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Looking for the ‘sweet spot’ on geographical indications

Errico Auricchio

Errico Auricchio is founder and president of BelGioioso Cheese, Green Bay, Wisconsin, and chairman of the Consortium for Common Food Names. He contributes this column exclusively for Cheese Market News®.

As chairman of the Consortium for Common Food Names, I sincerely hope the United States and European Union (EU) can find common ground on the issue of protecting proprietary names of cheeses and other foods, which at the same time must include protection of generic names in public use for generations, such as “feta” and “parmesan.” The EU’s position on geographical indications (GIs) is a major stumbling block in the current negotiations between the United States and EU on the Trans-Atlantic Trade and Investment Partnership trade agreement, as well as in other international forums. But I don’t believe it has to be so.

Last summer U.S. Secretary of Agriculture Tom Vilsack told the Europeans he hoped all parties involved could find a “sweet spot” on the issue, examining in particular the interplay of the U.S. trademark system and GIs.

The U.S. position is that our trademark system is robust enough to protect European products, and in fact it already does. U.S. Trade Representative Michael Froman recently stated his belief that the system “works for Europe and the rest of the world,” adding that “There are 18 trademarks for Parmigiano Reggiano in the U.S., and Europe sells hundreds of millions of dollars of cheese in the United States … We can have a system where countries can take into account common names and trademarks before they grant any geographical indications.”

In my view, the crux of the issue is this: Unlike U.S. trademark law, the EU does not follow consistent, equitable rules in how it establishes GIs. The main point of contention is not the existence of GIs, but the lack of consistency and fairness in how they are created and protected.

Essentially, a GI is a type of trademark. It entitles the holder to exclusive use of a name. Like our trademark system in the United States, GI applicants should be held to certain criteria, namely:

1) A protected name should not infringe on the ability of others to use generic terms that are in the public domain; and

2) Establishing a protected name should not create confusion to consumers in the marketplace, but rather should provide clarity by distinguishing the product from others. In return for meeting these and other criteria standard in trademark law, the holder gains the privilege of exclusive use to a name or term.
But for the EU to state unilaterally that only small, discrete regions of the world can use common names like “asiago”, “feta” or “parmesan” clearly infringes on others’ rights in the marketplace, and is clearly confusing to consumers. Consider that these cheeses have been sold in a variety of nations worldwide for decades. Parmesan has been made in the United States since about 1900, and much more parmesan is made outside the EU than within it!

Clearly, the GI “Parmigiano Reggiano” is identifiable as a name for a specialty Italian cheese. Both “Parmigiano Reggiano” and “parmesan” can and must co-exist in the global marketplace.

Beyond the potential for consumer confusion, the EU provides no clarity as to the extent of GI protections once they are introduced. Does the EU consider “provolone” a protected term or not? In Europe, it is not. A Codex Alimentarius standard exists attesting to the generic-ness of the term. Yet in Costa Rica the EU has argued that solely Italian producers should have the right to use that term, and the Costa Rican government appears to be swayed by this argument despite its commitments under the U.S.-Central America Free Trade Agreement.

This is just one small example — we could name many. This inconsistency is unacceptable; it creates slippery GIs that do not follow set rules.

Since the dawn of packaged foods, Americans have recognized that most foods they buy originate back to another part of the world. Not until recently has Europe attempted so strongly to prevent American, Argentine, Australian or other marketers from drawing on that heritage. But culture is not tied to a piece of land — culture is in the people. As people move, the culture moves. You cannot stop the spread of culture, and you cannot roll back markets once developed. As a business person, why would you want to?

I’m hopeful that food producers in the United States and EU will find a “sweet spot” in respect to proprietary and common names. But for progress to be made, the EU needs to establish GI policies that are based on consideration of the marketplace and consistent rules — qualities already present in U.S. trademark law.

CMN

The views expressed by CMN’s guest columnists are their own opinions and do not necessarily reflect those of Cheese Market News®.

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