Trademark Protection | Geographic Indicators

Is bologna bologna if it's not from Bologna?

Often overshadowed because of its legal complexity and diffuse nature, geographical indicators are just as divisive in international trade agreements as larger and more publicized issues. In the future, disagreements over these designations could derail trade agreements between the US and EU just as much as current frictions over such issues as hormone treated beef and genetically modified foods and agricultural subsidies.

A geographical indicator (GI) is a form of intellectual property designation under the rules of the World Trade Organization on Trade-Related Aspects of International Property Rights (TRIPs) agreement negotiated in 1994. Place names such as Cheddar or Champagne, Feta or Parma ham, and the protection of brands they signify, are at the core of this issue. The TRIPs agreement defines GIs as “indications, which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to their geographic origin.” These GIs are significant due to their alleged importance in identifying to consumers the characteristics of the goods or services attributable to their geographic region.

Parmesan, Burgundy, Chablis, Bologna, and Feta are a few such names whose usage some EU countries would like to see terminated outside the country or region from which the product originates. The feeling is that those names signify specific brands belonging to specific regions in their countries. For those raised on Oscar Mayer bologna in their school sack lunches, it may be strange to think that this designation signifies a geographical indication. Bologna is a generic description of meat in the US, but in Europe, those GIs tend to signify products from regions that uphold a specific quality.

The longstanding dispute over these designations has been directed mainly at the US of late, as farmers and producers in Europe feel their brands and GIs have been effectively stolen. Currently there is limited protection for GIs under the current TRIPs agreement, and it had been hoped that agreement could be reached on the negotiation of stronger protections of these place names under the Doha Round of the WTO free-trade negotiations. Unfortunately, the WTO talks in Cancun this past September broke down and GIs (along with most other issues) were never touched. What many producers who have products balancing on the GIs tightrope would like to see is an international registry of names that would be presumed protected in all countries adhering to the TRIPs agreement.

In the late summer, Jon Dudas, the deputy director of the U.S. Patent and Trademark Office testified before the House of Representatives Agricultural Committee, saying that the EU was advancing a protection framework that would deprive U.S. consumers of existing TRIPs related benefits by extending protection to the products mentioned above, as well as wanting to establish a short list of these well-known European names that have already been branded generically in many other countries. Under US trademark law, products such as “Stilton” and “Roquefort” cheese are already protected. While these names may have become generic in the US, they have increasingly become associated with regional and geographic locations in Europe, and those producers would like to protect their brands.

“The EU's position is clear,” says Alexander Somek, visiting European professor at the University of Iowa School of Law. “Without GIs most European products would suffer from a tremendous devaluation, for it is the high product standards as well as regional originality that gives European products an advantage.”

The European Commission position states that it would like to establish a multilateral register for geographical indications. Secondly, it wants the extension of additional GI protection to ensure that not only wines and spirits but also products like cheese, rice and tea can enjoy the benefit of not being copied by producers from other countries. Third, they would like to ensure market access for EU GI products by asking WTO members, for a selected group of GIs, to remove prior trademarks and, if necessary, grant protection for EU GIs that were previously used or have become generic so that their GI products can gain market access. The US also has GIs, for example Florida oranges, Idaho potatoes, Napa wine, and Washington State apples. However it is at a historical disadvantage, mainly because it does not have long traditional place name products such as have developed in Europe.

”If the EU is successful,” said Dudas during his testimony before the Agricultural Committee, “use of generic terms, which could include Feta and Gorgonzola for cheese, and Port and Sherry for wine terms now considered generic in many WTO member nations and not just in the US, would be prohibited in the US and in all of our export markets.”

In the future we will likely see more bilateral agreements made on GIs instead of far-reaching and trade-liberalizing block agreements hammered out in the WTO. As with many other trade issues, this seems to be in vogue as of late. The largest issues are too divisive and political; too many interests are at stake on a multitude of sides, to be hammered out in five-day meetings once a year. Whether the US and EU do hammer out a list of protected and excluded items bilaterally or attempt to gain leverage through filing formal disagreements with the WTO, remains to be seen. For Somek this is nothing new.

“This would be trade dispute as usual,” said Somek. “Indeed, I think that such disputes have become fairly commonplace between the two most powerful and vibrant economies on this globe.”

So, if you thought your bologna had a first name, like the old Oscar Mayer song goes, soon it may not. In the future, children may have to sing: “My processed meat product formerly known as Bologna has a first name, it’s O-S-C-A-R…”

Is it still a bunch of baloney? You bet.

[10-Nov-2003]

Michael Standaert currently resides in Illinois.


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