the European Council, that had already approved previous agreements on wine and spirits). 1065 Id. at 6 and 7. (The wines included are: Burgundy, Chablis, Champagne, Chianti, Claret, Haut Sauterne, Hock, Madeira, Malaga, Marsala, Moselle, Port, Retsina, Rhine, Sauterne, Sherry and Tokay. Regarding spirit drinks, the eight spirit names—six Europeans and two for the United States—protected by the Agreement on distilled spirit/spirit drinks of 1994 will be included together with twenty-two new European names). 1066 Id. at 7. 1067 Id. at 8 and 9. (GI account for 25-30% of EU trade in processed agricultural products and GI exports outside the European Union represent over €15 billion with wine GIS up to 80% of total wine exports and practically all spirits exports are aso protected under a GI. The United States, accounting for 30% of agricultural imports from the EU is the leading market for GI exports). 254 short list of 201 European GIs, claiming the prohibition of their use even when the consumer is not misled.1069 Therefore, protection should be granted against geographic names when the true origin of the product is indicated, translated names and the use of expressions such as “kind,” “type,” “style,” “imitation,” or the like.1070 And, to ensure enforcement, administrative measures should be provided in addition to judicial means.1071 The initial shortlisted GIs1072 were selected by the European Commission in coordination with the Member States based on objective criteria such as economic relevance and the current IPR situation in the United States’ market.1073 In relation with existing indications, trademarks, and generic names, the proposal addresses ad hoc solutions to be found when GIs conflict with prior uses.1074 The initial list contains seventy-seven GIs on cheeses—38% of the total GIs specifically referred—when only 34%-58% of the 172 GIs included were claimed under CETA,1075 19%-32% out of sixty GIs within the KOREU,1076 and 12%-27% of 219 GIs in the Central America Association Agreement.1077 As one of the main practical areas of conflict due to the strong opposition from the main dairy lobbies both in Canada and the United States, cheese seem to be a crucial point that may determine the outcome of the negotiations. 1068 European Commission, supra note 1039. (“This outline of text was tabled by the European Union for discussion with the US and then made public on 21 March 2016. The actual text in the final agreement will be a result of negotiations between the EU and US.”). 1069 EUROPEAN COMMISSION, supra note 1026, at 9. 1070 Id. 1071 Id. 1072 It is considered an open list that could be expanded in the future, see id. at 9. 1073 Id. 1074 Id. 1075 Annex 20-A Part A. 1076 Annex 10-A Part A. 1077 Annex 17 Part A. 255 5. THE NEW CONCEPT OF CERTIFIED GEOGRAPHICAL INDICATIONS: ENSURING QUALITY IN A GLOBAL CONCEPT GIs are multi-functional and their social, economic, and legal aspects embody the concept of globalization and local development. Protected products participate in global markets while supporting local cultures and economies.1078 Consequently, GI protection values and aims are in full accordance with the European Union motto “United in Diversity”1079 and the culture, history and tradition of the United States. With the two coexisting legal regimes to protect GIs, many countries—notably Members States of the European Union—define and treat GIs as a distinct type of IPR (as established in the TRIPS Agreement) and insist on further regulations due to its importance for agricultural development. Others, notably following the example of the United States, consider GIs as a subcategory of trademarks. Much has been written on these differences from every possible approach addressing the legal nature of the complex concept of GIs. However, its future may depend on agreements subscribed under the TTIP, the development of Articles 22-24 of the TRIPS Agreement, or a new international instrument providing a global framework of protection. As worldwide consumers demand high-quality food products, labeling and GIs may facilitate market access for certain products and contribute to increased public information and awareness.1080 Nonetheless, GI systems are not homogeneous between countries and can be used 1078 GIOVANNUCCI ET AL., supra note 19, at xvii, Executive Summary. 1079 European Commission, EUROPA, THE EU MOTTO, https://europa.eu/european-union/abouteu/symbols/motto_en (last visited Aug 1, 2016). (“It signifies how Europeans have come together, in the form of the EU, to work for peace and prosperity, while at the same time being enriched by the continent's many different cultures, traditions and languages.”) 1080 Dominique Barjolle, Sophie Reviron & Chappuis, J.M., Organization and Performance of the Origin Labeled Food Alliances, in FOCUS ON AGRICULTURAL ECONOMICS 91 (A.R. Bellows, ed., 2005). 256 as trade barriers against competition. Important regulatory and cultural differences between the European Union and the United States on the registration and protection of GIs led to the formation of a WTO dispute settlement panel leading to the new European rules enacted in 2006.1081 Given the potential for GI labels to supply consumer information, a positive political context is provided for the negotiations under the Doha Round and can promote development. Therefore, the European Union is attempting to incorporate other features of its system of GI protection into the TRIPS system, often finding opposition from those that do not consider them as a tool for development and effective fair trade. In fact, due to its economic, cultural, and social consequences, proper GIs grant protection to a community rather than individual right holders. Thus, the fundamental need for national, regional, and international political strategies and trade agreements to establish legal frameworks that allow local producers and the market to benefit from the uniqueness and commercial added value of the product. Since no progress has been made at the international level, due to the strong opposition notably from the United States, and since the Doha Development Round remain stalled, the European Union sought to pursue its objectives through alternative legal mechanisms. The concept of “TRIPS-Plus”1082 expanded to all external actions in order to ensure international protection of GIs. Among these, a wide variety can be found including stand-alone agreements on GIs such as the case of China;1083 1081 Appellate Body Report, European Communities - Trademarks and Geographical Indications, WT/DS174/R (Mar. 15, 2005). 1082 Despite the Doha Declaration, many developing countries have been coming under pressure to enact or implement even tougher or more restrictive conditions on their IPR than the standards required by the TRIPS Agreement. Many consider that will seriously compromise the ability of developing countries to use TRIPS flexibilities for development objectives. 1083 China's accession to the WTO in December 2001 was a major step. It required China to take bold reforms and liberalise important parts of its economy. The Scientific and Technological Agreement between the People’s Republic of China and the European Union was signed in 1998 and renewed in 2004 and 2009. It provides a framework for cooperative scientific and technological research and development activities between the European 257 traditional bilateral agreements on areas of particular interest such as wine and spirits;1084 commitments to cooperate in economic and partnership agreements negotiations with African and Caribbean countries such as the case of Belize;1085 specific agreement with neighboring countries;1086 and particularly through the negotiation of comprehensive and ambitious free trade Union and China. One of the Agreement’s principles stipulates that cooperative activities shall be conducted on the basis of appropriate protection of IPR. Agreement for Scientific and Technological Cooperation between the European Community and the Government of the Peoples’s Republic of China, O.J. (L 6). Besides, regarding GIs the European Union-China Geographical Indications “10 plus10” project protected ten famous European food names in China while in parallel, the European Commission examined and registered ten Chinese food names including "Pinggu da Tao" (peach) and "Dongshan Bai Lu Sun" (asparagus), which received protected status in the European Union as Geographical Indications. The pilot project started in July 2007 and ended in 2012. In terms of value, China is among the five most important export markets of European GI products with a total value in 2010 exports to China over €650 million, European Commission Press Releases, EU-CHINA GEOGRAPHICAL INDICATIONS – “10 PLUS 10” PROJECT IS NOW COMPLETE (2012), http://europa.eu/rapid/press-release_IP-12-1297_en.htm (last visited May 13, 2016). 1084 On September 1, 2010, the 2008 Wine Trade Agreement between Australia and the European Communities requiring Australia to comply with the European GI system with respect to wine products, went into effect. This agreement replaces another one signed in 1994 between the two wine powers and protects eleven of the EU drink labels and 112 of the Australian GIs. See Agreement Between the European Community and Australia on Trade in Wine, 2009 J.O. L/28, 3. 1085 EUROPEAN COMMISSION, THE CARIFORUM-EU ECONOMIC PARTNERSHIP AGREEMENT (EPA). A NEW PARTNERSHIP FOR TRADE AND DEVELOPMENT. FACTSHEET: HOW THE EU IS PUTTING THE EPA INTO PRACTICE 9 (2012). 1086 See Andreas Marchetti, The European Neighbourhood Policy, 158 FOREIGN POLICY EU’S PERIPHERY ZEI DISCUSS. PAP. C 29 (2006), http://aei.pitt.edu/6830/01/dp_c158Marchetti.pdf (last visited May 13, 2016). 258 and association agreements (e.g. Canada,1087 Singapore,1088 South Korea,1089 Central America,1090 and the Andean Community1091). The 2008 Wine Agreement between Australia and the European Union is also an adaptable model for future trade negotiations since it maintains four essential elements to preserving domestic wine production while constructing an international wine market. The Agreement: (i) establishes GI protection for local wine products, (ii) recognizes domestic wine processes and terminology, (iii) creates a transitional stage during which previously-used GIs will be “phased out,” and (iv) allows for future alterations among the two world wine powers. 1087 See Morin and Duchesne, supra note 56. See also GOVERNMENT OF CANADA, supra note 327. 1088 The European Union and Singapore have initialled the text of a comprehensive free trade agreement on 20 September 2013. The draft agreement needs now to be agreed upon by the European Commission and the Council of Ministers, before being ratified by the European Parliament. European Commission, COMMISSION PROPOSAL FOR CONCLUSION, SIGNATURE AND PROVISIONAL APPLICATION OF THE EU-SINGAPORE FREE TRADE AGREEMENT, http://ec.europa.eu/trade/policy/countries-and-regions/countries/singapore/ (last visited May 13, 2016). 1089 The European Union-South Korea Free Trade Agreement (FTA) entered into force in July 2011 and is the first completed agreement in a new generation of Free Trade Agreements launched by the European Union in 2007. COUNCIL DECISION 011/265/EU OF 16 SEP. 2010 ON THE SIGNING, ON BEHALF OF THE EUROPEAN UNION, AND PROVISIONAL APPLICATION OF THE FREE TRADE AGREEMENT BETWEEN THE EUROPEAN UNION AND ITS MEMBER STATES, OF THE ONE PART, AND THE REPUBLIC OF KOREA, OF THE OTHER PART, supra note 855. See also EUROPEAN COMMISSION, supra note 351. 1090 The European Union and the Central American region concluded a new Association Agreement, signed on June 29, 2012. The trade pillar of the Association Agreement has been provisionally applied since August 1, 2013 with Honduras, Nicaragua and Panama, since October 1 with Costa Rica and El Salvador, and since December 1, 2013 with Guatemala. Decisión del Consejo, de 25 de junio de 2012 , Relativa a la Firma, en Nombre de la Unión Europea, del Acuerdo por el que se establece una Asociación entre la Unión Europea y sus Estados miembros, por un lado, y Centroamérica, por otro, y a la Aplicación Provisional de su parte IV Relativa al Comercio, 2012/734, OJ L 346, 15 Dec. 2013, 1-2. See also European Commission, EUROPEAN UNION-CENTRAL AMERICA ASSOCIATION AGREEMENT, http://ec.europa.eu/trade/policy/countries-and-regions/regions/central-america/ (last visited May 13, 2016). 1091 In June 2012 the European Union signed an ambitious and comprehensive Trade Agreement with Colombia and Peru. The agreement is provisionally applied with Peru since 1 March 2013 and with Colombia since 1 August 2013. See EUROPEAN COMMISSION, ANNUAL REPORT ON THE IMPLEMENTATION OF THE EUROPEAN UNION - COLOMBIA/PERU TRADE AGREEMENT COM (2014) 718 final, Brussels 4 Dec. 2014. In July 2014 negotiations were concluded for the accession of Ecuador to the Trade Agreement with Colombia and Peru, European Commission, ANDEAN COMMUNITY - EUROPEAN COMMISSION TRADE AGREEMENT, http://ec.europa.eu/trade/policy/countries-and- regions/regions/andean-community/ (last visited May 13, 2016). 259 Most notably, the Agreement also recognizes that Australian vintners may no longer produce wines with European GIs and awards complete legal protection to quality wines. Complete questioning and development of the main topics on GIs were studied under CETA and KOREU. 1092 Global studies on international legal and regulations of GIs are providing not just a clear picture of the main concerns but also innovative solutions. Treating GIs as private rights by the WTO, just like trademarks, prevents its use for protectionist purposes and runs counter to the traditional view that GIs constitute a communal right.1093 A detailed analysis and interpretation of the definition within the TRIPS Agreement must be the point of departure to obtain results at a global level. Nonetheless the previous chapters provide an adequate understanding of the trade rules that apply to the recognition, protection, and enforcement of GIs as well as competing legal terminology. From a shared European and United States perspective, the importance of global recognition for local development adds to the conceptual debate.1094 Place-based intellectual property strategies for traditional and local agricultural products, and therefore acting locally to participate globally, seem to be the right approach to move forward with a comprehensive vision of GI protection.1095 1092 Agdomar, supra note 973. 1093 GEOGRAPHICAL INDICATIONS FOR FOOD PRODUCTS, supra note 927 (focusing primarily on the Reports of the Panels in the WTO disputes brought by Australia and the United States against the European Communities, it explores the meaning of the TRIPS Article 22 and Article 24 commitments, especially as they concern the definition of the term GI and national and most favored nation treatment). 1094 LABELS OF ORIGIN FOR FOOD: LOCAL DEVELOPMENT, GLOBAL RECOGNITION, (Elizabeth Barham & Bertil Sylvander eds., 2011). 1095 Teshager W. Dagne, Place-based Intellectual Property Strategies for Traditional and Local Agricultural Products: Acting Locally to Participate Globally in a Rightbased Approach, 17 DRAKE J. AGRIC. L. 565 (2012). See also Nation, supra note 642. 260 GI research involve a variety of disciplinary fields, such as economics, sociology, geography, agronomy, technology, and law.1096 The most widely explored topics refer to the role of localized production in the definition of territory, local development, and tourism together with: economic issues related to quality and protection; the different conventions arising from local production; the links between quality, origin, territory, and competitiveness; and the interactions between stakeholders, the markets, and the economic organization of local industries and supply chains.1097 Costs and time deployed to build trust breed inertia in agents/institutions, which locks in existing governance structures.1098 Most studies refer to the elements defining the multiple connectedness of food products to their places of origin can be comprised in four separate “originality” factors: (i) territoriality, or physical connectedness of supply chain activities to the place; (ii) typicity,1099 or place-specific details of supply chain practices and artifacts; (iii) traditionality, or rootedness of supply chain practices in place-bound history; and (iv) communality, or the sharing of experience and practices by the supply chain actors.1100 Actually, the higher the degree of originality, the less vulnerable a product is to replication elsewhere.1101 To obtain a valid international legal concept that may find consensus, it is necessary to establish clear criteria and standards on the subject matter. The broad concept of GIs currently 1096 BÉRARD AND CENTRE NATIONAL DE LA RECHERCHE SCIENTIFIQUE (FRANCE), supra note 867, at 5. 1097 Id. at 5. 1098 RANGNEKAR, supra note 68, at 22. 1099 Translation of the Italian concept “Tipici” to express a unique type of product. See PACCIANI ET AL., supra note 205. See also ARFINI, BELLETTI, AND MARESCOTTI, supra note 131. Regarding the links between typical products and reputation see Belletti, supra note 69. 1100 Hielke S. Van Der Meulen, A Normative Definition Method for Origin Food Products, ANTHROPOL. FOOD 12, 17 (2007). 1101 Id. at 18. 261 refers to such a large variety of ideas that it creates confusion and misunderstanding. From the idea of the indication of source or place names to the highest level of European protected designations of origin, a variety of similar concepts are referred as country of origin labeling (COOL), geographically deceptively misdescriptive mark, or marks indicative of conditions of origin (MICO), among many others. The legal essence of GIs derives from the recognition of existing unique, typical, authentic, traditional, and particular features in agricultural products and foodstuffs. As a matter of fact, the product has been, is and will be permanently linked to its geographic origin, “terroir,” since its characteristics, quality and reputation are given by the unique conditions of the place of origin. Linking GI products with origin is a fundamental part of the legal concept but it is necessary to consider the needs of developing countries over the protectionist European reasoning. As previously noted, the concept of GIs must be legally adapted to include intrinsic rights to the goods nature and origin Similar concepts exist in the United States, such as AVAs, COOL, or COLA.1102 Therefore, the definition of the area of origin of the product—the fundamental link providing specific and unique organoleptic features grounding distinctiveness and quality—together with the establishment of a local development plan demonstrating economic, social, cultural, and environmental impact through proper organizations and rules, may be the grounds to build a functional GI model. The general concept on GIs, which found consensus under the TRIPS Agreement two generations ago referred to given qualities, reputation, or other characteristics essentially originating and attributable to their geographical origin. It specifically focused on “indications 1102 Alcohol and Tobacco Tax and Trade Bureau, TTB WEB SITE. LABELING. COLAS ONLINE, https://www.ttb.gov/labeling/colas.shtml (last visited Nov 8, 2016). (Providing with theOnline TTB's system for completing the Federal label certification and approval process for COLAs “Certificates of Label Approval”). 262 which identify a good as originating in the territory of a Member (of the WTO), 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.”1103 The most recent European regulation on quality schemes for agricultural products and foodstuffs distinguishes “designation of origin” and “geographical indications.”1104 The fundamental difference is that all production steps for “designations of origin” take place in a defined geographical area or exclusively provide its quality or particular characteristics.1105 GIs do not include exclusivity and only require that one of the production steps take place in the place of origin.1106 As previously noted, the most appropriate legal figure to protect GIs in the United States is certification trademarks1107 requiring the certified compliance of certain established standards. The term “certification mark” means any word, name, symbol, or device, or any combination thereof— (1) used by a person other than its owner, or (2) which its owner has a bona fide intention to permit a person other than the owner to use in commerce and files an application to register on the principal register established by this Act, to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.1108 1103 TRIPS Agreement, supra note 8, at Art. 22. 1104 EU Agricultural Products and Foodstuff Regulation, Art. 5. 1105 Id. 1106 Id. 1107 U.S. Trademark Act of 1946, 15 United States Code (U.S.C.) §1054 (Section 4 of the Lanham Act). 1108 15 U.S.C. §1127 269 and the impact on local development.1134 However, the requirement of the initial date of use should be amended to recognize historical existence and distinctiveness of the agricultural product or foodstuff.1135 Within the United States, primarily geographic terms are registered as complete or part of a certification mark. GIs can be registered even without a disclaimer or a resort to secondary meaning when they are used to certify the origin and the public understands that goods come only from a certain region of origin.1136 However, marks that are geographically deceptive may not be registered as a certification mark of regional origin.1137 The European Union currently proposes the GI system from Article 22 of the TRIPS Agreement in its proposal to include GIs under TTIP.1138 The main objectives for the European Union in the field of GIs are: (i) ensuring general regulation for GIs and specific protection for a short list covering 201 food GIs and twenty-two names of spirits in addition to the six spirits and seventeen semi-generic names already covered by the 1994 EU-U.S Wine Agreement;1139 (ii) providing a level of protection that prohibits the use of a GI even when the consumer is not misled;1140 (iii) adding 1134 37 C.F.R. §2.61(b). 1135 37 C.F.R. §2.20; 37 C.F.R. §2.71(c); TMEP §903.05. 1136 U.S. Legislation prohibits registration of primarily geographically descriptive terms (or symbols) but specifically excepts “indications of regional origin” registrable under Section 4 of the Lanham Act, 15 U.S.C. §1054, See Section 2(e)(2), 15 U.S.C. §1052 (e)(2). See also Institut National Des Appellations D’Origine v. Brown-Forman Corp., 47 USPQ2d 1875 (TTAB 1998). 1137 Id. 1138 European Commission, supra note 1061, at 1. 1139 See European Commission, supra note 1063. See also European Commission, supra note 1048, at 9. (The European Commission in coordination with EU Member States established GI short lists taking into account objective criteria such as the economic relevance and the IPR situation in the U.S. market.Anyhow, the EU seeks to establish the principle of an open list and the initial list of names could be expanded). 1140 Id., (i.e. when the true origin of the product is indicated, the GI name is accompanied with expressions such as “kind,” “type,” “style,” “imitation,” or the like; or the name is translated). 270 administrative enforcement in addition to judicial means;1141 and (iv) finding ad hoc solutions on GIs conflicting with generic names, prior uses, or prior trademarks.1142 The conceptual acceptance of the TRIPS Agreement was already included in agreements between the European Union and Canada as well as Central America.1143 However, most other European Union trade agreements provide with the EU GIs concepts referring its own regulations, such as the specific reference under Article 10.18 of the agreement with South Korea directly address the European and South Korea agricultural quality product rules.1144 But even the United States has accepted a concept wth similar terminology under Article 18.1 of the Trans-Pacific Partnership Agreement where GIs are considered an innovative section without precedent.1145 With Canada and Mexico regulating GIs, both its NAFTA partners are now willing to find a common playing field with the European Union. While it is a recent development in Canada, Mexico has traditionally protected GIs since 1942 and provides two alternative forms of protection: collective marks and appellations of origin.1146 1141 Id. 1142 Id. 1143 CETA Agreement, Art. 20.16, Definitions; EU-Central America Association Agreement, Art. 242 General Provisions. 1144 EU-South Korea Free Trade Agreement, Art. 10.18, Recognition of GIs for agricultural products and foodstuffs and wines. (The concept of GIs based on existing regulation in the European Union, precisely Council Regulation (EC) No 510/2006, with its implementing rules, for the registration, control and protection of GIs of agricultural products and foodstuffs in the European Union, and Council Regulation (EC) No 1234/2007 on the common organisation of the market in wine; and South Korea referes the Agricultural Products Quality Control Act, with its implementing rules). 1145 Trans-Pacific Partnership Agreement between the Government of Australia and the Governments of: Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States of America and Vietnam, signed Feb. 4, 2016 [2016] ATNIF 2 (not yet in force). 1146 IMPI, Instituto Mexicano de la Propiedad Industrial, http://www.gob.mx/impi (last visited, Jun. 23, 2015). 271 Furthermore, the protection requested by the European Union in the new TTIP proposal is assimilated to the level of protection in Article 23.1 of the TRIPS Agreement.1147 Previous trade agreements included a detailed protection ensuring European Union priorities, such as the use linked to the true place of origin, consumer misleading, or unfair competition within the meaning of Article 10bis of the Paris Convention. In fact, the protection is provided even where the true origin of the product is indicated or the GI is used in translation or accompanied by expressions such as “kind,” “type,” “style,” “imitation” or the like.1148 1147 EU GI Proposal in TTIP at 1. 1148 CETA Agreement, Art. 20.19, Protection for Gis listed in Annex 20A; EU-South Korea Free Trade Agreement, Art. 10.21, Scope of Protection; and EU-Central America Association Agreement, Art. 244, System of Protection. 272 Table 3: Comparative Regulatory Analysis on GIs: Definition and Protection (I) EU-US TRANSATLANTIC TRADE AGREEMENT EU-CANADA COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT Negotiations Negotiations Closed - 2014 Legal Review Completed - 2016 Signed - 2016 and In Force - 2017 (expected) Proposal (Mar. 2016) Chap. 20 IPR and Annexes 20 A, B and C D E F I N I T I O N S GIS are defined as in TRIPS art 22.1. Right of use: any operator complying with the technical specifications is entitled to use the GI. Wines and spirit drinks in a separate comprehensive section. Art.20.16 Definitions: GI means an indication which identifies an agricultural product or foodstuff as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the product is essentially attributable to its geographical origin; and product class means a product class listed in Annex 20. P R O T E C T I O N Parties commit to provide to the GIs of the other Party a level of protection as set as in art. 23.1 of TRIPS. Art.20.19. Protection for GIs listed in Annex 20A: 2.Each Party shall provide the legal means for interested parties to prevent(a) the use of a GI of the other Party listed in Annex 20-A that either: (i) does not originate in the place of origin specified in Annex 20-A for that GI; or (ii) does originate in the place of origin specified in Annex 20-A for that GI but was not produced or manufactured in accordance with the laws and regulations of the other Party that would apply if the product were for consumption in the other Party; (b) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; and (c) any other use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention for the Protection of Industrial Property (1967) done at Stockholm on 14 July 1967.3. The protection referred to in subparagraph 2(a) shall be provided even where the true origin of the product is indicated or the GI is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. 273 Table 4: Comparative Regulatory Analysis on GIs: Definition and Protection (II) EU-SOUTH KOREA FREE TRADE AGREEMENT EU-CENTRAL AMERICA ASSOCIATION AGREEMENT Signed - 2010 Provisional Application - 2011 In Force - 2015 Signed in 2012 Provisional Application 2013 Chap. 10 IPR and Annexs 10 A and B Part IV Trade- Tit.VI IPR and Anexxes 17 A&B D E F I N I T I O N S Art.10.18. Recognition of GIs for agricultural products and foodstuffs and wines: No proper definition. Concept of GIs based on existing regulation in the European Union (Council Regulation (EC) No 510/2006, with its implementing rules, for the registration, control and protection of GIs of agricultural products and foodstuffs in the European Union, and Council Regulation (EC) No 1234/2007 on the common organisation of the market in wine) and South Korea (Agricultural Products Quality Control Act, with its implementing rules). Art 10.19 for wines, aromatised wines and spirits (also national laws). Art.242 General Provisions: 1. The following provisions apply to the recognition and protection of GIs which originate in the territories of the Parties. 2. For the purposes of this Agreement, GIs are indications which identify a good as originating in the territory of a Party, 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. P R O T E C T I O N Art.10.21 Scope of Protection: 1. GIs shall be protected against: (a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; (b) the use of a GI identifying a good for a like good (56) not originating in the place indicated by the GI in question, even where the true origin of the good is indicated or the GI is used in translation or transcription or accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’ or the like; and (c) any other use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention. Art.244 System of Protection: 1. The Parties shall maintain or have established systems for the protection of GIs in their legislation, by the entry into force of this Agreement. 2. The legislation of the Parties shall contain elements such as: (a) a register listing protected GIs. (b) an administrative process of verification. (c) the registered name correspond to a specific product. (d) control provisions. (e) a right to use the protected name. (f) a procedure involving publication of the application that allows the legitimate interests of prior users of names, whether those names are protected as a form of intellectual property or not, to be taken into account. 274 Even in the exception to protection, the European Union is providing more flexibility in its TTIP proposal. It is accepting prior-use for products legally marketed in a continuous manner and accepting the coexistence between GIs with plant varieties or animal breed names. It is also accepting treatment of compound names and translations in relation to genericness accepting preexisting rights. It is finally willing to achieve an agreement offering ad hoc solutions for other possible conflicts.1149 One of the most controversial issues is the potential degeneration of GIs into generic terms; therefore, this extension must be studied and compared along with the exception in Article 24(6) of the TRIPS Agreement, which specifically refers to wines and spirits.1150 Techniques to prevent GIs from becoming generic names are proposed, such as a legal prohibition similar to Article 4 of the Madrid Agreement, a defense of goods avoiding deceptive or misleading competition similar to Article 23(1) of the TRIPS Agreement, and a prohibition of registration when a trademark is mainly geographically descriptive.1151 Consequently, the evolution of the European Union accepting case by case analysis and existing rights facilitates negotiation upon the basis set on the CETA Agreement. In KOREU, the protection of a GI was granted, without prejudice, to the continued use of a trademark existing before the date of the application for protection or recognition of the GI but provided that no ground for the trademark invalidity or revocation existed in the legislation of the party concerned.1152 The drafting of the EU-Central America Asssociation Agreement protected existing and continuous similar uses in good 1149 EU GI Proposal in TTIP at 1&2. 1150 Conrad, supra note 261, at 38. 1151 Id. at 39. 1152 EU-South Korea Free Trade Agreement, Art. 10.21.5. 275 faith.1153 The new consensus reached within CETA provides a satisfactory solution for the two previously confronted models. Among the solutions proposed are. (i) transitionals periods for meats and cheeses;1154 (ii) the maintenance of prior trademarks rights in good faith; 1155 (ii) the use of translated and common names identical to GIs;1156 (iii) the right to use a person’s name, and (iv) to register in Canada a trademark that would not mislead the public as to the geographical origin of the goods.1157 With CETA, the European Union is willing to accept the status quo of certain product trademarks and therefore respect local interests facilitating the overall acceptance of the concept of GIs and the feasibility of developing its food quality model. A comparative analysis of CETA, previous agreements, and the European Union’s TTIP proposal demonstrate progress and, with the acceptance of Canada, some of the proposed solutions may be discussed with the United States. In case of agreement, GIs may expand regionally in the NAFTA area since Mexico already has a complete system in force regulating sui generis GIs.1158 Long references to complex and prohibitive measures and remedies have been changed in the European Union’s TTIP proposal for enforcement. Now, it requests legal means and administrative actions to prevent non-authorized use of products not originating in the place of origin or not in line with the technical specifications.1159 Previously, CETA included a very detailed administrative action 1153 EU-Central America Asssociation, Art. 245.4. 1154 CETA Agreement at Art. 20.21.3&4. 1155 Id. at Art. 20.21.5. 1156 Id. at Art. 20.21.7. 1157 Id. at Art. 20.21.10&11. 1158 Reglamento de la Ley de la Propiedad Industrial (texto refundido publicado en el DOF el 10 de junio de 2011) (2011) 1159 EU GI Proposal in TTIP at 2. 276 to prohibit misleading and deceptive actions,1160 together with border measures1161 and other remedies.1162 KOREU extended the enforcement to provisional and precautionary measures,1163 injunctions,1164 and even criminal enforcement of GIs and design counterfeiting.1165 1160 CETA Agreement at Art. 20.19.4. 1161 Id. at Art. 20.43. 1162 Id. at Art. 20.48. 1163 EU-South Korea Free Trade Agreement, Art. 10.46. 1164 Id. at Art. 10.48. 1165 Id. at Art. 10.55. 277 Table 5: Comparative Regulatory Analysis on GIs: Exceptions and Enforcement (I) EU-US TRANSATLANTIC TRADE AGREEMENT EU-CANADA COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT Negotiations Negotiations Closed - 2014 Legal Review Completed - 2016 Signed - 2016 and In Force - 2017 (expected) Proposal (Mar. 2016) Chap. 20 IPR and Annexes 20 A, B and C E X C E P T I O N S T O P R O T E C T I O N Prior-use: transitional period up to [X] years for products legally marketed in continuous manner for at least [Y] year. Treatment of compound names and translations in relation to genericness: in the case of a translation of a GI identical with or containing within it a common name for a given product, or a GI not identical with but containing within it such a term, the GI protection does not prejudice the right of any person to use that term in association with that product. Coexistence between GIs and plant varieties / animal breeds' names. Ad hoc solutions for other possible conflicts. Art.20.21. Exceptions: 3. GIs shall not prevent the use with regard to products in the class of "fresh, frozen and processed meats" for at least five years preceding the date of 18 October 2013, with a transitional period of five years. 4. GIs shall not prevent the use with regard to products in the classes of "dry-cured meats" and "cheeses", respectively, for at least ten years preceding the date of 18 October 2013, with a transitional perood of five years. 5. Maintenance of prior trademarks rights in good faith on the date of signing of this Agreement. 7. Right to used translated and common names identical to GIs 8. Coexistence between GIs and plant varieties / animal breeds' names. 10-11. Right of any person to use person´s name, or to register in Canada a trademark that would not mislead the public as to the geographical origin of the goods. E N F O R C E M E N T Reference to legal means/administrative actions to prevent non authorized use, in relation to products not originating in the place of origin or not in line with the technical specifications. Art.20.19: 4. Enforcement by administrative action to prohibit a person from manufacturing, preparing, packaging, labelling, selling or importing or advertising a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its origin. 5. Each Party will provide for administrative action in respect of complaints related to the labelling of products, including their presentation, in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding their origin. Art.20.43. Border Measures and Art.20.48. Remedies:Each Party shall provide that its competent authorities have the authority to order the destruction of goods that the goods are infringing (...). 278 Table 6: Comparative Regulatory Analysis on GIs: Exceptions and Enforcement (II) EU-SOUTH KOREA FREE TRADE AGREEMENT EU-CENTRAL AMERICA ASSOCIATION AGREEMENT Signed - 2010 Provisional Application - 2011 In Force - 2015 Signed in 2012 Provisional Application 2013 Chap. 10 IPR and Annexs 10 A and B Part IV Trade- Tit.VI IPR and Anexxes 17 A&B E X C E P T I O N S T O P R O T E C T I O N 10.21: 5. The protection of a GI under this Article is without prejudice to the continued use of a trademark before the date of the application for protection or recognition of the GI, provided that no grounds for the trademarks invalidity or revocation exist in the legislation of the Party concerned. Art 245 Established GIs: 4 For GIs other than wines and spirit drinks, nothing in this Agreement shall be construed to require a Party to prevent continued and similar use of a particular GI of the other Party in connection with goods or services by any of its nationals or domiciliaries who have used that GI in good faith and in a continuous manner with regard to the same or related goods or services, in the territory of that Party before the date of entry into force of this Agreement. E N F O R C E M E N T Art.10.22 Enforcement of Protection: The Parties shall enforce the protection provided for in Articles 10.18 through 10.23 on their own initiative by appropriate intervention of their authorities. They shall also enforce such protection at the request of an interested party. Section C Enforcement of intellectual property rights. Art.10.46: Provisional and Precautionary Measures. Art.10.48: Injunctions. Art.10.55: Criminal Enforcement on GIs and designs counterfeiting. Art.250 Dispute Settlement: No Party shall have any recourse to challenge the final decision issued by a national or regional competent authority regarding the registration or protection of a GI, under Title X (Dispute Settlement) of Part IV of this Agreement. Any claim against the protection of a GI shall be conducted under the available judicial instances established under each Party’s domestic or regional legislation. 285 Table 10: Comparative Regulatory Analysis on GIs: Generic Names (II) EU-SOUTH KOREA FREE TRADE AGREEMENT EU-CENTRAL AMERICA ASSOCIATION AGREEMENT Signed - 2010 Provisional Application - 2011 In Force - 2015 Signed in 2012 Provisional Application 2013 Chap. 10 IPR and Annexs 10 A and B Part IV Trade- Tit.VI IPR and Anexxes 17 A&B G E N E R I C N A M E S Art.10.21: 2. This Agreement shall in no way prejudice the right of any person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business, except where such name is used in such a manner as to mislead consumers. Art 245: 2. A GI which has been granted protection in one of the Parties, cannot, in that Party, be deemed to have become generic, as long as it is protected as a GI in the Party of origin. 3. Where a GI contains within it a name which is considered generic in a Party, the use of that generic name on the appropriate good in that Party shall not be considered to be contrary to this Article. 4. For GIs other than wines and spirit drinks, nothing in this Agreement shall be construed to require a Party to prevent continued and similar use of a particular GI of the other Party in connection with goods or services by any of its nationals or domiciliaries who have used that GI in good faith and in a continuous manner with regard to the same or related goods or services, in the territory of that Party before the date of entry into force of this Agreement. M I S L E A D I N G N A M E S Art.10.21: (a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; (b) the use of a GI identifying a good for a like good (56) not originating in the place indicated by the GI in question, even where the true origin of the good is indicated or the GI is used in translation or transcription or accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’ or the like; and (c) any other use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention. Footnote 56:For all goods, the term ‘like good’ shall be interpreted in line with Article 23.1 of the TRIPS Agreement relating to the use of a GI identifying wines for wines not originating in the place indicated by the GI in question or identifying spirits for spirits not originating in the place indicated by the GI in question. Art.246 Protection Granted: 1. Protected GIs shall as a minimum be protected against: (a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; (b) the use of a protected GI for the same products that are not originating from the designated place of the GI in question even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as ‘style’, ‘type’, ‘imitation’, ‘like’ or similar; (c) any other practice that misleads the consumer as to the true origin of the product or any other use that constitutes an act of unfair competition in the manner set forth in Article 10 bis of the Paris Convention. 286 Examination, opposition, and cancellation of GIs are administrative processes required for approval and registration of GIs they need clearer international regulation and harmonized standards. The European Union requests transparent GI administrative processes under TTIP and a clear ground for opposition to be assessed. Of particular concern are conflicts with names of plant varieties and animal breeds; wholly or partially homonymous names; well-known trademarks, commercial names that have been legally on the market for a certain number of years, and generic names.1181 While the life of GI protection is indefinite—there is no need to apply for renewal every ten years, as is the case for trademarks—there exists an obligation of use. Nonetheless, cancellation of GIs is possible in the originating territory if compliance with specifications are not ensured or if no product is placed on the market for a certain number of years.1182 Consequently, GI owners must communicate whether a GI is no longer protected protected or if it falls into disuse in the place of origin.1183 As it stated in the EU-Central America Association Agreement, the Parties shall maintain the legal means for any natural or legal person having a legitimate interest, to request the cancelation or invalidation of a trademark or a GI giving reasons for such request.1184 Effective, transparent, and practical administrative processes— together with a proper system of remedies, monitoring, and control of registered cerfication GIs—seems to be fundamental to ensure compliance, validity, and use. 1181 EU GI Proposal in TTIP at 2. 1182 Id. 1183 Id. 1184 EU-Central America Association Agreement, Art. 248.3. 287 Table 11: Comparative Regulatory Analysis on GIs: Examination (I) EU-US TRANSATLANTIC TRADE AGREEMENT EU-CANADA COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT Negotiations Negotiations Closed - 2014 Legal Review Completed - 2016 Signed - 2016 and In Force - 2017 (expected) Proposal (Mar. 2016) Chap. 20 IPR and Annexes 20 A, B and C E X A M I N A T I O N A N D O P P O S I T I O N Examination of GIs of the other Party, on the basis of transparent administrative processes. Opposition procedure on the basis of an established set of grounds for opposition, to be assessed by each Party in relation to its territory, and namely conflicts with: names of plant varieties and animal breeds; wholly or partially homonymous names; well-known trademarks, commercial names that have been legally on the market for at least [X] years and generic names. Art.20.21. Exceptions: 9. Request in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Party or after the date of registration of the trademark. C A N C E L L A T I O N Cancellation of GIs is possible in the originating territory if compliance with specification not ensured or if no product is placed on the market for at least X years Obligations for the parties to communicate GI that ceased to be protected in its place of origin or fall into disuse in the place of origin. 20.19: 7. There shall be no obligation under this Subsection to protect GIs which are not or cease to be protected in their place of origin, or which have fallen into disuse in that place. If a GI of a Party listed in Annex 20-A ceases to be protected in its place of origin or falls into disuse in that place, that Party shall notify the other Party and request cancellation. 288 Table 12: Comparative Regulatory Analysis on GIs: Examination (II) Finally, attention must be given to the specifically selected GIs that are short listed and included in each one of the trade agreements negoatiated by the European Union. The European Commission established GI short lists, in coordination with Member States, by taking into EU-SOUTH KOREA FREE TRADE AGREEMENT EU-CENTRAL AMERICA ASSOCIATION AGREEMENT Signed - 2010 Provisional Application - 2011 In Force - 2015 Signed in 2012 Provisional Application 2013 Chap. 10 IPR and Annexs 10 A and B Part IV Trade- Tit.VI IPR and Anexxes 17 A&B E X A M I N A T I O N A N D O P P O S I T I O N Art.10.24 (footnote 57): If a proposal is made by: (a) Korea for an originating product falling into the scope of the legislation of the European Union set out under Article 10.18.2 and footnotes of Article 10.19; or (b) the European Union for an originating product falling into the scope of the legislation of Korea set out under Article 10.18.1 and footnotes of Article 10.19, to add a name of origin to this Agreement which has been recognised by either Party as a GI within the meaning of Article 22.1 of the TRIPS Agreement through laws of either Party other than those referred to in Articles 10.18.1 and 10.18.2 and footnotes of Article 10.19, the Parties agree to examine whether the GI can be added to this Agreement pursuant to this Sub-section. Art.245 Established GIs: By the entry into force of this Agreement, the Parties shall:(35) (a) have finalised the opposition and examination procedures, at least with respect to those GI applications listed in Annex XVII (List of Names to be Applied for Protection as GIs in the Territory of the Parties) that were not opposed or for which any opposition was rejected due to formal reasons in the course of national registration proceedings; (b) have initiated the procedures for protecting the GIs listed in Annex XVII and the time periods for submitting oppositions have expired, with respect to those GI applications listed in Annex XVII that were opposed, and the oppositions were found to be prima facie meritorious in the course of national registration proceedings; (c) protect the GIs that have been granted protection as such, according to the level of protection established in this Agreement. 2. The Association Council at its first meeting shall adopt a decision including in Annex XVIII all names from Annex XVII that have been protected as Gis. Footnote 35. The obligations are fulfilled when (a) the administrative decision rejects the registration of the name; or (b) the administrative decision is challenged under the instances established under domestic legislation. C A N C E L L A T I O N Art.10.25 Working Group on Gis: 3. The Working Group may decide: (b) to modify (58) the Annexes referred to in subparagraph (a) to remove individual Gis that cease to be protected in the Party of origin (59) or that, in accordance with the applicable legislation, no longer meet the conditions to be considered a Gi in the other Party; Footnotes 58 and 59: Refer the sole responsibility of the Party where a GI originates. Art.248: 3. The Parties shall maintain the legal means for any natural or legal person having a legitimate interest, to request the cancelation or invalidation of a trademark or a GI giving reasons for such request. 289 account objective criteria and economic relevance.1185 There are sixty EU GIs but only one GI for a South Korean spirit;1186 the European Union has 219 GIs compared to only ten local GIs in Central America;1187 while the European Union boasts 172 GIs versus Canada does not have a single GI;1188 and, finally, there are 201 EU foodstuff GIs—including seventy-seven cheeses— seventeen EU GIs for wine and twenty-two for spirit drinks are to be negotiated under TTIP.1189 Cheese-related GIs are the main concern in the United States1190 but the relevance of GI for a variety of products should not be hindered just because of dairy prdocuts. Consequently, solutions are to be found studying each conflict of trademarks and GIS on an individual basis. Trade agreements currently establish institutionalized bodies to amend GI lists by adding new GIs or by removing GIs that have ceased to be protected in the place of origin. Joint Committees,1191 Working Groups, or even the Association Council, together with specific clauses on the addition of new GIs, are established to ensure developments on the agreements and announce the potential for the protection of agricultural quality products in the future. 1185 EUROPEAN COMMISSION, supra note 1026, at 9. 1186 EU-South Korea Free Trade Agreement, Annexes 10-A Part A & B. 1187 EU-Central America Association Agreement, Annexes 17 Part A & B. 1188 CETA Agreement, Annexes 20-A Part A & B. 1189 EU Proposal in TTIP. 1190 See Consortium for Common Food Names, supra note 52. 1191 CETA Agreement (Art. 20.22) and EU Proposal in TTIP, EU-South Korea Free Trade Agreement (Art. 10.24 and Art. 10.25), EU-Central America Association Agreement (Art. 247). 290 Table 13: Comparative Regulatory Analysis on GIs: List of GIs (I) EU-US TRANSATLANTIC TRADE AGREEMENT EU-CANADA COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT Negotiations Negotiations Closed - 2014 Legal Review Completed - 2016 Signed - 2016 and In Force - 2017 (expected) Proposal (Mar. 2016) Chap. 20 IPR and Annexes 20 A, B and C L I S T O F G I S Annex I.- EU Gis. 201 EU GIs, 77 Cheeses; 6 AT, 2 BE, 1 CY, 6 CZ, 20 DE, 2 DK, 25 ES, 41 FR, 20 GR, 1 HU, 2 IE, 41 IT, 4 NL, 3 PL, 18 PT, 1 RO, 1 SE, 7 KU. 17 European GIs for wine and 22 for Spirit Drinks Annex 20-A Part A: 172 EU GIS, 58 cheeses, 2 CZ, 14 DE, 1 DK, 16 GR, 1 CY, 27 ES, 42 FR, 41 IT, 2 HU, 3 AT, 20 PT, 2 NL, 1 SE, 1 RO. Annex 20-A Part B: No Canadian Gis included in Annex 20-A Part B. Annex 20-B Part A: Valencia Orange Orange Valencia Valencia; Black Forest Ham Jambon Foret Noire; Tiroler Bacon Bacon Tiroler (The use of spelling variations in English or French shall be permitted, including "Tyrol", "Tiroler", "Tyroler", and "Tirolien"); Parmesan; Bavarian Beer Bie_re Bavaroise; Munich Beer Biere Munich; St. George Cheese Fromage St-George[s]. Annex 20-B Part B: The term "comté" in association with food products when used to refer to a county (for example "Comté du Prince-Edouard"; "Prince Edward County"; "Comté de Prescott- Russell"; "Prescott- Russell County"). The term “Beaufort” in association with cheese products, produced in the proximity of the geographical place called "Beaufort range", Vancouver Island, British Columbia. N E W G I S Parties may decide by consensus in the context of a specific Committee under the Agreement to amend GI lists by adding new GIs or by removing GIs which have ceased to be protected in the place of origin Criteria and procedure: same criteria and same procedure as per GI in the initial list. Art.20.22 Ammendments: 1. The CETA Joint Committee, acting by consensus and on a recommendation by the CETA Committee on GIs, may decide to amend Annex 20-A by adding or removing GIs. 2. A GI shall not be added if it is a name listed in the relevant Register of the European Union with a status of "Registered", in respect of a Member State of the European Union. 3. A GI identifying a product originating in a particular Party shall not be added to Annex 20-A: (a) if it is identical to a trademark that has been registered in the other Party in respect of the same or similar products, or to a trademark in respect of which in the other Party rights have been acquired through use in good faith and an application has been filed in respect of the same or similar products; (b) if it is identical to the customary name of a plant variety or an animal breed existing in the other Party; or (c) if it is identical with the term customary in common language as the common name for such product in the other Party. 291 Table 14: Comparative Regulatory Analysis on GIs: List of GIs (II) EU-SOUTH KOREA FREE TRADE AGREEMENT EU-CENTRAL AMERICA ASSOCIATION AGREEMENT Signed - 2010 Provisional Application - 2011 In Force - 2015 Signed in 2012 Provisional Application 2013 Chap. 10 IPR and Annexs 10 A and B Part IV Trade- Tit.VI IPR and Anexxes 17 A&B L I S T O F G I S Annex 10-A Part A: 60 EU GIS, 19 cheeses, 2 AT, 5 CZ, 12 FR, 2 DE, 3 GR, 1 HU, 16 IT, 1 PT, 18 ES. Annex 10-A Part B: 64 South Korean GIS. Annex 10-B Part A Sect. 1 and 2: 80 EU Wine GI, 21 FR, 4 DE, 2 GR, 1 HU, 21 IT, 7 PT, 2 RO, 1 SK, 21 ES and 25 EU Spirits Gis. Annex 10-A Part B: 1 SouthKorean Spirit GI. Annex 17 Part A: 219 EU GIS, 27 cheeses, 5 CZ, 3 DK, 12 DE, 2 IE, 14 GR, 53 ES, 43 FR, 44 IT, 5 CY, 1 LT, 4 HU, 3 AT, 3 PL, 14 PT, 8 RO, 1 SK, 2 FI, 2 SE, 1 GB. Annex 17 Part B: 10 CA GIS, 5 coffees, 1 cheese, 1 CR, 2 SV, 2 GT, 2 HN, 2 NI, 1 PA. N E W G I S Art.10.24 Addition of GIs: 1. The European Union and Korea agree to add GIs to be protected to the Annexes 10-A and 10-B in accordance with the procedure set out in Article 10.25. 2. The European Union and Korea agree to process, without undue delay, the other’s requests for adding GIs to be protected to the Annexes. 3. A name may not be registered as a GI where it conflicts with the name of a plant variety, including a grape variety, or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product. Art.20.25: 1. The Working Group on GIs established pursuant to Article 15.3.1 (Working Groups) shall meet, as mutually agreed or upon request of a Party, for the purpose of intensifying cooperation between the Parties and dialogue on GIs. The Working Group may make recommendations and adopt decisions by consensus. 2. The location of the meeting shall alternate between the Parties. The Working Group shall meet at a time and a place and in a manner which may include by videoconference, mutually determined by the Parties, but no later than 90 days after the request. Art.247: 1. The Parties agree on the possibility of adding additional GIs for wines, spirits, agricultural products and foodstuffs to be protected on the basis of the rules and procedures established in this Title, as applicable. Such GIs, following their successful examination by the competent national or regional authorities, shall be included in Annex XVIII (Protected GIs) in accordance with the relevant rules and procedures for the Association Council. 2. The date of application for protection shall be the date of the transmission of a request to the other Party to protect a GI provided that the formal requirements for such applications are fulfilled. 292 6. CONCLUSIONS International Conventions and the TRIPS Agreement have been more ambitious and efficacious in language and purpose than in accomplishment. Their application has often floundered on the hard facts of nationalism and local legislation.1192 The position of the United States is unsustainable and unreasonable since the world is increasingly recognizing the value provided by GIs while developed and developing countries benefit from strong bilateral and multilateral protections.1193 And the European Union’s intent to link GIs to “terroir,” as the cornerstone of GIs, requires a new global vision and further improvements considering the interest of developing countries on the potential of GIs.1194 Trade agreements on GIs are not sufficient. A proper regulatory framework should be both included in TTIP and a revised TRIPS Agreement. Otherwise, impairment of benefits, the denial of access market, and other negative impacts will derive into compensation considering existing TRIPS and NAFTA rules.1195 This dissertation analyzes the GI concept and existing regulatory framework considering both the IPR tradition in the United States and the European Union developments through trade agreements. After examining the Belizean production of bananas, there is a clear need to include the dimensions of certification, registration, and local impact in any analysis and recognize GI protection as a fundamental tool for developing countries. 1192 Mock, supra note 262, at 4. 1193 Waggoner, supra note 237. 1194 See DEVELOPING GEOGRAPHICAL INDICATIONS IN THE SOUTH, supra note 64. 1195 CRINA VIJU, MAY T. YEUNG & WILLIAM A. KERR, GEOGRAPHICAL INDICATIONS, BARRIERS TO MARKET ACCESS AND PREFERENTIAL TRADE AGREEMENTS (2012). 293 There are sufficient international legal grounds to build on a common system of protection under the concept of Certification GIs considering the needs of a global register together with fair trade rules and the contribution to local development. This concept brings together the main features of GIs and certification trademarks, providing not just uniqueness and specific quality features but also a fair system of production. Furthermore, the recognition of valuable agricultural assets linked to the place of origin must ensure sustainability and a clear geographical, environmental, economic, social and cultural impact. Duly certified and registered indications which identify a good as originating in the territory of a Member (of the WTO), 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 while being produced under fair trade rules and contributing to economic, social and cultural local development. EU-CETA and EU-KOREU experiences, added to the United States Trans-Pacific Partnership (TPP), and previous trade agreements subscribed by the European Union with Mexico and Central America, among many others, provide proper solutions to the main concerns on GIs. The main objectives for the European Union in the field of GIs may be achieved under TTIP and a revision of the TRIPS Agreement. 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REV. 29 (1910), reprinted in 62 TRADEMARK REP. 239, 250 (1972). ———, Some Suggestions Concerning the International Trade Mark Situation, 36 YALE L.J. 235 (1926). ———, Some Suggestions to Publishers about Trade-Marks, 36 TRADEMARK REP. 131 (1946). ———, The Expensive Futility of the United States Trade-Mark Statute, 12 MICH. L. REV. 660 (1914). ———, The Inter-American Convention, 26 BULL. U.S. TRADE-MARK ASS’N 169 (1931). ———, The Lanham Act and the Social Function of Trade-Marks, 14 LAW & CONTEMP. PROBS. 173 (1949). ———, The Proposal for Scientific Copyright, with the Literary Parallel, 7 J. COMP. LEGIS. & INT’L L. 69 (1925). ———, The Social Value of Trade-Marks and Brands, 37 TRADEMARK REP. 249 (1947). ———, The Unwary Purchaser: A Study in the Psychology of Trade Mark Infringement, 8 MICH. L. REV. 613 (1910). ———, Unfair Competition, 17 MICH. L. REV. 490 (1919). 317 2. BOOKS, REPORTS, & POLICY PAPERS 2.1. BOOKS & REPORTS ARFINI, FILIPPO ET AL., PRODOTTI TIPICI E DENOMINAZIONI GEOGRAFICHE. STRUMENTI DI TUTELA E VALORIZZAZIONE [TYPICAL PRODUCT AND GEOGRAPHICAL APPELLATION. TOOL FOR PROTECTION AND ENHANCEMENT] (Rome, Italy: Edizioni Tellus 2010). AUDIER, JACQUES, GEOGRAPHICAL INDICATIONS (Luxembourg: Publications Office of the European Union 2000). AUGUSTIN-JEAN, LOUIS ET AL., GEOGRAPHICAL INDICATIONS AND INTERNATIONAL AGRICULTURAL TRADE: THE CHALLENGE FOR ASIA (London, United Kingdom: Palgrave Macmillan 2012). BAGAL, MONIQUE NGO & VITTORI, MASSIMO, PRACTICAL MANUAL ON GEOGRAPHICAL INDICATIONS FOR ACP COUNTRIES (Geneva, Switzerland: CTA & Origin 2011). BARHAM, ELIZABETH & SYLVANDER, BERTIL EDS., LABELS OF ORIGIN FOR FOOD: LOCAL DEVELOPMENT, GLOBAL RECOGNITION (Cambridge, Massachusetts: COB International 2011). BARJOLLE, DOMINIQUE ET AL., LE LIEN AU TERROIR. BILAN DES TRAVAUX DE RECHERCHE [THE PLACE IN THE TERRITORY. BALANCE OF RESEARCH WORK] (Laussane, Switzerland: Institut d’Économie Rurale 1998). BARJOLLE, DOMINIQUE & VANDECANDELAERE, EMILIE, IDENTIFICATION OF ORIGIN-LINKED PRODUCTS AND THEIR POTENTIAL FOR DEVELOPMENT. A METHODOLOGY FOR PARTICIPATORY INVENTORIES (Rome, Italy: FAO 2012), http://www.fao.org/fileadmin/templates/olq/files/MethodologyEN_01.pdf (last visited Jul 28, 2016). BARJOLLE, DOMINIQUE & SYLVANDER, BERTIL, PDO AND PGI PRODUCTS: MARKET, SUPPLYCHAINS AND INSTITUTIONS. PROTECTED DESIGNATIONS OF ORIGIN AND PROTECTED GEOGRAPHICAL INDICATIONS IN EUROPE: REGULATION OR POLICY? (OriGIn 2000), http://www.origin-food.org/pdf/pdo-pgi.pdf. BÉRARD, LAURENCE & MARCHENAY, PHILIPPE, PRODUITS DE TERROIR: COMPRENDRE ET AGIR [PRODUCT FROM THE TERRITORY: UNDERSTAND AND ACT] (Bourg-en-Bresse, France: CNRS 2007). BÉRARD, LAURENCE & MARCHENAY, PHILIPPE & CENTRE NATIONAL DE LA RECHERCHE SCIENTIFIQUE (FRANCE), FROM LOCALIZED PRODUCTS TO GEOGRAPHICAL INDICATIONS. AWARENESS AND ACTION (Bourg-en-Bresse, France: CNRS 2008). [Document text truncated for crawler view.]