1 Introduction

This chapter analyzes some of the topics on the current debate involving geographical indications (GIs) of origin that will be further elaborated by the contributors to this volume from a variety of perspectives and angles. As the title indicates, this volume focuses on GI protection “at the crossroads of trade, development, and culture,” with a specific focus on the countries in the Asia-Pacific region. This choice is due primarily to the fact that the analysis of issues related to GI protection in this region is, to date, not as extensive as the analysis in other regions, particularly in the Western world. This volume intends to fill this gap and aims, in particular, at analyzing the potential benefits, but also related problems, of GI protection for local and national development in Asia-Pacific countries. Trade- and culture-related issues, primarily issues related to the conservation and promotion of local culture and cultural diversity, are also central to the contributions to this volume. As the opening contribution of this volume, this chapter then aims at setting the stage and framing the context for other authors by offering an overview of the status of the GI debate, as well as emphasizing some of the trends that have become salient features of this debate in Asia-Pacific, and worldwide. These trends are, in particular, the following: the globalization of the GI debate beyond Western countries and beyond a “wine and cheese” agenda, or trade war, between primarily Western interests; the increased attention for the potential benefits of GI protection by developing countries and the often neglected attention to the potential problems associated with GI protection for local producers in these countries; and the increasing loosening of the definition of GIs as symbols of true geographical origin in favor of a definition granting exclusive rights based on the “historical reputation” of GIs.

Building on this premise, Section 2 starts by discussing how, after almost a century of limited attention at the international level, GIs have become one of the hottest topics in international intellectual property law today. Born out of the French tradition in the nineteenth century, and originally reserved to identify, and protect, the geographical origin of wines against counterfeits, GI protection was later accepted by other European countries and eventually by the European Union (EU). Then, from Europe, GIs become a global phenomenon and a topic of international controversy in the past two decades. In particular, GIs were one of the hot issues at the negotiating table that led to the creation of the World Trade Organization (WTO) in the late 1980s and early 1990s. Discussions over GIs continued to dominate part of the WTO Doha Development Agenda, even though WTO Members never reached any agreement on the issue.Footnote ¹ Still, despite the lack of consensus at the international level, an increasing number of countries became interested in GIs in the following years. This interest reached beyond Western countries. In particular, countries in Asia, Africa, and South America have adopted, to date, national policies on GIs and taken part in the discussion of the WTO Doha Development Agenda. In the past decade, provisions related to GI protection have also become an important component of bilateral and plurilateral international trade agreements (FTAs) between countries from all continents.Footnote ² To some extent, this is the result of the pressure exerted by the EU in its attempt to export a pro-GI protection agenda outside Europe. But many countries have become interested in GIs regardless of this pressure. In 2015, discussions over GI protection also led to the adoption of the Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Geneva Act) under the auspices of the World Intellectual Property Organization.Footnote ³ Even though the Geneva Act was, at large, the result of Western pro-GI diplomacy, it was supported by countries outside Europe.

Moving from the international to the national level, Section 3 first reports that several jurisdictions in Asia-Pacific have currently adopted national sui generis systems for GI protection. These national laws are largely modelled after the system currently adopted in the EU. Countries that have implemented sui generis systems include, to date, Japan, South Korea, Bangladesh, Sri Lanka, Australia, Cambodia, Malaysia, and Singapore.Footnote ⁴ Several countries in Asia-Pacific have also established, or are discussing the establishment of national GI registries to register both national and foreign GIs.Footnote ⁵ Countries that already operate national GI registries in Asia-Pacific include Cambodia, India, Indonesia, Malaysia, Thailand, Vietnam, and other countries.Footnote ⁶ Several of the contributors to this volume explain in detail the laws, including the national reforms, which have been adopted in these countries. Building on these descriptions, Section 3 focuses on the potential benefits of GIs for socioeconomic development as well as for safeguarding national cultural heritage in Asia-Pacific, and in general.Footnote ⁷ However, Section 3 highlights that GIs do not per se constitute a magic recipe, and that the long-term success of GI products depends largely on local producers controlling and maintaining the quality of the products, and developing savvy marketing plans. This point is reiterated by many of the contributors to this volume, and is probably the most important observation directed to GI producers, local and regional communities.

Section 4 tackles one of the most problematic aspects of the GI debate, namely the progressive loosening of the territorial linkage between GI products and GI regions in the definition of “geographical indications.” This section supports the point that, although this territorial linkage has never been an absolute linkage since the first appearance of national laws regulating the use of geographical names, the current trend seems to privilege a considerably looser definition of GIs with respect to the actual geographical origin of the products, their ingredients, and manufacturing process. Hence, the traditional basis for granting exclusive rights on GIs is precisely the territorial linkage between the GI products and the regions – the deep connection between the products and the land, the terroir as it is defined in the French tradition.Footnote ⁸ In particular, Section 4 specifically recounts that, in 1958, the text of the Lisbon AgreementFootnote ⁹ defined “appellations of origin” as signs identifying products “exclusively or essentially” originating from a certain geographical region. This definition was weakened with the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994, which defines GIs as “indications which identify a good as originating in the territory … where a given quality, reputation or other characteristic of the good is essentially [no longer exclusively] attributable to its geographical origin.”Footnote ¹⁰ The TRIPS definition finds its origin in the language of the EU Regulations on GIs that were adopted in 1992.Footnote ¹¹ In 2015, the trend of loosening the territorial linkage between the products’ name and their actual origin was confirmed in the revision of the Lisbon Agreement finalized in Geneva (Geneva Act of the Lisbon Agreement), as the Geneva Act adopted a definition of GIs (in addition to “appellations of origin”) that is identical to the definition in TRIPS.Footnote ¹²

Naturally, granting exclusive rights to the name of products’ locations facilitates the marketing of the products with famous geographical names in the global market – i.e., Champagne sparkling wine, Parmigiano Reggiano hard table cheese, Darjeeling tea, Kintamani coffee, or Kampot pepper. Yet, should this exclusivity be justified when the products do not entirely originate from the regions? Section 5 builds upon Section 4, and argues that when GIs do not identify products that are entirely local, GIs no longer fulfill the function for which they are legally protected – offering accurate information about products’ geographical origin to consumers and incentivizing local development. Instead, GIs become marketing tools to sell GI products with a competitive advantage – the GI name – on the international market. In this respect, GIs become tools that capitalize on the association between the names and the geographical locations even when this association is based simply on an historical reputation rather than on the accurate geographical origin of the products. To remedy this potential distortion, or misuse of GIs, Section 5 repeats a point that I made in my previous scholarships. In particular, this Section argues that GI protection should be limited only to the products that are entirely made in the GI-denominated regions.Footnote ¹³ Certainly, (re)creating the normative framework to implement such stricter interpretation of GIs in practice is a highly complex task that may require amending the current definition of GIs in TRIPS – which today protects products’ “reputation” as much as the products’ actual “geographical origin.” Still, while recognizing the challenges of amending the definition in TRIPS, this section also proposes a more workable alternative, which could restore “geographical accuracy” under the current international framework for GI protection. In particular, this section suggests that GI producers disclose directly in the GI specification, as well as on the packaging and the advertising materials related to the products, the origin of all the ingredients, raw materials, and manufacturing steps of the products that do not originate from the GI-denominated regions. To this extent, this section turns to the language of Article 22(2) of TRIPS, which already prohibits the use of GIs to mislead consumers as to the origin of the products, and this provision should also apply to GI producers.Footnote ¹⁴ To date, this provision has been interpreted primarily as prohibiting competitors from using GI names misleadingly. Yet, the provision could (and should) apply also to GI producers and be interpreted as requiring that GI producers disclose the actual geographical origin of the entirety of the ingredients and manufacturing steps of products. This section concludes that this interpretation of Article 22(2) would benefit not only consumers but also the producers of raw materials and product ingredients, whose localities would be directly recognized in the global marketplace and production chain.Footnote ¹⁵ This observation is of considerable relevance for developing countries, including in Asia-Pacific, as many products from these countries, including many GI products, are raw materials and agricultural products. These products are often sold to and used by foreign producers for their finished products, and rarely acknowledged in the packaging or advertising of the finished products.

2 The Global, and Fragmented, Discussion on Geographical Indications: From France to Europe, to the World

The discussion over GIs generally brings about images of European wines, beers, and cheeses, and with it the decade-long controversy over the names of these products between Europeans and New World producers, primarily producers of European immigrant origins. As other scholars and I have recounted in detail before, this controversy sees, on the one side, the struggle of the Europeans to prevent the New World from copying the geographical names of EU productsFootnote ¹⁶ – primarily wines and cheeses – based on the argument that the New World free rides on these names and generally produces subpar replicas compared to the original products. In the New World, this argument is met, on the other side, with fierce resistance and the counterargument that European producers are trying to monopolize names that have been used as generic terms for decades, if not centuries, in the New World by immigrants coming from Europe.Footnote ¹⁷ These two images certainly embody sharply different points of view over the GI debate. Yet, they also shed an important light over the historical origin of the GI controversy – one that is tackled, from different angles, by the contributions in this volume: namely, these images show how discussions about GIs, and the resulting controversy, were born and have long been dominated by Western interests, literally by a “wine and cheese war” between the Old and New Worlds.Footnote ¹⁸ Western interests were clearly at the basis, and at the negotiating table, when the GI provisions in TRIPS were discussed and finalized in the early 1990s, even as the EU was the main proponent of GI protection and New World Western countries were the main opponents. Hence, despite the lack of overall agreement on the issue, both worlds agree on enhanced protection for wines and spiritsFootnote ¹⁹ – since both (Western) worlds had, and have, important interests in wines and spirits, as the main producers and exporters of these products.Footnote ²⁰ To the contrary, both worlds could not find a common solution with respect to the protection of the names for cheeses primarily due to the resistance of national dairy industries. Several decades after the conclusion of TRIPS, the “cheese war” between Old and New Worlds still rages on.

In the past decades, however, discussions about GIs have expanded beyond the West and reached the attention of other continents and developing countries. Notably, many countries in Asia, Africa, Central America, and South America have expressed interest in GI protection and, as a result, have implemented or are considering implementing specific provisions to protect GIs, including registration-based sui generis systems.Footnote ²¹ In this respect, it should be noted that several famous GI-denominated products come today from non-Western countries – Darjeeling tea, Ceylon tea, Kampot pepper, Kobe beef, and Blue Mountain coffee are just a few examples of famous non-Western GI products. Contributors to this volume address in detail several of the national initiatives to protect GIs, particularly with respect to the Asia-Pacific region, and elaborate on the legislative history, and where possible the practical application, of these laws. Additional evidence of the increasing interests by non-Western countries in the GI debate is shown by the fact that discussions over GI protection are no longer just about “wine and cheese” or agricultural and food-related products – the latter also part of the GI agenda of Western countries. Instead, discussions on GI protection now encompass proposals for expanding protection beyond agricultural products, foodstuffs, wines, and spirits in those countries that still limit protection to these products.Footnote ²² Several countries in Asia-Pacific, for example, have long offered protection as GIs to handicrafts and artisanal products beyond agricultural products and food stuff, and have promoted the expansion of protectable subject matter to encompass these products internationally.Footnote ²³ Along the same lines, many non-Western pro-GI countries are promoting, along with Western pro-GI countries such as the EU, the adoption of the higher level of protection currently provided by TRIPS to wines and spirits for all GIs, again because this protection may better suit their national interests in international trade by offering the possibility to protect the names of their products also in the foreign countries where the products are exported and sold to.Footnote ²⁴

Still, even though discussions about GIs – more precisely discussions for and against GI protection – have certainly gone global today, it is important to remember that the modern system of GI protection originates from Europe and, more specifically, from the French laws protecting appellations of origin in the early twentieth century.Footnote ²⁵ Remembering this fact is relevant both to better understand the development of the international movements supporting GI protection and to identify solutions to limiting a possibly excessive expansion of GI protection beyond the economic and normative reasons that were originally at the basis of this protection.

In particular, the origin of GI protection can be traced back to the attempts to prevent fraud in the marketplace for wines in France following the dramatic destruction of French vineyards by a pandemic of phylloxera in the late 1800s. Due to the pest, the production of French wine considerably diminished,Footnote ²⁶ and this led to widespread counterfeits and adulterated products.Footnote ²⁷ To counter this, France enacted a wine labeling law in 1905 prohibiting the misuse of wine names.Footnote ²⁸ This law was revised in 1919,Footnote ²⁹ and later in 1935.Footnote ³⁰ Still, the adoption of the French laws in the early twentieth century was prompted primarily by the necessity to prevent unfair competition in the marketplace by unrelated parties using geographical names inaccurately while also securing the accuracy of the information about products’ geographical origin for consumers.

To justify the protection of geographical names, however, the French laws enshrined into the normative framework of protection the notion that location, and more precisely the terroir – a deep connection between the products and the land, as mentioned in the Introduction – where the vine was grown and the wines were made, was a “key ingredient in differentiating between wines by indicating a distinct origin.”Footnote ³¹ This notion represented a considerable step forward in explicitly protecting “geographical origin” from the previously existing laws on unfair competition and, above all, the protection granted to “indications of origin” in the 1883 Paris Convention for the Protection of Industrial Property.Footnote ³² Since then, the notion of terroir has been at the heart of the policy justifications for protecting GIs, including the basis of the argument that GIs are incentive for local and rural development due to the fact that they promote local products. To be precise, the 1891 Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods (the Madrid Agreement),Footnote ³³ which predated the French Law of 1905 by a few years, already included a similar notion – the protection of “regional appellations concerning the source of the products of the vine.”Footnote ³⁴ Yet, French negotiators certainly influenced the language of the agreement. In 1958, the notion of terroir was then confirmed in the Lisbon Agreement, whose imprint from the French laws also cannot be overstated. Certainly the most comprehensive system of protection for appellations of origin adopted at the international level, the Lisbon Agreement also included a system of international registration. However, both the Lisbon Agreement and the Madrid Agreement had few signatories and the majority were countries from Europe.Footnote ³⁵ In May 2015, a revised text of the Lisbon Agreement was adopted after a Diplomatic Conference held in Geneva. Supporters of the Geneva Act of the Lisbon Agreement hoped that the new agreement may facilitate a membership increase.Footnote ³⁶ To date, for example, several countries in Asia-Pacific are evaluating the feasibility of joining the revised Lisbon Agreement and the international registration system. Still, the Geneva Act was adopted amidst many controversies and it may not achieve the success hoped for by its proponents.

Ultimately it was only in 1994, with the adoption of TRIPS, that GIs really entered the international stage on a full scale since all WTO Members had to include a minimum-level GI protection in their national laws as part of the obligations established by TRIPS.Footnote ³⁷ The same obligation applied to the countries that joined the WTO after 1994, many of which were countries from the Asia-Pacific region.Footnote ³⁸ Still, non-Western countries were, at large, not active parts in negotiating these provisions, even though several of these countries participated in subsequent negotiations related to the advancement of TRIPS’ built-in GI agenda.Footnote ³⁹ In particular, TRIPS established a double system of protection: a “floor level” of protection for all GIs against misleading and unfair competition-based uses of GIs;Footnote ⁴⁰ and an enhanced level of protection for GIs identifying wines and spirits against usurpation of the GI names, including when “the true origin of the goods is indicated or the [GI] is used in translation or accompanied by expression such as ‘kind’, ‘type’, ‘style’, ‘imitation’, or the like.”Footnote ⁴¹ TRIPS also established several limitations to GI protection as a result of the requests of anti-GI advocates. These include provisions on generic terms and the possibility of “grandfathering” existing rights for trademarks that were in use or had been registered in good faith before the date of the implementation of TRIPS in the WTO Member States where the mark was registered, or before the GI was protected in its country of origin.Footnote ⁴²

Nevertheless, the GI provisions in TRIPS did not fully satisfy the requests of the pro-GI countries, which managed to include into TRIPS the commitment to continue the negotiation – in the form of a built-in agenda mandating further negotiations on GIs.Footnote ⁴³ In particular, TRIPS binds WTO Members to hold future negotiations in order to (a) discuss the creation of a multilateral system of notification and registration of GIs (similar to the one already in force under the Lisbon Agreement) for wines and spiritsFootnote ⁴⁴ and (b) “to enter into negotiations aimed at increasing the protection of individual geographical indications [to the level of GIs for wines and spirits].”Footnote ⁴⁵ Because of the delay in pursuing these negotiations – due again to the opposition of anti-GI countries – GI protection was also included in the agenda for discussion in the Doha “Development” Round of WTO negotiations in 2001.Footnote ⁴⁶ The Doha version of the WTO GI agenda included again the creation of a multilateral register, no longer just for wines and spirits, but for all GIs, and the possibility of extending the higher level of protection provided to wines and spirits to all GIs.Footnote ⁴⁷ However, no agreement on any of these issues could be reached when WTO Members met in 2003 in Cancun, Mexico.Footnote ⁴⁸ As a result, multilateral negotiations on GIs have been stalled ever since, and more than a decade after the meeting in Cancun and two decades since the adoption of TRIPS, there is no sign that WTO countries may restart negotiations on the TRIPS’ built-in GI agenda any time soon.Footnote ⁴⁹

Because of this impasse, discussions about GIs have continued primarily as part of FTA negotiations in recent years. Several of these FTAs, and the resulting “FTA maze,” are addressed at length in this volume, from the perspectives of both pro-GI and GI-skeptic countries. In a nutshell, pro-GI countries, led by the EU, seem to have been particularly successful in advancing their GI protection agenda as part of the FTA strategy. For example, the EU has negotiated the protection of a long list of EU GIs, including the “claw back” of several terms that are protected as GIs in the EU and were considered generic terms in the jurisdictions of several negotiating parties, in the EU–Canada Comprehensive Trade Agreement,Footnote ⁵⁰ and in the FTAs concluded with Korea, Vietnam, and several South American countries.Footnote ⁵¹ To date, EU negotiators are continuing to press the EU GI agenda in trade talks with, inter alia, India, Japan, Malaysia, Australia, New Zealand, and the United States.Footnote ⁵² The EU is also discussing the extension of its previous stand-alone agreement on GIs with China, through which both the EU and China had registered ten GIs from the other parties in their national, or regional for the EU, jurisdictions.Footnote ⁵³ Considering the importance of China, and Asia, as the export destination for EU products, these results are certainly good news for the EU. To counter the EU strategy, GI-skeptic countries have also engaged in trade negotiations, including GI provisions. This has been the case primarily with the Trans-Pacific Partnership (TPP), which was finalized in 2015, and includes provisions related to “generic terms” and registered marks that may be protected as GIs in other countries.Footnote ⁵⁴ Still, because of the diverging interests of various TPP members, the final draft of the TPP leaves signatories free to negotiate different provisions in other FTAs, subject only to minimum requirementsFootnote ⁵⁵ – again a partial victory for pro-GI advocates. Moreover, the United States officially withdrew from the TPP in January 2017, and the agreement may never be ratified by the remaining parties.Footnote ⁵⁶

3 The Potential Benefits, Promises, and Problems of Geographical Indications for Economic and Social Development

As indicated in Section 2, besides being one of the most relevant topics of discussion in international trade today, the benefits derived by adopting a national system of GI protection have been discussed also at the national level in a growing number of countries. In particular, GI-related legislations have recently been adopted or updated in several countries, including in Asia-Pacific, as detailed by the chapters in this volume. Notably, new or updated laws have been recently adopted, inter alia, in Japan,Footnote ⁵⁷ Bangladesh,Footnote ⁵⁸ Singapore,Footnote ⁵⁹ Indonesia,Footnote ⁶⁰ and Cambodia.Footnote ⁶¹ In other countries, such as Sri Lanka,Footnote ⁶² Australia,Footnote ⁶³ and New Zealand,Footnote ⁶⁴ among others, legislative reforms about the current status of GI protection are pending or being discussed. In this respect, it is important to note that these reforms are also taking place in countries that have traditionally been skeptical of GI protection, such as Australia, which is currently debating a possible extension of GI protection for wines to other agricultural products.Footnote ⁶⁵ A similar discussion may soon start in New Zealand, a country that is currently considering a bill to implement more detailed requirements and clarification for the current level of GI protection to wines. As mentioned earlier, the growing participation of Asia and non-Western countries in discussions on GIs also brought more attention to the request of expanding GI protection to nonagricultural products, namely handicrafts and artisanal goods, such as wood-carved and pottery products, textiles, and so forth. Developing countries are large producers of these products and seek their protection not only at the national level but also internationally. For example, pressure from developing countries (in exchange of protection for EU GIs in their jurisdictions) is certainly part of the reasons why the EU is now considering expanding GI protection beyond agriculture-based products,Footnote ⁶⁶ and the proposal for a new Regulation in this respect has already received the unanimous approval of the EU Parliament.Footnote ⁶⁷

Certainly, the rise in attention to GIs is again, at least with respect to some countries, the direct effect of FTA negotiations, particularly with the EU. This is the case, for example, of Singapore, a country with no national GIs, which has updated the existing law and adopted a registration-based system of GI protection as part of the obligations undertaken under the EU-Singapore FTA.Footnote ⁶⁸ Other countries, however, already had comprehensive national GI regulations well before negotiating FTAs – this is the case of Vietnam, for instance, a country with a long-standing tradition of GI protection before the EU-Vietnam FTA.Footnote ⁶⁹ Still, several of the countries, in Asia-Pacific (and elsewhere), that decided to implement a sui generis system of protection, including a registration system, may have done this under the indirect influence from the EU, because of previous colonial ties, or in order to imitate the EU system as a proven successful system in this area when they had to implement the minimum standards of protection mandated under TRIPS. This may be the case of countries such as Bangladesh, Cambodia, China, India, Indonesia, and Thailand among others. All these countries have a registration-based system for GI protection today. In certain instances, several countries in Asia-Pacific seem also to have been influenced by successful experiences of neighboring countries in this respect. For example, it cannot be excluded that, once India implemented a system of GI protection, this triggered discussions about adopting a similar protection in neighboring countries.Footnote ⁷⁰ Presently, several of the member countries of the Association of South-East Asian Nations (ASEAN) are also stepping up their GI protection based both on a variety of FTA negotiations in the region and the example of successful GI experiences, such as those in Thailand and Vietnam.

In general, this renewed attention to GIs is driven primarily by the belief (or the hope) that GI protection can, or at least may, benefit the national economies of the countries adopting these laws. Several of the contributions to this volume discuss the potential benefits, but also the possible pitfalls, of GI protection in several countries in Asia-Pacific.

In particular, as I have recounted before, one of the staple arguments in support of GI protection – in Europe, Asia, and worldwide – is precisely the proposition that granting exclusive rights on geographical names associated to products coming from certain regions would translate into incentivizing and promoting local and rural development in those regions.Footnote ⁷¹ This argument rests on the consideration that groups of regional producers would be motivated to start investing, or continue to invest, in the production of certain types of products that traditionally originate from a given region, if they can secure exclusive rights on the geographical names of that region. This is because, in the view of the producers, obtaining exclusive rights on the GIs would guarantee the ability to capture the full profit for the quality and characteristics of the products, including the added value that the GIs could give to the products – e.g., the fact that consumers locally, nationally, or internationally may be willing to pay a premium price for sparkling wine from Champagne, tea from Darjeeling, and pepper from Kampot.

Hence, in order to secure these exclusive rights, collectivities of regional producers should work together to identify a common process that defines the uniqueness of the GI products, and submit the products’ specification with the application to register the GI. Producers should also identify quality control bodies, both internal and external, to certify the conforming of the products to the specification.Footnote ⁷² Once the GI is registered, the collectivity of producers (which generally also remain competitors in the intra GI market) is bound by the specification, and this guarantees the consistency of the quality and characteristics that consumers expect to find in all GI-denominated products.Footnote ⁷³

In other words, GIs facilitate not only local development by tying producers to the land, but also producers’ cooperation to maintain the quality of the products for the collectivity. Overall, the impact of GI protection on development continues to strengthen when GI-denominated products become established in the marketplace, as GIs incentivize the producers to continue to invest in the quality of the products.Footnote ⁷⁴ Moreover, since the land is the essential wealth, the heart, upon which the fortune of the GI producers is constructed, GIs also function as incentives for producers to adopt long-term strategies for safeguarding and enhancing the well-being of the land. In particular, GI producers are aware that the long-term health of the land and the resources of the region are crucial for the long-term success of GI products and generally work together to maintain the well-beingness of the region. Besides benefitting GI producers, this can have positive spillover on the region landscapes and in turn several other industries built around the GI products – for example, a variety of service providers, the tourism industry, including eco-tourism, and regional retailer of GI products and the producers of products that can accompany the sale of GI products.

Moreover, whereas GIs permit producers to capture the added value of GI products, GIs also operate as “badges of accountability” for those producers who decide to produce subpar products or simply not respect the requirements listed in the GI specification. In particular, under the current normative framework of GI protection, these producers will be forbidden from using the GI unless they return to producing following the mandated standards. In light of this possibility, the importance of quality control on GI products cannot be overstated. In this respect, several countries in Asia-Pacific have recently implemented or have revamped the systems of quality control of GI-denominated products in order to effectively ensure that the products comply with the product specifications.Footnote ⁷⁵

The second argument in support of GI protection is that GIs provide consumers with relevant information about the GI products.Footnote ⁷⁶ In particular, from a public policy standpoint, GIs offer to consumers, including retailers purchasing GI-denominated products for resale, information that can reduce the information asymmetries that consumers usually face compared to producers at the time of purchase. In other words, GIs offer additional information about the quality and characteristics of the products, and this offers consumers the possibility to make a better-informed decision about their purchase.Footnote ⁷⁷ GIs can also offer relevant information about the safety and the health of the products because they offer information about the origin and the practices that go into making the products.Footnote ⁷⁸ Similarly, GIs can provide information about the impact of the manufacturing and other practices used to produce the GI-denominated products on the environment, and even labor practices, including overall human rights. Again, this set of information could assist consumers in identifying potentially healthier foods for their individual needs, or artifacts made with traditional or environmentally friendly manufacturing techniques for those countries that provide GI protection beyond food-related products. As mentioned earlier, GIs can even reduce possible “contagion effects” due to negative incidents in a given geographical market for a certain type of product.Footnote ⁷⁹ This was the case, for example, with respect to the scandal of the contaminated “mozzarella di bufala campana,” a GI-denominated product from Italy.Footnote ⁸⁰ In this case, consumers could use the information provided by the GI to know that they should avoid the products originating in the affected region, while they could safely continue to purchase the generic product “mozzarella di bufala” from other regions.

In addition to the arguments that GI promotes economic development and reduces information asymmetries from consumers, another argument has been brought forward in recent years to justify GI protection. This argument is directly addressed by several contributions in this volume and centers on the proposition that GIs can protect the cultural identity of local and regional communities, which in turn may contribute to promoting cultural diversity.Footnote ⁸¹ The growing importance of GIs under the lenses of culture-related concerns finds additional support in two separate conventions that have been recently adopted under the patronage of the United Nation Educational, Scientific and Cultural Organization (UNESCO): the 2003 Convention for the Safeguarding of the Intangible Cultural HeritageFootnote ⁸² and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.Footnote ⁸³ Under the UNESCO framework, GIs seem well suited for the protection of culture-based interests because GI products frequently relate to local and traditional knowledge of the region where the products are made.Footnote ⁸⁴ Thus, granting exclusive rights to GIs could serve to promote the continuation of traditional manufacturing techniques, which could otherwise succumb to the competition of mass production techniques. Moreover, GIs directly contribute to reinforcing local identities by again promoting the making and selling of local products. As others and I have suggested, this may promote greater product diversity in an economy where products would be otherwise increasingly similar due to the globalization of trade and the de-localization of product manufacturing.Footnote ⁸⁵

Hence, as Justin Hughes pointedly observes in this volume, for all their potential benefits for local development and culture, GIs are not a magic recipe for success for local producers. Instead, several of the GIs that have been registered in the EU, and elsewhere, to date, have not brought to their producers more than some modest returns and, at times, the same returns as non-GI products. This has been proven true, in particular, with respect to raw materials and non-processed agricultural products.Footnote ⁸⁶ As a result, this partially questions the value of GIs for these products. In turn, this raises question about the value of GI protection for developing countries, as many of the GIs registered and protected in these countries are for raw materials and non-processed agricultural products. Moreover, developing countries often lack the infrastructure to enact strict quality control programs, and appropriate marketing of the products. Similarly, foreign enterprises are often deeply involved in the management of GIs in developing countries, which may lead to their business interests prevailing over long-term local (and thus national) development.Footnote ⁸⁷ This could become problematic for local communities, particularly when foreign businesses push for excessive production and fast-paced growth of the products’ quantities.Footnote ⁸⁸ More generally, the success of any GI products can become a double-edged sword and lead to inconsiderate exploitation of the land and natural resources without proper management of the GIs and a long-term strategic plan for the growth and development of the products. In turn, this could directly and negatively affect the local environment, and overall the sustainability of the production of the GI products themselves. A telling example in Asia-Pacific is the case of “Phu Quoc,” which was registered as a GI for fish sauces in Vietnam in 2001. After obtaining the GI registration, national (and foreign) producers overproduced without implementing a rigorous system of quality control for the products for several years. This led to unwelcome results for the local environment, and the simultaneous rise of counterfeits.Footnote ⁸⁹ Only recently, a control body for the Phu Quoc products was established and the body has stepped up in controlling the quality and authenticity of the products.

4 Terroir with Less Terroir? The Rise of “Reputation-Based” Geographical Indications, the Loosening Territorial Linkage, and Risks Thereof

This section argues that GI protection becomes more questionable when the products do not entirely originate from the GI regions and GI producers use a partially de-localized production model for their products. Unfortunately, despite the claims of “geographical purity” supported by pro-GI advocates, this partially delocalized model of production for GI products seems today to be more the norm than the exception, with the blessing of international law and most national laws on GIs. Hence, when GIs do not identify fully locally made products, GI protection can easily transform in subsidies and thus confirm the concerns that are often expressed by GI skeptics. In essence, as I argued in my previous scholarship, granting exclusive rights when GIs do not identify fully locally made products risks to transform GIs into a marketing tool rather than signs of the accurate geographical origin of the products at issue.Footnote ⁹⁰ This, in my opinion, seems to run against the very rationale for protecting GIs in the first place – the linkage between the products and the land, in other words the commonly celebrated unique relationship between the products and the terroir.

Certainly, it should be noted that the relationship between the terroir and the products originating from the land has been partially romanticized. In particular, this relationship was never absolute and overly strict, despite the (often conveniently painted) arguments of GI supporters. This was already the case with respect to the first laws on GIs – or, more precisely, their predecessors “indications” and “appellations” of origin – in the legal landscape. Yet, as mentioned in Section 2, starting with the French laws of the early 1900s, and a few years prior with the Madrid Agreement, it is accurate to say that the broad justification for protecting indications of geographical origin was enshrined in the notion that these indications deserved separate protection from other distinctive signs – primarily trademarks – because of the special relationship between the location from which the products originate and the overall characteristics of the products. In 1958, the definition of “appellations of origin” in the Lisbon Agreement codified this notion in Article 2(1), which reads that “appellations of origin” are the “geographical name[s] of a country, region, or locality, which serve to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.”Footnote ⁹¹ Article 2(2) of the Lisbon Agreement further clarified that “[t]he country of origin is the country whose name, or the country in which is situated the region or locality whose name, constitutes the appellation of origin which has given the product its reputation.”Footnote ⁹²

Certainly, despite its strong emphasis on the “geographical environment,” the very language of the Lisbon Agreement already reflected some flexibility in the definition of “appellations of origin.” Notably, Article 2(1) does not impose an “exclusive” connection between the products and the land, but just an “exclusive or essential” connection. Moreover, the definition in Article 2(1) adds “human factors” to “natural factors” with reference to the “exclusive or essential” elements of the products’ quality or characteristics. As supported by prominent scholars, reference to human factors may be seen as evidence to support a system of GI protection focused on localities as the place not only where products are grown but also where the products are made, possible with ingredients and raw materials partially originating from outside the region. Last, but not least, the Lisbon Agreement also refers to the notion of product “reputation,” a concept later found in TRIPS, even though the combined reading of Article 2(1) and 2(2) indicates that the use of the wording “reputation” in Lisbon is a narrow one, meaning primarily that protectable appellations of origin are the names of those geographical locations that have given reputation to a certain product coming from those locations. As explained in the remainder of this section, the concept of “reputation” has later emerged as an (almost) independent justification for protecting GIs today – a tendency that Dev Gangjee explores in this volume based on both a “geography” and “history” approach.

Still, the major loosening of the definition of GIs away from a strict interpretation of the notion of “geographical origin” was the direct result of the adoption of TRIPS in 1994. Notably, Article 22(1) of TRIPS blends the concept of terroir – in its romantic interpretation as absolute relationship between the products and the land – with a much wider concept of “reputation” compared to the concept in the Lisbon Agreement. In particular, Article 22(1) of TRIPS defines GIs as “indications which identify a good as originating in the territory … 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.”Footnote ⁹³ In other words, the provision in TRIPS makes of the linkage between products and the land just an “essential” and no longer an “exclusive or essential” element for GI protection. This loosening of “geographical accuracy” in the TRIPS’ definition of GIs is exacerbated by the fact that TRIPS includes the notion of “reputation” front and center in the definition of GIs, treating “reputation” as an equally significant element for GI protection as the other characteristics and qualities of the GI-denominated products. In other words, following TRIPS, producers in a given region are able to claim exclusive rights on the geographical names of the region with respect to their products even though the products may be manufactured with ingredients entirely originating from outside the region, simply because the name of the region has, historically, been linked with the products and has given to the products their reputation (most likely because the products were first made, or became famous when they were made, in the region).

As I mentioned in the Introduction, it is a known fact that the language of Article 22(1) of TRIPS was heavily influenced by the language of the existing EU Regulations at the time of the TRIPS negotiations, and that the EU strongly supported this language. Notably, Council Regulation (EEC) No. 2081/92 of July 14, 1992, on the protection of GIs and designations of origin for agricultural products and foodstuffsFootnote ⁹⁴ protected two different types of GIs: “geographical indications” (PGIs), which were defined as “the name[s] of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff” that are “originating in that region, specific place or country” and “which possess a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area”;Footnote ⁹⁵ and “designations of origin” (PDOs), which were defined as “the name[s] of a region … used to describe an agricultural product or a foodstuff” that are “originating in that region, specific place or country” and “the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area.”Footnote ⁹⁶ For the latter type of GIs, the PDOs, a stronger link with the territory was required under EU law, but that was not the case for PGIs. Moreover, Regulation No. 20181/92 provided that “certain geographical designations shall be treated as designations of origin where the raw materials of the products concerned come from a geographical area larger than or different from the processing area.”Footnote ⁹⁷ Regulation 2081/92 was later amended and replaced, but today’s Council Regulation (EC) No. 1151/2012 (Agricultural Products and Foodstuff Regulation)Footnote ⁹⁸ and Council Regulation (EC) No. 479/2008 (Wine Regulation)Footnote ⁹⁹ repeat almost verbatim the same definitions for PGIs and PDOs. Council Regulation (EC) No. 119/2008 (Spirits Regulation) only refers to “geographical indications” for spirits.Footnote ¹⁰⁰ Despite their differences in the requirements to qualify as PGIs or PDOs, both types of GIs enjoy the same level of (enhanced) protection in the EU.

Besides the influence of the EU Regulations on the definition in TRIPS, in May 2015, a provision blending Article 22(1) of TRIPS and the EU definitions was introduced into the Geneva Act of the Lisbon Agreement,Footnote ¹⁰¹ which amends the definition in Article 2(1) of the Lisbon Agreement. In particular, similar to EU law, the Geneva Act definition now includes two types of GIs, namely “geographical denominations” and “geographical indications.” More specifically, Article 2(1) of the Geneva Act defines (i) geographical “denominations” as signs which “designate a good as originating in that geographical area, where the quality or characteristics of the good are due exclusively or essentially to the geographical environment, including natural and human factors, and which has given the good its reputation”;Footnote ¹⁰² and (ii) geographical “indications” as signs which “consist of or contain the name of a geographical area, or another indication known as referring to such area, which identifies a good as originating in that geographical area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”Footnote ¹⁰³ In this respect, Article 2(1)(i) of the Geneva Act merges the language of Article 2(1) and 2(2) of the Lisbon Agreement, adding to the definition of “geographical denomination” (previously “appellations of origin”) the wording “which has given the product its reputation.”Footnote ¹⁰⁴ Article 2(1)(ii) repeats the TRIPS and EU definition for “geographical indications,” and refers to “reputation” as an element sufficient, per se, for granting exclusive rights on GIs.Footnote ¹⁰⁵ Article 2(2) of the Geneva Act then enlarges the scope of the definition even more in Article 2(1) by defining “geographical area” as potentially also “the entire territory of the Contracting Party of Origin [thus a whole country] or a region, locality or place in the Contracting Party of Origin.”Footnote ¹⁰⁶ This area can now consist also “of a trans-border geographical area, or a part thereof.”Footnote ¹⁰⁷

In summary, the review of the development of the current definition of GIs directly reflects a far less stringent relationship between GI products and the terroir than the one that is often purported in the GI debate. This review shows, in particular, a progressive loosening of this linkage, at least in terms of the dependence of the products from the physical and natural resources of the GI regions. It also shows the rising importance of the human factors, traditionally a partially less relevant element in the GI debate compared to the physical and natural resources, as a qualifying element per se for claiming exclusive rights on geographical names. More problematically, it empowers national authorities to grant GI rights based simply on the reputational link between products and geographical names. Not surprisingly, the loosening of the strictness of this territorial linkage matches changes in international trade, including trade facilitations and a larger access to raw materials from foreign markets at reduced, or no longer existent, tariff barriers. Under the current system, GI producers could have the best of both worlds – claiming exclusive rights on famous locations that grant a competitive advantage to their products against competitors on the one side, and the possibility of accessing cheaper raw materials in foreign markets, if not cheaper human factor, at least in part, for processed GI products, including handcrafts and artisanal goods. Hence, this system no longer accurately identifies the geographical origin of the GI products nor fulfills the functions that are at the core of GI protection: incentivizing local and rural development, and offering accurate information to consumers.

As I mentioned before, the protection of GIs – well-known GIs in particular – certainly offers an important legal alternative in a world in which agricultural subsidies, and other trade subsidies, are increasingly scrutinized as barriers to international trade. In this respect, GIs permit producers to continue to secure some “monopoly rent” against competing products in the international market.Footnote ¹⁰⁸ Not surprisingly, the loosening of the definitions of GIs has been supported precisely by those nations and stakeholders representing GI-intensive countries and industries, such as the EU. Yet, this begs the following question: is this “modern” system of GI protection compatible with the historical objectives of this protection? Moreover, under the current system, the blame and shame for any problems related to products not fully originating from GI-denominated regions may be erroneously passed on to other GI producers, including those who entirely produce their products in the GI-denominated area. Ultimately, as I elaborate in the following section, this modern system of protection could be made compatible with the traditional objectives of GI protection, should GI producers clearly disclose the actual geographical origin of the raw materials, product ingredients, and manufacturing steps that do not originate from the GI region. This is of particular importance to, and thus should interest, developing countries in Asia-Pacific and elsewhere, as these countries are strong producers, and exporters, of (mostly agricultural) raw materials and non-processed products, which are, or could be, used by other countries’ producers.

5 Full Disclosure Required: The Case for a System of Protection Based on a More Flexible, but Still Accurate, Notion of “Geographical Origin”

Based on the considerations in Section 4, it is not an exaggeration to state that the system of GI protection that is currently being embraced by TRIPS and other relevant international agreements and national legislations directly favors a flexible notation of “geographical origin,” which does not necessarily include the origin of all the ingredients and steps of manufacturing that are used and needed for the production of the GI products. In this respect, criticisms by GI skeptics exposing the inconsistency between this reality and the arguments put forward by GI supporters that GI deserves special protection because of the linkage between the products and the terroir are thus well taken. Still, these criticisms should not let us lose sight of the actual and potential benefits that a system of GI protection which is focused on accurate information, can otherwise bring to both consumers and local development. Moreover, we should not forget that the criticisms expressed against GI protection often derive from supporters of an anti-GI agenda, an agenda that frequently aims to protect the national interests of businesses that use (misusing them in the view of this author) foreign GIs to identify their generic national products – frequently adding to the packaging of these products additional misleading elements, such as flags, national symbols, and color schemes reminiscent of the foreign countries from where the GIs originate and that are famous for their GI products.

Ultimately, as the contributions to this volume illustrate from a variety of different angles, as much as GI protection favors a certain set of interests – those of localities with strong agricultural or artisanal traditions and the businesses in these localities that grow or manufacture products related to these traditions – the lack of appropriate GI protection favors another set of interests – those of businesses producing similar products to be sold under names that are similar to the existing geographical names even though the products do not share any geographical link with those locations. Disputes over terms like Budweiser, Champagne, or Parma between business interests in different countries are illustrious examples of these conflicting interests.Footnote ¹⁰⁹ Accordingly, the arguments put forward by GI skeptics should also be carefully vetted as these arguments may also not offer optimal solutions for consumers and (national and/or local) economic development. For example, in some instances, the use of GI names in unrelated contexts in different countries does indeed derive from decades of usage by immigrant communities, or is due to the fact that the GI terms have indeed become generic terms in those countries. In this case, specific exceptions should be, and generally have been, carved out with legal solutions. Hence, these cases are less frequent than GI skeptics tend to purport. In contrast, in several cases, the inappropriate use of GIs by third parties in foreign countries seems to be done with the specific intent to exploit the association generated by these terms with certain (famous) foreign geographical places in order to create a sense of déjà vu and reassurance in consumers, especially in other jurisdictions where these “GI look-alike” products compete with authentic GI products. This is certainly the case with respect to the names of many cheeses available in the market in New World countries today.

Still, despite these flaws in the arguments of GI skeptics, a more rigorous interpretation of the notion of “geographical origin,” one that better complies with the normative objectives that have been traditionally invoked to justify GI protection, is nevertheless needed to restore legitimacy in the arguments supported by GI advocates in favor of GI protection, especially when these arguments are used to request that other countries agree to adopt additional protection beyond the level currently provided for in TRIPS. As I mentioned earlier and have also argued in my previous scholarship,Footnote ¹¹⁰ in the absence of a considerable “refocus” toward greater geographical accuracy (i.e., toward a system in which GIs effectively convey accurate information about products’ geographical origin), GI protection may become nothing more than a monopoly (and more problematically one not limited in time) on geographical names for possibly no other sound reasons than the historical reputation of a certain location. In this case, however, GI protection no longer brings about the benefits that communities had hoped for in terms of local development – as part of the products would be made outside the regions. Likewise, the use of GIs may result in increasing, rather than decreasing, the information asymmetries between producers and consumers as to the actual origin and quality of the products at issue. In other words, from badges of geographical origin and associated characteristics, GIs may become just badges of misleading information to induce consumers to believe that products originate from a region, even though, in practice, the ingredients may originate, at least in part, elsewhere, or simply badges of a reputation that is associated to a location only based on past traditions which no longer exist.

In a previous article, in 2014,Footnote ¹¹¹ I argued in support of the adoption of a narrower and more geographically coherent definition of GIs to resolve the risks of geographical inaccuracy, or inconsistency, which may plague the current system of GI protection. This narrower approach, I argued, could be based on limiting the granting of GI protection only to those products that are actually grown in the GI regions, or effectively originate from these regions with respect to the entirety of the ingredients and manufacturing steps necessary to manufacture the finished products. To reach this result, I suggested that one option could be to delete the wording “reputation” from Article 22(1) of TRIPS, and with it the possibility to grant exclusive rights on GIs just based on the “reputation” of the GI products without any additional link to the actual quality and characteristics of these products. Likewise, I suggested the removal of the word “essentially” from the definition of GIs in Article 22(1), so that GIs would be defined 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, or other characteristic of the good, is attributable to its geographical origin.”Footnote ¹¹² Alternatively, I suggested the introduction into TRIPS’ definition in Article 22(1) the wording “essentially or exclusively” as in the 1958 version of the Lisbon Agreement.Footnote ¹¹³ In my opinion, this language would better reflect a very high level of geographical connection between the products and the GI-denominated areas. Today, in light of the 2015 Geneva Act of the Lisbon Agreement, this proposal should include amending the new definition in the Geneva Act discussed in Section 4, as this definition has been modeled after TRIPS.

However, as I already acknowledged in 2014, amending TRIPS is likely to be an impossible task today, due to the current gridlocking of trade negotiations within the WTO and the collapse of the Doha multilateral agenda.Footnote ¹¹⁴ Moreover, many countries have implemented a definition of GIs similar to TRIPS, thus any amendment of TRIPS should be followed by the amendments of these national laws. This would certainly result in an equally complex, if not again an impossible, task to achieve in practice.

Still, a perhaps less radical but effective proposal for a refocus of the current system of GI protection toward a system based on a stricter territorial linkage and more transparent disclosure of the geographical origin of the products may nonetheless be possible under the current framework. In particular, after further thinking and discussing this issue, I have reached the conclusion that the key for such a solution lies in interpreting the definition of Article 22(1) in light of the provision in Article 22(2) of TRIPS, which forbids any misleading use of a GI and states that “interested parties” are entitled to oppose “(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 goods.”Footnote ¹¹⁵ As noted in Section 2, this provision provides the minimum protection for all GIs against misleading uses. Yet, nothing in the language of the provision seems to indicate that only GI producers can invoke Article 22(2) to oppose the misleading use of GIs by third parties. Instead, the provision clearly applies to all misleading use of a GI. This may include all the cases in which GI producers use a GI to identify products that do not fully originate from the region, should the public believe that the products entirely originate from the region. In other words, this may include the cases in which GI producers turn to ingredients or raw materials, or partially prepare the products with labor from outside the region, and do not disclose these facts to consumers who purchase the products believing that they originate in their entirety from the region.

Thus, based on the assumption that Article 22(2) of TRIPS could be invoked also to prohibit the misleading use of GIs by GI producers, a solution that could potentially address the geographical inaccuracy, or inconsistency, and the (at least partial) lack of transparency of the current system could be the following: GI producers could be required to clearly disclose the actual geographical origin of any raw materials, ingredients, and manufacturing steps of the products that do not originate from the GI region at the point of sale and on the packaging of their products.

In particular, Article 22(2) of TRIPS could be interpreted as providing that, should producers not disclose this information to consumers in a transparent and explicit manner, GI producers may then be held accountable for using GIs “in a manner which misleads the public as to the geographical origin of the goods” and thus denied the right to use the said GIs. To the contrary, when producers disclose the actual origin of any raw materials, ingredients, and manufacturing steps of the products that do not originate from the GI region, they would be seen as complying both with Articles 22(1) and 22(2) of TRIPS, or more precisely their equivalent provisions in the national jurisdictions where the GIs are registered and/or protected. In practice, information about the quality and actual origin of the ingredients and raw materials used for the products may already be listed in the product specification, even though it is unclear if national laws require such disclosure as a requirement for registering GIs.Footnote ¹¹⁶ Moreover, consumers rarely consult product specifications, if they are aware of the existence of these specifications at all. Instead, consumers generally rely on the information that they can find directly on the product packaging and advertising.Footnote ¹¹⁷ Accordingly, by requiring producers to fully disclose the geographical origin of raw materials, ingredients, and manufacturing steps on the packaging on the products and related product advertising consumers would be made aware of the actual origin of all these various components. This not only would allow consumers to make better informed purchasing decisions; it would also incentivize GI producers to select materials, ingredients, and human factors of a quality on par with the reputation of the products, lest consumers may no longer purchase the GI products.

Equally relevant, this obligation could benefit the producers in the localities from which the raw material ingredients originate, or the workers that provide some of the manufacturing steps of the products. Today, these producers and workers disappear in the production chain of the GI products, and their work is not at all recognized even though their role in the final quality, and the overall success of the products, cannot be overstated – simply put, there would not be Swiss chocolate without cocoa beans from cocoa plantations that are certainly not located in Switzerland.Footnote ¹¹⁸ This observation is of particular importance for countries that are primarily producers and exporters of agricultural products, and in particular for developing countries, including developing countries in Asia-Pacific – many of which have registered GIs for agricultural products.Footnote ¹¹⁹ As noted also in a 2013 study, raw materials command a much lower premium price than finished products in general,Footnote ¹²⁰ and in countries whose GIs are primarily agricultural and raw-materials-based, GI producers do not seem to receive a fair share from the current GI system compared to the producers of fully developed GI products. Instead, processed products, like wine and cheese, tend to enjoy higher premium prices over competing products, even when they are made, in part, with foreign ingredients – again the case of Swiss chocolate is on point.Footnote ¹²¹ In this respect, a more transparent system of GI protection requiring full disclosure would both be compatible with the current language of TRIPS and make a stronger case in support of GI protection everywhere.

6 Conclusion

This chapter highlighted how the debate over GI protection remains controversial under multiple fronts. Notably, as the title of this volume summarizes, GIs are today at a crossroads between trade, development, and culture-related interests. In particular, this chapter illustrated how the GI debate, and related controversy, continues to dominate international trade negotiations – at this time no longer (or not only) under the umbrella of the WTO, but primarily as a topic addressed in bilateral and multilateral FTAs. Moreover, attention to GIs is no longer just a “European thing,” even though the EU has largely built its trade negotiations’ agenda over obtaining protection, or enhancing the existing protection, for its GIs. Instead, many countries outside the EU, including in Asia-Pacific, have turned their attention to GIs and implemented national systems of GI protection driven by the beliefs (and hopes) that this could promote local development as well as assist marketing their products in the global market. Hence, this chapter has also highlighted that GIs do not represent, per se, a magic tool for local development. Thus, a wise development strategy should always include strict quality control protocols, long-term plans to maintain product quality, and thoughtful marketing strategies.

While highlighting the economic benefits of GI protection, this chapter also emphasized that GIs should not become pure marketing tools for GI producers. In this respect, it argued that the current definition of GIs has drifted toward a looser linkage between GIs and their historical justification: the territorial linkage between the products and the regions. Notably, GI protection today extends to products that only “essentially” originate from GI-denominated regions, which permit producers to partially (or mostly) outsource the raw materials, ingredients, or manufacturing steps of GI products, and still enjoy exclusive rights on the GI names. This chapter criticized this development as not being in line with the normative justifications for GI protection and possibly a violation of Article 22(2) of TRIPS. Instead, this chapter supported a narrower definition of GIs to reflect a closer linkage with the terroir, with this link implemented in the form of a requirement that GI producers disclose the actual origin of all the raw materials, ingredients, and manufacturing steps of the GI products to consumers at the point of sale, and on the product packaging and advertising. This requirement is compatible, and perhaps even mandated, under a sensible interpretation of Article 22(2) of TRIPS, and would benefit a more transparent system of GI protection, both to the advantage of producers – GI producers and the producers of the foreign materials, ingredients, and labor of GI products – and consumers.

1 Introduction

For much of its history, the notion of a distinctive link between regional products and their places of origin has been articulated in the language of terroir. This polysemous term acts as a cipher for the influence of geographical origin on the end product’s quality.Footnote ¹ As one leading scholar of the concept describes it: ‘Historically, terroir refers to an area or terrain, usually rather small, whose soil and micro-climate impart distinctive qualities to food products. The word is particularly closely associated with the production of wine.’Footnote ² This type of causal relationship – where the physical geography factors within a region leave their distinctive traces upon the end product – is reflected in the definition of a geographical indication (GI) found in Article 22.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).Footnote ³

According to Article 22.1, a GI is a sign that identifies ‘a good as originating in the territory of a [WTO] Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’ (emphasis added). However, this chapter will focus on the relatively ignored option bracketed between qualities and characteristics – reputation. Ironically, reputation is the least talked about form of linkage between product and place. The analysis which follows considers the question of when a product’s reputation can be said to be essentially attributable to its geographical origin.

This is a question worth investigating because it relates to the very foundation of GI protection. The basis for treating GIs as a distinct intellectual property (IP) regime rests on the notion of a verifiable link between a product and its place of origin.Footnote ⁴ In the words of the World Intellectual Property Organization (WIPO):

The necessity for a causal and objectively verifiable link was also endorsed by the Institut National de l’Origine et de la Qualité (INAO), which has regulated GIs in France since its inception in 1935.Footnote ⁶ When registering a protected designation of origin (PDO) or protected geographic indication (PGI), a demonstration of the causal interaction between the specificities or characteristics of the area and the characteristics of the product is expected to be provided.Footnote ⁷

Yet despite the justificatory significance of the link, scholars working in this field have noticed a countervailing trend – a general loosening of the link requirement accompanied by less demanding scrutiny. Driven by the desire to reach strategic multilateral compromises and develop an international consensus in favour of GI protection, proponents of GIs have been relaxing definitional criteria and overlooking enduring ambiguity for decades. In recent work, Irene Calboli has argued for a return to a more rigorous GI definition, which does not stray too far from terroir.Footnote ⁸ The PGIFootnote ⁹ is cast as the culprit for the lowering of standards, with its permissive approach to a reputational link and its relatively undemanding requirement that only one stage of the product’s life cycle (its production, or processing, or preparation) take place within the defined region of origin.

In recent work, I have explored the flexibilities and blind spots contained within the European Union’s (EU) GI registration system for agricultural products and foodstuffs, including the limitations of a public certification process when verifying the link between product and place. Within this two-stage process, both the national registrar and the European Commission ultimately work with, and are constrained by, the product specification that is submitted.Footnote ¹⁰ A registrar can be provided with a PGI specification that is entirely silent on certain aspects of production, that permits the sourcing of raw materials for a PGI from outside the specified region or that describes the reputation link by merely referring to a few historical sources. Despite this being a unitary EU-wide system operating according to harmonised standards, there is very limited guidance provided by the Commission in terms of the criteria to be satisfied.Footnote ¹¹

Delphine Marie-Vivien is also interested in the apparent attenuation of the link requirement for PGIs, but she explores the potential to accommodate human factors within this less deterministic (in a physical geography sense) form of link. The PGI model has the flexibility to incorporate traditional crafts and textiles within the present EU approach towards GI protection. Therefore, for Marie-Vivien, reputation is the potential vector for admitting such products into the EU’s conceptual framework of GIs.Footnote ¹² Crafts, textiles and non-agricultural GIs in general are of interest not just for the EU but for countries in Asia and Africa as well. Thus, reputation as a form of linkage between product and place is presently both a cause for concern – because its loose application undermines the justifications for GI protection – and a potentially flexible option to incorporate non-agricultural products, which demonstrate an appropriate historic connection with a place. Both its peril and potential make this an opportune moment to study the question taken up by this chapter.

Section 2 will identify five reasons why we need to think about the content of the reputation link more closely. While reputation is increasingly being relied upon in GI legislation as well as registration systems, there is a curious absence of criteria that would help to establish this type of link. Section 3 will establish that assistance cannot be found in the drafting history of TRIPS or other contemporaneous legal instruments. It will review the circumstances under which the reputation link was introduced and show that it is normatively hollow. This history suggests that it was incorporated into the draft text of TRIPS as an acceptable compromise, not only between New World opponents and Old World proponents at the General Agreement on Tariffs and Trade (GATT) negotiations leading up to TRIPS, but also as a viable solution for members of the European Community (EC), who were divided over which types of GIs ought to be recognised within Europe. Indeed, reputation was rather hastily incorporated within a framework otherwise premised upon terroir. Therefore, if we are to make meaningful sense of a reputation, which is essentially attributable to origin, then this type of link should be informed by the overall purpose and objectives of sui generis GI protection. The potential components of the reputation link are unpacked in Section 4, which will also relate these criteria back to the foundations for GI protection. Section 5 concludes.

2 Why We Need to Talk about Reputation

There are at least five compelling reasons why we should think more carefully about reputation as the basis for the link between product and place. First, the GI definition in Article 22.1 of TRIPS is by now well established as the international reference point. This is evident in national or multilateral definitions that map on to Article 22.1.Footnote ¹³ Reputation is therefore an independent and sufficient basis for satisfying the definition of a GI. However, it is a form of linkage that will inevitably be subjected to testing. The ongoing TRIPS negotiations regarding the establishment of a multilateral register for wine and spirit GIs have witnessed deliberations on whether registration notifications should include ‘details of the quality, reputation or other characteristics of the wine or spirit essentially attributable to its geographical origin’.Footnote ¹⁴ The requirement for such details at the time of international registration is also reflected in the ‘work-in-progress’ composite text of the multilateral register.Footnote ¹⁵ A notification could include a declaration of conformity with the definition of a GI in Article 22.1 of TRIPS. Not satisfying Article 22.1 could potentially be a basis for refusing protection within the territory of a participating member.Footnote ¹⁶ Yet, the reputation link in Article 22.1 remains poorly understood.

Second, the TRIPS definition of GIs has recently been accommodated within Article 2(1)(ii) of the Geneva Act of the Lisbon Agreement 2015.Footnote ¹⁷ The Lisbon system has established an international registration system for qualifying geographical designations, which are recognised at the national level. Scrutinising international registrations for compliance with the definition of a GI is once again a concern here, but a more immediate one. Where the ‘reputation … of the good is essentially attributable to its geographical origin’, it will now qualify for international registration. The Geneva Act provides for both the initial refusal of the effects of international registration by a Contracting Party (Article 15) and the possibility of subsequent invalidation (Article 19). Both refusal and invalidation proceedings require the grounds to be stated.Footnote ¹⁸ During the deliberations leading up to the adoption of the Geneva Act, ‘grounds based on failure to meet the definition of an appellation of origin or a geographical indication’ were specifically envisioned as a reason for invalidation.Footnote ¹⁹ Similarly, a refusal to recognise a GI can be based on any ground, including failure to satisfy the definitional provisions.Footnote ²⁰ Thus, a more developed sense of when a reputation is ‘essentially attributable’ to the product’s geographical origin is a necessary prelude to any such challenges.

If the first two reasons relate to multilateral obligations and international norms, the next three draw upon developments within the EU context, but the insights are more broadly applicable. The third reason is conveyed most conveniently by statistics. As of 29 February 2016, the Database of Origin and Registration (DOOR) indicated that PGI registrations were maintaining their lead over PDO registrations in the EUFootnote ²¹ – there were 671 registered PGIs and 604 registered PDOs.Footnote ²² One principal difference between the two types of GI is that for a PGI to be registered a product’s ‘given quality, reputation or other characteristic is essentially attributable to its geographical origin’, whereas for a PDO, the product’s ‘quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors’.Footnote ²³ It is evident that the reputational basis for registration, with its attendant flexibility, is proving to be popular.

Fourth, recent pronouncements from the Court of Justice of the European Union (CJEU)Footnote ²⁴ have confirmed that the EU’s harmonised regime for GI protection, set out in Regulation 1151/2012 and its predecessors, is exhaustive and pre-empts national GI registration systems to the extent that they regulate the same subject matter.Footnote ²⁵ Therefore, where a regional product’s reputation is causally attributable to its geographical origin, it can no longer be protected by national protection systems, such as passing off or unfair competition law, which have historically protected GIs.Footnote ²⁶ As a recent dispute concerning Greek Yoghurt highlights, such a geographical designation has to be registered at the EU level, failing which it is apparently left vulnerable, without any legal protection at the national level.Footnote ²⁷ The objective is to channel all suitably qualified subject matter into the unitary EU regime in order to achieve complete harmonisation. However, the CJEU case law suggests that simple geographical designations can continue to be protected at the national level, for instance, under unfair competition law. The court has recently summarised the position as follows:

Consequently, it seems that the CJEU endorses a distinction between a PGI-type reputation that is objectively or causally attributable to origin and a non-PGI type reputation, where a product may be subjectively or ‘romantically’ connected to its region of origin in the eyes of consumers but for which there is no objective basis. The latter may still be protected under national unfair competition law, provided it does not unjustifiably impede the free movement of goods within the internal market. In the United Kingdom (UK), this distinction was at issue in Greek Yoghurt, where subjective reputation was described in the following manner:

Ultimately, what mattered for the requirements of the tort of passing off was that a subjectively held and commercially valuable reputation contingent upon Greek origin existed which could be protected against misrepresentation. We therefore need clearly identified and workable criteria in order to distinguish between these two types of reputation associated with geographical origin, because only subjective reputation will continue to be protected at the national level within the EU.

The fifth reason for seeking greater clarity is that the European Commission is proposing to extend the EU’s GI regime to non-agricultural products and handicrafts. Its interest was signalled in a Green Paper in 2014,Footnote ³⁰ which drew upon a prior study exploring the potential to register crafts and textile products from across the EU.Footnote ³¹ The Commission’s proposal recognises that non-agricultural products may also possess a link to a region, which can either be a terroir or reputation-based link:

If reputation is to be put to work in this context, then we need to better understand how it can be anchored in or ‘essentially attributable’ to the place of origin.

3 Reputation: A Compromise or Compromised?

Historical research confirms that we are unlikely to find the answers we seek within the text or travaux of TRIPS. This section documents (a) how reputation was included within the TRIPS definition as a compromise; and (b) how it was an incompletely conceived compromise, because reputation was hastily amalgamated within a paradigm otherwise dominated by a terroir-based approach to GI protection. This compromise unfolded in two broad stages. To fully account for the presence of the reputation link in TRIPS, we have to first acknowledge a prior reconciliation within Europe as part of the historical backdrop to the EU’s own harmonised GI regime for agricultural products and foodstuffs.

4 From Geography to History: An ‘Essentially Attributable’ Reputation

Now for the difficult question: what kind of reputation ought to be ‘essentially attributable’ to geographical origin? Without clear guidance, there is a very real risk that the established unfair competition or trademark approach to measuring reputation will be inappropriately transplanted into the sui generis GI context. For these regimes, establishing a sign’s reputation is relevant primarily in two situations:

1. (a) Does the trademark applicant’s or unfair competition claimant’s sign qualify for protection? Here, a sign may initially be a descriptive or otherwise unsuitable term (e.g., STAPLES for office supplies),Footnote ⁷⁰ but over time and through marketing efforts, the relevant public can be taught that the sign indicates a specific commercial source. The success of this process of education is measured via the doctrines of acquired distinctiveness or secondary meaning.Footnote ⁷¹

2. (b) What is the scope of protection available? Reputed or famous trademarks are granted a broader penumbra of protection both under the likelihood of confusion test (which prevents use of the trademark on dissimilar goods or services, or even in the absence of registration) and via causes of action collectively referred to as ‘dilution’ which all rely on a non-confusing but otherwise wrongful association being made between the claimant and defendant’s signs.Footnote ⁷²

These approaches seek to determine (a) what percentage of the relevant public are familiar with the sign; and (b) for certain types of claims such as tarnishment, what do the public think about the sign to begin with? Therefore, reputation has a quantitative as well as a qualitative dimension, but it is concerned with contemporary consumer perception. This is reflected in the direct, as well as circumstantial, categories of evidence that are admissible to establish its existence. Therefore, in both the EU and the US, courts will consider factors such as the market share of the product sold under the sign; the intensity, geographical extent and duration of use; the investment in advertising and promotion; the extent of consumer recognition via survey evidence; trade recognition; and unprompted media coverage.Footnote ⁷³ However, the trademark and unfair competition approaches focus on whether the reputation exists at the relevant time and not how it came about, let alone why it arose in a particular place.

So when is a reputation ‘essentially attributable’ to its geographical origin? The answer to this is a work in progress, but presently cumulative evidence relating to three aspects is required:Footnote ⁷⁴

1. (a) contemporary reputation;

2. (b) historic reputation; and

3. (c) the history of the product, including the specific production techniques which gave rise to the distinctive product within that region.

The three aspects are interrelated and overlap with each other. Therefore, contemporary reputation can be gauged by resorting to familiar categories of evidence (consumer surveys, sales figures, trade opinion, etc.) that are similar to the trademark or unfair competition approach. However, there is an important difference. The purpose here seems to be to measure continuity, or ongoing vitality, as opposed to the extent of the product’s fame or renown. Thus, it should be proved that the designation continues to function as a GI for consumers in at least the country of origin. In turn, continuity suggests that the present reputation rests on the product’s historic reputation. One of the central tasks here is to identify the characteristic features which set this product apart – characteristics which have made it distinctive when compared with similar cheeses or textiles or crafts. These characteristic features have sustained the product’s historic reputation over time. The purpose of the historical analysis is therefore to establish a basis for the product’s reputation – which is attributable to its distinctive features. Finally, regarding the product’s history, the aim is to identify a causal connection between the product’s distinctive or characteristic features, which have sustained the historic as well as contemporary reputation, and the natural and/or human factors within the geographical region of origin.

For reputation-based GIs, this often involves the identification of specific production techniques (human factors) and an explanation for why they historically developed within that region, in response to environmental, socio-economic or cultural conditions specific to a place. The reputation link can be restated as follows: (a) contemporary reputation builds upon (b) historic reputation, which accreted over time around the specific or distinctive features of the product, and (c) these features of the product in turn were causally attributable to natural/human factors specific – but not necessarily unique – to the region of origin.

This is the ‘turn to history’ alluded to in this chapter’s title. The historical evidence required by stages (b) and (c) is directed towards identifying the ‘first uses of the name, accompanied as far as possible by the first descriptions of the product’.Footnote ⁷⁵ The historical evidence should link the name of the product to a specific geographical region through the context surrounding the uses of the name. It should also identify the distinctive features of the product, which give the product a stable core of identity over time, and this provides the foundation for developing a reputation. Bérard and Marchenay identify some of the sources that can substantiate this.Footnote ⁷⁶ While documentary sources are helpful, a local product may have only been known in the region of origin or have been produced primarily for domestic consumption, thereby leaving few textual traces. Oral history can therefore fill in the gaps or even provide much of the basic data.

The oral history of a product can be compiled through multiple interviews across the product’s supply chain and with members of the local community. In terms of documentary sources, of

These sources should be cross-referenced with local-level economic data relating to production where possible. There is of course a difference between a rigorous historical approach, which adopts valid historiographical and methodological techniques, and an instrumental account, which selectively dips into historical materials to tell a partial story or which embraces mythological origins.Footnote ⁷⁸

This approach to ‘essentially attributable’ reputation is evident for PGIs in the EU, as some recent registrations have illustrated. Take the example of the ‘Polvorones de Estepa’, a soft and crumbly Spanish Christmas confection (shortbread) made from flour, sugar, milk and nuts from the city of Estepa in Andalucia.Footnote ⁷⁹ Its product specification states that the ‘link between “Polvorones de Estepa” and the geographical area is based on the product’s reputation. That reputation is over a century old. In that time, the confections have been made to the same recipe.’Footnote ⁸⁰ Historical materials are used to establish that (i) an identifiable or stable product recipe has existed for some time; (ii) the product has enjoyed a reputation for some centuries; and (iii) confectioners were employed in that region to meet the demand from Seville and Madrid (making this a socio-economic origin story).Footnote ⁸¹ Documentary sources draw on the archives of a convent, which includes old recipes; the contributions of an individual confectioner (e.g. a method of baking and a process of refining and toasting the flour) who provided what would become the modern template; evidence of product sales dating back to 1959; and more recent (1980s and 1990s) references from the press, especially around the time of Christmas, as well as the product’s inclusion within inventories of traditional foods.Footnote ⁸²

Another product that illustrates the historical approach to reputation is ‘Carnikavas nēģi’ for fresh or cooked Latvian river lampreys.Footnote ⁸³ The specification states that the ‘link between the product and the geographical area is based on the reputation of “Carnikavas nēģi” and the skills of the local fishermen and fish processors who preserve ancient traditions and methods’. Since fishing was a major source of income for the region, special techniques were developed to discover optimum fishing spots based on knowledge of the habits of the fish, influence of weather conditions and the need to adapt to the river changing its course. Ensuring that fishing practices favour sustainable fish stocks is also recorded in the specification. The specification very clearly claims that the product’s reputation, which can be traced back to the seventeenth century, is attributed to the human skills – relating to both fishing and processing – which have been passed down through the generations: ‘The taste characteristics of “Carnikavas nēģi” are connected with the skills of the residents of Carnikava in catching and preparing them; these skills have been preserved since the 17th century and are based on manual work and experience.’Footnote ⁸⁴

Therefore, this more overtly historical approach to the product emphasises the human contribution. Bérard and Marchenay underscore this by saying that

Bringing human skills into the frame – via the link requirement, where the natural and human factors in a region have a causal influence on the distinctive features of the product – implies that we should be concerned with ‘living history’. Mere long-standing production in a region is not sufficient; it is the human skills and techniques which give the product its distinctive features over time, and there is often a place-based explanation for how and why these skills and techniques arose and have adapted. Consequently, the human contribution has a normative dimension. Such products deserve protection because of the collective, inter-generational transmission of savoir faire, or potentially because local products help to actively make the place itself.Footnote ⁸⁶

5 Conclusion

For a legal regime initially founded upon a causation narrative drawn from physical geography, the turn to history is admittedly difficult but also contains intriguing possibilities. The purpose of this chapter was to set out a more GI-specific approach to reputation, by asking when it ought to be essentially attributable to the place of origin. This historical turn is worth engaging with because in the absence of a more appropriate reputational link between product and place, sui generis GI protection becomes unjustifiable. If contemporary commercial reputation becomes the benchmark, the boundary with trademark or unfair competition law breaks down and the justification for GIs, as a separate regime based on the causal connection between product and place, collapses.

Two concluding case studies illustrate the danger of adopting a simplified notion of reputation. In 2006, JAM NAGARFootnote ⁸⁷ was applied for as a GI for petrol, fuel, liquefied petroleum gas and diesel-related goods before the Indian GI registry. The applicant, Reliance, had established what it claims is the world’s largest fuel refinery complex at Jamnagar in Gujarat, in western India.Footnote ⁸⁸ The refinery complex had won awards and the applicant alluded to the superior (technological) quality of its refinery processes, which it claimed had earned the refinery complex a positive contemporary reputation. However, nowhere did it explain why a sign designating a relatively new and highly industrial complex could satisfy the ‘essentially attributable’ requirement on the basis of quality, characteristics or reputation. This seems to be a clear case of contemporary commercial reputation being a sufficient basis for GI registration.

The second case study relates to an ongoing dispute at the time of writing, concerning the PGI ‘Piadina Romagnola’, a flat bread made in the area around the Italian Adriatic coast of the Romagna Riviera.Footnote ⁸⁹ The dispute is complicated and involved a challenge both to the definition of the geographical region by a producer excluded from it and by small-scale ‘kiosk’ producers of piadene sold in side-street outlets.Footnote ⁹⁰ In an appeal to the CJEU seeking to cancel the PGI, it was noted that ‘these organisations disputed the fact that, for the purposes of the envisaged PGI, industrially-produced piadine were being treated as equivalent to piadine produced on a small-scale basis and sold in street-side outlets’.Footnote ⁹¹ Despite these objections, the Italian authorities registered the application, which allowed the industrially produced flat bread to use the PGI, thus ignoring the history in the product specification which records that small-scale, artisanal production is what gave rise to the reputation in the first place.Footnote ⁹² The historic basis for reputation should inform the definition of acceptable production techniques, whereas in this case the reputation is instead viewed as an autonomous, commercially valuable intangible. Such a reputation can certainly be protected as certification marks or against unfair commercial practices, but not as a GI insofar as a meaningful link to the region of origin is required. The proposal considered in this chapter is suggested as one plausible method of satisfying that link to origin for products with a reputation.

1 Introduction

Among the various fields of intellectual property, geographical indications (GIs) law is arguably the smallest in terms of economic importance and the most complex in terms of principles and justification. To get a sense of the relative importance of GIs, in 2012–2013, India had over 43,000 patent applications, over 8,000 design registration applications, over 194,000 applications for trademark registration, but only 24 applications for protection of GIs.Footnote ¹

While GI law is rooted in the idea of terroir (a concept we consider below), discussions about GI protection can bring in strands of trademark law, unfair competition, agriculture policies, rural development, environmental protection, and – more distantly – protection of traditional cultural expression and traditional knowledge. These connections can easily lead to simplistic and sometimes false narratives about the potential benefits from different sorts of legal protection of GIs. This chapter describes some of the forces benefiting and burdening effective GI labeling with today’s consumers.

Because those consumers do show an interest in geographic origins, despite the occasional hype, GIs can be – in many circumstances – a useful tool in raising rural incomes in developing countries. Because GI-based marketing can help developing farmers, properly calibrated legal protection of GIs should be part of a “development agenda” for jurisdictions with significant rural economies. In that spirit, this chapter lays out some of the factors determining whether and how GI marketing (and GI legal protection) can help any particular rural region. With those issues in mind, we will consider a few specific examples.

2 Geographical Indications and Terroir

“Geographical indications” is an umbrella term for the various legal mechanisms used to protect geographical designators that tell consumers both the geographic origin of a product and something about the product’s quality and characteristics. The legal standards of protection vary as does the moniker used to designate the protected name (“appellations of origin,” “protected geographical indication,” “protected designation of origin,” “collective mark,”Footnote ² etc.). Whatever the name used, true appellation laws – and now geographical indications laws – have been traditionally justified by the idea of terroir: that a particular land is a key input for a particular product. The terroir idea is that the product’s qualities “come with the territory” and that there is, as I have described elsewhere, an “essential land/product qualities nexus.”Footnote ³

For example, the French government’s Institut national de l’origine et de la qualité (formerly the Institut national des appellations d’origine) explains an appellation d’origine contrôlée (AOC) this way:

In the context of wine (but in concepts that apply broadly), terroir can be understood as “the environmental conditions, especially soil and climate, in which grapes are grown and that give a wine its unique flavor and aroma.”Footnote ⁵ As one Australian wine critic has written: “terroir … translates roughly as ‘the vine’s environment[,]’ but has connotations that extend right into the glass: in other words, if a wine tastes of somewhere, if the flavours distinctly make you think of a particular place on the surface of this globe, then that wine is expressing its terroir.”Footnote ⁶

The terroir theory in this classic form has always been somewhat “cultural” and largely ignored in many quarters of the agricultural sciences. In his seminal 1947 The Soil and Health, Sir Albert Howard – one of the fathers of modern organic farming – does not mention any such concepts.Footnote ⁷ In 302 pages detailing how to produce better crops of coffee, tea, cotton, cocoa, wheat, tomatoes, and various fruit, Howard’s concern is the general quality of soil and maintaining soil fertility through natural means, but he never takes up the question of whether enduring variations in soils and climate would produce enduring variations in foodstuffs.Footnote ⁸ It simply wasn’t an issue for the science-minded but contrarian Howard.

More and more, we understand that the most factually sound “terroir” is microclimatic, i.e., that each field (or small cultivated block) is its own terroir based on particular soil composition, relationship to sunshine, wind, rainfall, and drainage. In other words, single appellations are rarely consistent in key geology, flora, and climate. In fact, the larger the appellation, the more the variation. Geological studies have shown between ten and sixty soil types for the AOC Alsace grand cru.Footnote ⁹ Discussing “Bordeaux” as an appellation, Thierry Desseauve has noted that it “represents all forms of terroir, all kinds of microclimates, all situations, and finally all kinds of wines and prices.”Footnote ¹⁰

Similarly, the United States’ designated “American Viticultural Areas” (AVAs) are probably just “too big … to have real viticultural meaning.”Footnote ¹¹ But this is genuinely a problem for appellations of all sizes. One French wine guide notes that within the Le Minervois AOC (a small region) there are four regions that are differentiated from each other by their terroir and climate.Footnote ¹² Many northern California vintners have studied soil and slope characteristics to the point of dividing individual vineyards into “flavor blocks,” i.e., miniature terroirs that are viticulted differently.Footnote ¹³ Even in the case of salmon, writer Rowan Jacobsen observes that each particular stream may be its own terroir,Footnote ¹⁴ undermining any terroir meaning to “Alaskan” or “Norwegian” salmon.

But if this is the reality of terroir, appellations like “Bordeaux,” “Napa Valley,” or “Burgundy” make little sense from a terroir perspective. Nation-wide appellations like “Feta” or “Irish whiskey” make no sense at all. Large (but not too large) geographic areas like “Idaho potatoes,” “Parma ham,” and “Melton Mowbray Pork Pies” may make sense from the perspective of consistent cultural traditions, but the problem is that those traditions are transportable – a contentious point underlying the Europe/New World feud over GIs.

Not surprisingly, over time, there has been a loosening of the connection between terroir and GI law. The 1958 Lisbon Agreement requires that a product’s “quality and characteristics” be “due exclusively or essentially to the geographical environment” while recognizing that “human factors” could contribute to this equation.Footnote ¹⁵ In contrast, the definition of “geographical indications” in the TRIPS Agreement requires that the “given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.”Footnote ¹⁶ The 2015 Geneva Act revising the Lisbon Agreement offers two different definitions of a protectable GI: one mimics the TRIPS “geographical indication” definition while the other recites the 1958 Lisbon formulation but adds “and which has given the good its reputation.”Footnote ¹⁷

No one knows whether there is any difference between product qualities being “essentially” or “exclusively” due to the land, so it is unclear what the loss of “exclusively” means. What is clear is that the addition of “reputation” to the legal definitions could, broadly read, obviate any land/qualities connection of the sort that has been fundamental to the notion of appellations.Footnote ¹⁸ As Irene Calboli writes, this “allows GI producers to partially ‘de-territorialize’ the production of GI-denominated products” and “this partial ‘delocalization’ runs against the very rationale for GI protection – the linkage between the products and the terroir.”Footnote ¹⁹ And this is exactly the case with some GIs, such as the United Kingdom’s “Melton Mowbray Pork Pies” and India’s “Feni” liquor.

3 Geographical Indications Protection – Magic-Like Claims, Unproven Results

If the justification for legal protection of GIs has shifted in recent years, the strength of the European Union’s advocacy for GIs – mainly on behalf of France and Mediterranean Member States – has not. Here is an example of the European Commission’s claims about GIs in a more somber moment:

This statement is unimpeachable: GIs do “matter,” “can” do the things claimed, and appear to “support” rural development.

But at other times the Commission takes a more rhetorical tack. For example, a 2012 study commissioned by the European Union found that for 2,768 GI products from 27 EU countries in 2010 “[t]he average price premium for GI products was found to be 2.23, which means that GI products were sold 2.23 times as high as the same quantity of non-GI products, which shows that using GIs can achieve a higher market price.”Footnote ²¹

Of course, the evidence does not “show” that. Even if all the data are correct, what we have is a correlation (not causation) between GI protection and higher prices for GI products as compared to non-GI products in the same categories. Perhaps products bearing GIs command a price premium because they simply are, on the whole, better – with or without the GI labeling; or perhaps the products bearing GIs command a price premium because they are simply more famous, with or without the GI labeling; or perhaps they are better advertised. Ironically, the higher average price may even be because of non-EU demand for the GI-labeled products in jurisdictions that do not provide the heightened level of legal protection that the European Union claims is necessary (i.e., demand in the United States, Japan, China, etc.).

A more extreme claim is found in the 2009 “Teruel Declaration” of OriGin, an NGO dedicated to promoting GIs:

This passage is well beyond the usual overstatements from trade associations or nonprofits. Instead of focusing on increased price premiums (even without a causal analysis), OriGin makes a blanket statement that GIs “provid[e] jobs for millions of individuals” – as if the underlying products themselves would not sell at all without the GI protection. Unfortunately, some otherwise intelligent people buy into this kind of rhetoric. In a 2005 paper presented at a World Intellectual Property Organization (WIPO) meeting, a Kenyan government official reasoned that “GI protection would transform African farmers from raw material producers to exporters of differentiated products easily identifiable in the global marketplace”Footnote ²³ and argued that GI protection against usurpation or dilution would “benefit” dozens of local Kenyan products – even though these products are generally unknown in developed economies.Footnote ²⁴

4 The Good and Bad of Geographic Origins Marketing

We should also recognize that GI-based marketing must respond to changing consumer tastes and concerns, only some of which benefit GIs.

5 A Complex Decision, Hopefully for Farmers

All of this produces a complex picture for policy makers who would help farmers in developing countries. One must assess the relative costs and benefits of different production and labeling practices that “de-commodify” local production. And that assessment has to be in the context of what is possible in that locale.

In the case of GIs – whether a sui generis system or a certification marks approach – one will need to define the geographic area for eligible production. This process can easily become highly politicized. Ironically, drawing the geographic boundaries should be easier when the GI seems to have little prospective reputational value. The next element is defining the production standards: ingredients, from where raw ingredients can be sourced, recipes, aging and fermentation practices, permissible technologies for distillation and/or storage, etc. As Dwijen Rangnekar notes:

In the case of certification marks, a private leadership group can pretty much establish their own production standards; in the case of sui generis GI law, the producers will have to work with government agencies in what will be extended, detailed public–private sector collaboration.

Central government involvement also raises two other very important issues: capacity and extraction of economic rents. Simply put, the central government may try to extract economic rents by controlling when the GI designation can be used and by whom. There is always a danger that the GI will be used to strengthen a government’s role in the market – and that may or may not help rural citizens. The capacity issue is also a serious one. For example, economist Tyler Cowen has observed that “[m]ost African nations simply cannot afford the requirements for safety, labeling, and control that European-style regulation imposes on them.”Footnote ⁵⁰

Fair trade and organic production and certification practices also impose a substantial burden in terms of training, labor, and community disciplines.Footnote ⁵¹ It may be that there is a broader international community of NGOs that can bring “off-the-shelf” organic, fair trade, and environmentally friendly production systems to rural communities, bypassing central governments. But there are also substantial efforts from the NGO community to help those who would pursue GI labeling.

Farmers, activists, and policy makers should also consider carefully the price differentials that different labeling produces. Discussions of organic, fair trade, and GI labeling are replete with claims about the higher prices that de-commodification brings, but we must focus on (a) whether farmers, rural workers, and rural communities are actually receiving the economic premiums, and (b) if and when higher production costs wipe out the value of those premiums.

With these issues in mind, let’s briefly consider three parables of de-commodification of developing country foodstuffs – Ethiopian coffee, Goan “Feni” liquor, and Papua New Guinea coffee.

6 Conclusion

GIs are a policy tool that can, in some circumstances, improve conditions in rural areas through price premiums paid for GI-labeled products. But the most important word in that sentence is “can,” not “will” or “do.” Instead of the simplistic promotion one hears from GI advocates, the United Nations Economic Commission for Africa’s 2016 study on IP policy struck the right tone:

That conclusion for African countries applies with equal force to the rural areas of Asia, Oceania, and the Americas. Those seeking to help de-commodify foodstuffs produced in developing countries must carefully examine each situation, including looking at the comparative costs and benefits that might accrue from fair trade, organic, or other labeling schemes. In short, the promise of geographical indications may be real – but it is a limited promise, not a money-back guarantee.

1 Introduction: Hopes for Geographical Indications and Acknowledging Their Limits

Geographical indications (GIs)Footnote ¹ are widely perceived to provide prospects for new forms of rural development, community autonomy, preservation of cultural traditions, and even the conservation of biological diversity when the production of goods encourages the stewardship rather than the depletion of the natural resources from which they are made.Footnote ² They may also provide an effective means to protect traditional environmental knowledge (TEK) and traditional cultural expressions (TCEs),Footnote ³ enable the sustainable use of genetic resources, contribute to maintaining agricultural landscapes, and utilize TEK that might otherwise be lost.Footnote ⁴ Consequently, the European Union has promoted their extension across the Global South as a rural development strategy that, not incidentally, supports European interests in global trade.Footnote ⁵ Asian countries have seen in GIs a means to protect artisanal knowledge,Footnote ⁶ viewing human factors such as producer know-how, skills, and practices as linked to a particular territory and its means of production. The broader group of legal vehicles we refer to as marks indicating conditions of origin (MICOs) are attractive to development practitioners who hope to prevent social inequalities by creating community controls over economic activities that tie rural areas into larger markets and forge collective rights indivisible from locality.Footnote ⁷ For rural economies, GIs are extolled as providing “a physical and conceptual structure for affirming and valuing the unique socio-cultural and agro-ecological characteristics of a particular place”Footnote ⁸ which may have spillover effects that contribute to regional branding and foster tourism.

Nonetheless, there is considerable evidence that poorly designed GI systems negatively transform the conditions of production they are celebrated as sustaining.Footnote ⁹ Such systems have a tendency to conflate nature and culture and to uniquely depoliticize relations of production in their regions of application. The discourse advocating their adoption and celebrating their use relies on a “social imaginary” of place-based products that projects a harmonious community, represented “holistically, possessing singular traditions and rooted in a particular place characterized by a naturally bounded and distinctive ecosystem.”Footnote ¹⁰ This social imaginary binds traditions to territory through an Orientalist lens in which peoples collectively share narratively romanticized bonds to a natural environment shaped by their labors into an authenticated place. The use of GIs tends to imbue products with distinct attributes that simply reflect local biodiversity and cultural distinction, both presumed to be isomorphic with a community. Thus a stable, unified, and harmonious place is ideally imagined, represented, and, ultimately perhaps, even experienced. In neoliberal terms, this is a “win-win” scenario where tradition, culture, and knowledge are simply integrated into global markets and legally protected in a global trading system. This social imaginary presumes a unified community that will receive uniform benefits from its use, a scenario which usually has little factual basis, as we have explored elsewhere.Footnote ¹¹

Diverse stakeholders in supply chains are assumed to all share similar interests in developing a region’s reputation through the marking of distinctive goods. Nonetheless, GI premiums are rarely shared equitably, particularly in the Asian context, where traders are treated as if they are producers and constitute the most powerful actors in the value chain.Footnote ¹² As Basole’s fieldwork in the Banaras textile industry revealed, artisans see very little of the GI premium and the system does little to assist those facing destitution.Footnote ¹³ It is interpreted in a way that imposes outside notions of authenticity, prevents the community from innovating, and is biased toward distributing value toward merchants and traders.Footnote ¹⁴ GIs imposed from the top-down tend to favor more powerful actors. Benefits rarely trickle down to small producers or individual artisans; traders and master weavers with bargaining power in the supply chain are often the primary beneficiaries of increased revenues in a cottage industry in which it is very difficult for traditionally non-weaving castes to find any access. Consumers often have little or no idea of who the producer is, and producers have scant information about how their products are marketed.Footnote ¹⁵

Such limitations of GIs in practice are not unique to the South Asian context. State-driven GI strategies that focus primarily upon increased productivity and export earnings tend to further deprive small producers and privilege industrial elites wherever they are introduced.Footnote ¹⁶ Even in the European context, experts caution against the general promotion of GIs and urge attention to their governance when assessing their capacities to propel equitable rural development.Footnote ¹⁷ The oldest appellations of origin were developed to protect aristocratic traditions and continue to reflect class-based privilege, concentrate control over governance in small elites, restrict the upward mobility of smallholders, discourage the formation of or supplant co-operatives, and entrench poor agricultural working conditions.Footnote ¹⁸ Many MICO regimes have reduced rather than increased local biological and cultural diversity.Footnote ¹⁹ Moreover, the dominant social imaginary offered by proponents for GIs tends to be localized in activities of marketing, which do not merely misrepresent social realities but shape them, naturalizing hierarchical labor relationsFootnote ²⁰ and influencing the ways stakeholders come to understand their relationships to these products.Footnote ²¹ Although marketing strategies are ideally formulated with the input of various stakeholders in the supply chain, the most well-connected corporate producer bodies and owners of large agricultural holdings have the greatest influence, shaping these narratives in ways that reinforce their privileges. Rather than merely promoting unique differences that pre-exist them, “GIs are being cultivated to promote products, processes and methods traditional to places, and traditions are being cultivated to support these marketing vehicles.”Footnote ²²

Given the diversity of current GI regimes, few generalizations about their promise or performance as a global category seem warranted without greater empirical study of the actual conditions governing their use. Local regulatory mechanisms need to be analyzed within a broader scope of inquiry that is attentive to local conditions of class, ethnicity, and gender. Most academic scholarship ignores the social relations between workers, landowners, producers, and the degree to which MICO institutions represent their respective interests. Few scholars studying GIs consider political movements for decolonization or postcolonial forms of emancipation. In the South and Southeast Asian context, we should consider the propensity of GI governance to challenge or to further entrench patterns of plantation agriculture, peasant dispossession, and the legacies of exploitative labor relations. In this chapter we show how current uses of MICOs encourage tendencies toward socio-economic marginalization, reinforce local divisions of labor, and obscure colonial patterns of landholding. If the World Intellectual Property Organization’s development agenda is to have any meaning, we need to focus on MICOs as forms of local governance, and ask to what extent they might govern differently – to challenge rather than reinforce entrenched social hierarchies,Footnote ²³ contribute to rights-based development,Footnote ²⁴ or achieve social justice objectives.Footnote ²⁵

We will first describe some of the ideological tendencies in MICO rationales and consider how a famous GI, Darjeeling Tea, is used to protect goods considered traditional to a region in India. We then provide some insight into contemporary Southeast Asian political ecology to show why MICOs and their governance should be considered matters of pressing global concern. Finally, we explore emerging politics, practices, and policies in value chain governance that might ground Asian MICOs in alternative norms to meet the needs of wider constituencies while advancing environmental as well as social justice objectives.

2 Existing Landscapes of Geographical Indications: Darjeeling Tea

The Darjeeling Tea GI is widely celebrated as having extended IP-based justice to the Global South;Footnote ²⁶ it was the first of India’s now over 230 registered GIs.Footnote ²⁷ There is no doubt that it has been a marketing success in raising export earnings. The Tea Board of India controls this GI as a form of national IP, designating select plantations as natural garden homes for a unique tea, based in a terroir constituted primarily, we would suggest, through tropes of enchantment. Anthropologist Sarah Besky collected hundreds of Tea Board papers like this one:

It is easy to dismiss such romanticism as mere advertising, but Besky draws our attention to the labor conditions that support it. So-called “Indian” Darjeeling Tea is picked nearly entirely by Nepali-speaking women, descendants of the indentured women from Nepal who brought this tea and their knowledge of its cultivation to a region that was incorporated into India in 1947. In the GI campaign, gendered, arduous, and exploitative industrial plantation toil (still locally disparaged as “coolie” labor) is erased, replaced by the craftwork of angelic guardians whose TEK is deployed in their gentle care of tea gardens – where they are naturally placed and affectively bound. To cite another Tea Board advertisement, “Perhaps it is the warmth of their touch which gives the brew such sweetness.”Footnote ²⁹

This advertising imagery has a real impact on people’s lives and livelihoods. Besky reminds us that Darjeeling Tea is understood as national cultural patrimony, intangible cultural heritage, and the basis for a new industry – tea tourism – in which women are disciplined to “perform” the smiling docility of the GI’s social imaginary. These women make $1 a day, work sixty-hour weeks, and are tied to plantations by debt; they inherit rather than choose their jobs and are reliant upon plantation owners for housing, healthcare, schools, and access to subsistence plots on environmentally degraded lands. In neocolonial, patriarchal labor conditions, such widespread gendered representations warrant serious consideration. Do they improve or undermine workers’ capacities to critique conditions of production or to articulate ways to transcend them? To the extent that such branding supports a new industry whose profitability is dependent upon meeting tourists’ expectations, to what extent will the capacities of women to transform their less than idyllic working conditions be enhanced?

The GI region comprises eighty-seven plantations, populated by semi-bonded labor; many were revived by the GI. It is not co-extensive with the Darjeeling district of West Bengal, where the same tea is cultivated by Adivasis (tribal or indigenous peoples), who are wholly excluded from this new market. The indication also excludes Nepal’s own smallholder co-operatives – viewed as imitators from whom Darjeeling needs to be protected.Footnote ³⁰ Much of this tea is certified as fair trade, a practice that reproduces a patronizing narrative in which a Northern, modern, urban consumer savior provides an empowering lifeline for a Southern, traditional, impoverished, rural peasant.Footnote ³¹ Historically, fair trade certification disregarded disparities in gender, was not sympathetic to unions, and seemed to prefer peasant producers lacking any organization other than co-operatives.Footnote ³² Instead of bringing Western consumers closer to workers in a relation of greater justice, the administration of the Darjeeling mark creates greater distance between the female tea pluckers and consumers – some of whom are tourists dressing up as smiling tea-pickers to mimic the Tea Board advertisements (!). The workers have new jobs to add to their toil – posing for pictures and singing for visitors – captive creatures in a practice they describe as “turning the plantation into a zoo.”Footnote ³³

In neighboring smallholder plots, anthropologist Debarati Sen reports, Nepali tea pluckers also feel objectified:

These farmers criticize the nature of fair trade justice and empowerment because of its lack of support for their own efforts to improve their communities, contest local patriarchies, resist the domination of local middlemen, and engage in entrepreneurial activities to meet their family needs with dignity.

Historically, because these women were squatters on abandoned plantations, whose rights to the lands they worked were unrecognized, they could not access the state-subsidized, high-yielding Green Revolution technologies targeted for plantations. In short, they learned to cultivate illegal tea with manure and homemade compost, a tradition of knowledge born of poverty and necessity. When, in the 1990s, organic tea was newly valued in global markets, plantations were forced to give up chemical fertilizers; their productivity declined 30 per cent. To augment supplies, plantation managers made agreements with these illegal producers who were assisted by NGOs to register themselves and market their tea as “co-operatively produced” rather than become wholly subsumed under the plantation labels.

Although nearly all of this tea is farmed by women, the advent of global consumer interest prompted underemployed local men to seize these new opportunities, quickly assuming management of the co-operatives as middlemen with the new international agencies. Controlling the new profits, they invested these in ways that did not support or provide benefits to the women whose labors had sustained the organic production from which the community was now benefitting. Women’s efforts to diversify the local economy received no assistance and their organic quality-control work attracts no compensation. The men do not use any part of the fair trade premium to support female entrepreneurial activities; indeed, women are sexually shamed for engaging in such immodest work. Nevertheless, they still consider themselves far better off than the female plantation workers whose celebrated labor supports the GI.

Certification bodies, then, need to attend to the local dynamics that affect exclusion and marginalization. Fair trade certification still has a long way to go in making all stages in value chains transparent; labor relations are notoriously difficult to discern and improve.Footnote ³⁵ A heated global debate has emerged in which Fair Trade USA (which wants to expand fair trade’s certification to more plantations) has splintered off from the Fair Trade Labelling Organizations International (FLO). The move has been criticized by the group Equal Exchange as a dilution of the fair trade ethos because it enables large corporations such as Nestlé and Starbucks to represent more of their products as ethically produced.Footnote ³⁶ The distinction between smallholders and plantations, however, is only one way of addressing the “proper laboring subject of fair trade.”Footnote ³⁷ Fair trade was originally an agricultural justice movement forged through “bottom-up partnerships between Latin American [smallholder] coffee producers and Northern activists.”Footnote ³⁸ In the Indian tea industry, however, it was implemented in a largely top-down fashion.Footnote ³⁹ Fair trade in Asia is not linked to political struggles amongst plantation workers, and neglects the colonial legacies of a feudal order in which large holdings with absentee owners produced largely non-indigenous crops for colonial elites with the inadequately compensated labor of racialized and socially marginalized peoples.Footnote ⁴⁰

If inclusion of plantation-based goods in fair trade incorporates these goods into a market, it does little to provide any form of political recognition for plantation laborers. It appears to exclude them into the “global community of solidarity and interdependence” between producers and consumers that the fair trade movement propounds as an alternative to global capitalism.Footnote ⁴¹ Plantation workers are denied representation and voice in the framing of transnational justice by Fair Trade USA, which insists upon describing industrial agricultural enterprises as “farms” to avoid issues of land tenure and labor organization.Footnote ⁴² Equal Exchange ignores the historical forces which have divided peoples into those who have the opportunity as landholders to cultivate crops and co-operativize, and those whose political marginalization was more deeply entrenched by colonial rule, while ignoring gender and ethnicity:

Both co-operative and plantation workers are linked as much by their shared struggle for representation within the Indian state as by their experience of economic hardship.Footnote ⁴⁴ Fair trade certification evades these political struggles and thereby “ignores – and by extension reinforces – the deep-seated ethnic marginalization that has sustained the Darjeeling tea industry for nearly 180 years.”Footnote ⁴⁵ Such selective political attention, however, is not necessary to certification systems; alternative forms of transnational solidarity are possible. In order to address other forms of oppression based on cultural, linguistic, ethnic, and gender identity, however, GIs must attend to the ways in which people make their own claims and give voice to their needs. As we shall explore, this concern with representation and voice is precisely the way in which new MICOs are evolving. In the meantime, hundreds of thousands of people across Asia are being pushed into plantation agriculture under conditions that promise to exacerbate climate change, rural insecurity, and human rights abuses.

3 The Crisis of Biocultural Diversity in Southeast Asian Political Ecology

4 Future Landscapes for MICOs

The term “conflict palm oil” brings consumers’ attention to their own complicity in Asian conflicts, because palm oil is ubiquitous in manufactured household food products such as cookies, instant noodles, and potato chips. There are no consumer markets in the world in which everyday goods do not contain this oil.Footnote ¹³⁷ The conditions of palm oil plantation have attracted international attention; activists pressure the largest purchasers in the global food industry to adopt more responsible practices. As a consequence:

The Snack Food 20 could fundamentally transform palm oil production by supply-chain mapping and monitoring, developing procurement policies for the protection of rainforests and peatlands, respecting the rights of communities to give or withhold FPIC to land development, insisting that plantation lands be acquired only from those who hold title, respecting workers’ rights, eliminating child labor, banning burning and reducing greenhouse emissions, including smallholders in supply chains, and practicing equitable benefit sharing.Footnote ¹³⁹ Given the growing conflicts between companies and communities and the increasingly dire ecological crisis fuelled by palm oil intensification, third-party verification of compliance is urgently needed.

Many companies surpassed the inadequate standards of the RSPO, committing to ambitious deadlines for cutting suppliers trafficking conflict palm oil by the end of 2015 (which were largely unrealized). When Kit Kat bars were clearly linked to rainforest destruction in Indonesia in 2010, Nestlé began verifying that its sources were not associated with destruction of high conservation value and high-carbon stock forests. Far less has been done to protect labor rights. Unilever recognized that it had a palm oil problem after Dove personal care products were similarly exposed in 2008, but its 2013 commitment allegedly lacked “both clear requirements and a deadline for suppliers to end destruction of rainforests, peatlands and abuse of human and labour rights in all operations.”Footnote ¹⁴⁰ Some corporations have released stronger commitments since 2013, while others, such as Hormel Foods and Kraft Heinz Company, still inadequately pressure suppliers; PepsiCo could play a vital role in transforming the worst conditions in Indonesia and Malaysia.Footnote ¹⁴¹

Ultimately, environmentalists want a moratorium on the clearance of forests and development of peatlands, halting further expansion until comprehensive assessments identify the conservation and climate change values of these regions. Others seek to ascertain whether indigenous peoples and local communities are fully consenting to palm oil development on their customary lands, and to ensure protection of their water sources, food systems, and livelihoods.Footnote ¹⁴² Certification regimes need to find means of identifying suppliers operating plantations on lands acquired through coercion. The transformation of global palm oil supply chains will be a massive undertaking, in which corporations must assume new forms of transnational governance. Through such chains, nearly all consumers are linked to Asian indigenous peoples and become complicit in their dispossession. Even if some of the proposed certifications are developed and implemented, new MICOs must be forged to meet environmental and human rights objectives.

Contemporary struggles around private standards and certifications for goods have become much more conscious of their capacity to represent interests, uphold power relations, provide representation, and engender voice.Footnote ¹⁴³ Interest in the institutional dimensions of value chains has put new emphasis upon how local actors engage them and shape their structures, processes, values, and outcomes.Footnote ¹⁴⁴ Increasingly, labor, food safety, and agricultural practice standards are converging, with workers and small producers recognized as active participants in tackling social and environmental problems. The United Nations Research Institute for Sustainable Development, for example, has focused on Social and Solidarity Economy approaches to production and exchange, which share explicit economic and social objectives:

This new model addresses sustainability and labor issues at a landscape or industry level.Footnote ¹⁴⁶ It develops and influences standards rooted in the capacity of workers and smallholders to articulate their own needs in a variety of forums, public and private, building multi-scalar alliances that create pressures for change, while engaging external actors as brokers and facilitators to help communities realize social and economic aspirations. Another key shift is the recognition that global value chains operate within territorial institutional dynamics. Creating change involves engaging key actors to work collaboratively across a sector on multiple issues, moving beyond farm-level interventions to landscape and industry-wide initiatives.Footnote ¹⁴⁷

Such private regulatory vehicles are likely to be ineffective in the absence of public regulatory standards, because they attempt to redistribute benefits in a way that conflicts with the local constellations of power and interest reflected in public policies. Few would argue that forms of certification will substitute for recognition of indigenous title; critics suggest that certifying products emerging from regions characterized by land conflicts ratifies bad policies and weakens customary rights claims. Certification may redistribute benefits but doesn’t provide public accountability; it may extend “the extraction of resources without conferring effective forms of redress or recognition on groups claiming resource rights.”Footnote ¹⁴⁹ In the absence of community rights, companies have enormous bargaining power and communities often settle for what they can get. Oil palm certification, for example, continues to be dominated by industry, does not apply throughout the whole value chain, and finds no demand in large consumer and manufacturing markets such as China and India. Such certifications do, however, publicize local conditions and provide opportunities for new forms of political pressure toward these ends.

Gender equity is increasingly considered in mapping value chains that follow plantation crops.Footnote ¹⁵⁰ Proponents of certifications to enhance social justice insist that the entire value chain must be considered if equities are to be secured,Footnote ¹⁵¹ which must include employment conditions, too often overlooked in fair trade justifications and in MICOs more generally. Certifications must address conditions of both formal and informal employment as well as the impact of conditions of production upon women’s reproductive work.Footnote ¹⁵² In regions where development has devolved to municipal authorities, old plantation industries such as tea (which have both a female labor force and a female consumer base) have been receptive to new certifications.Footnote ¹⁵³

It is unlikely that MICOs will develop in a fashion that is more equitable to small producers, more sensitive to gender relations, or more attuned to biocultural diversity without collective organization, greater differentiation amongst marked products, and considerable transnational support.Footnote ¹⁵⁴ More relational forms of institutional support need to be developed in process-based approaches to GIs, to avoid them simply becoming forms of geographical branding.Footnote ¹⁵⁵ Although it is often assumed that such supports must come from states, a number of initiatives indicate that transnational relationships between organized civil society groups may fulfill similar functions. Self-determined forms of certification link producers and consumers in transnational networks of solidarity. Many small-scale producer co-operatives have withdrawn from Fair Trade USA, for example, because producers get little input into standards of certification that don’t consider the circumstances of their lives.Footnote ¹⁵⁶ A new Small Producers’ Symbol (Sı´mbolo de los Pequen˜os Productores – SPP) certification system under the Latin American Fair Trade network began certifying groups in 2011, using standards for production created by small producers attempting to address their everyday socio-economic issues; “in assessing standards, the SPP attempts to create direct relations and dignified living through dialogue – articulated as an economy of trust.”Footnote ¹⁵⁷ Significantly, geographer Lindsay Naylor argues that this MICO “creates new ways of participating in economic activities and performing economic identities that are focused on place-based ways of living” and suggests a geographical basis for such indications.Footnote ¹⁵⁸

Initiatives to counter gender discrimination and to forge networks of female solidarity may be driven by producers and workers as well as by consumers.Footnote ¹⁵⁹ Café Femenino, for example, is a Fair Trade coffee brand developed in the Andean foothills of Northern Peru, under which multiple capacity-building gender empowerment projects are clustered.Footnote ¹⁶⁰ Members of a female-owned co-operative grow the coffee on lands owned by women, which supports community development initiatives in health, literacy, transportation, and youth employment. Use of the Café Femenino mark accrues an extra two cents a pound for the women and the same amount again for the community foundation.Footnote ¹⁶¹ Profits are also distributed to a women’s shelter and crisis foundation, as well as women’s hospitals and a breast cancer research foundation in Canadian consumer communities.Footnote ¹⁶² The ethical aspect of the added value that this MICO creates is deliberately extended through the entire supply chain. The economic benefits have encouraged families to put more land in women’s names, securing greater economic independence and more equity in local gendered divisions of labor.

Another prospect is provided by alternative food networks, wherein civil society groups mobilize “to vindicate the cultural value of food in terms of taste, its conditions of production and its ecological and cultural dimensions as part of the landscape that supports the economy of the smallholder family.”Footnote ¹⁶³ They promote local vernacular economies and self-governance through voluntary certifications. Largely involving producers and consumers in close proximity, such initiatives centrally involve women as farmers, mothers, food providers, and monitors of family nutrition and health who are concerned with agrochemicals, genetic modification, and labor conditions to create relationships of trust between producers and consumers in processes of food governance that are more democratic than those provided by third-party certifications.Footnote ¹⁶⁴ Alternative food networks often involve female smallholders engaged in multicropping and the preservation of native plant varieties and are dominated by women who understand the integral relationship between agriculture, territory, and food. They offer intriguing possibilities for translation and adaptation in Asian contexts.

There is also hope that “GI production systems based on well-managed extractive activities [can be used to] promote the conservation of natural vegetation and forested areas with benefits to ecosystem and landscape conservation,”Footnote ¹⁶⁵ and biocultural diversity treated as “an asset that can be developed through GI differentiation.”Footnote ¹⁶⁶ For example, forest biologists, agricultural scientists, and ecologists argue that a landscape with a reputation as a well-managed sustainable environment rich in biodiversity is one that can support a GI for a production system that maintains biodiversity.Footnote ¹⁶⁷ Such “green GIs” are most successful when they are initiated by local producers, give biodiversity objectives primacy, and provide specifications for their use that prioritize local environmental practices.Footnote ¹⁶⁸ Nonetheless, it is doubtful that benefits will be realized in countries where institutions for supply-chain governance are weak, trends toward agroindustrialization are already established, and there is little state support for local organizations or community governance.Footnote ¹⁶⁹ Again, new forms of support and collaboration will be essential.

One final set of values that might inform new initiatives for developing MICOs emerges from the growing recognition of biocultural rights. Norms linking biodiversity maintenance and TEK protection have been evolving under the auspices of the CBD since 1992. In countries where the indigenous status of minority ethnic groups is precarious, unacknowledged, or refused, the relationship between “traditional” peoples, local communities, and natural environments is recognized through an acknowledged interrelationship between biological and cultural diversity. Biocultural diversity has emerged as a hybrid good to be pursued in support of the livelihood resources, identities, and political interests of local communitiesFootnote ¹⁷⁰ alongside political principles of FPIC that fulfill state obligations to “take into consideration indigenous and local communities’ customary laws, community protocols and procedures when accessing TK associated with genetic resources.”Footnote ¹⁷¹

Biocultural community protocols are legal vehicles that indigenous peoples use in environmental and biodiversity negotiations to regulate the interface between international legal instruments and the locally held collective heritage resources that internationally ground indigenous rights.Footnote ¹⁷² Many social movements and UN bodies embrace these principles, but the prospect of marking goods and services as indicating places of origin that comply with these norms is only beginning to be explored. Means to verify compliance with the FPIC of indigenous peoples (which in many cases will be based on customary or “living law”) and to certify and communicate such compliance are still being devised.Footnote ¹⁷³ The International Institute for Environment and Development (IIED) Report considering “Intellectual Property Tools for Products Based on Biocultural Heritage” suggests that some types of GIs might be used by associations of small producers to recognize and support group rights; used appropriately and controlled by local communities, they can protect traditional methods, support sustainable development, and might be further developed to mark products “derived from the collective biocultural heritage of indigenous people.”Footnote ¹⁷⁴

Alejandro Argumedo argues that MICOs, collectively owned and run in accordance with community self-determined rules which correspond with customary law principles, offer real economic and political benefits to indigenous communities. In countries with state-held GIs, collective trademarks are better vehicles for indigenous communities but a new regime of “biocultural heritage indications” that builds upon this legal vehicle might “open up the current IPR [Intellectual Property Rights] system to millions of poor rural communities.”Footnote ¹⁷⁵ As this chapter went to press, the IIED, the University of Leeds, and Asociacion ANDES (Peru) were widely consulting experts on the best means to develop a biocultural heritage (BCH) indication regime for marking products and services.Footnote ¹⁷⁶

5 Conclusion

In this journey through tea plantations, oil palm frontiers, and tribal women’s gardens, we have attempted to illustrate that GIs and other MICOs have largely worked in Asia to hide or obscure racialized conditions of gendered labor. They have done little to illuminate the hidden and unappreciated work of conservation and biocultural regeneration that women do across the region. Nonetheless, MICOs which can be held and governed locally according to living law and rights-based development criteria and certified for new markets have the potential to be shaped in ways that respect and value the work that women do in rural Asia while contributing to the maintenance of those biocultural heritage resources which have traditionally sustained rural communities. New values are emerging for managing supply chains that recognize the environmental and cultural labors of women in ways that support their livelihoods. The adoption and adaptation of such models in Asian contexts should be welcomed and encouraged.

1 Introduction

In May 2015, a number of World Intellectual Property Organization (WIPO) member states adopted a new Act of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 1985 (Lisbon Agreement).Footnote ¹ A question that surfaced both during the negotiations and since the signing ceremony is whether this new Act will be palatable to countries using a common-law trademark approach for the protection of geographical indications (GIs) instead of the mostly European approach of using a sui generis (non-trademark) system.Footnote ² This question applies, for example, to several countries involved in the now likely defunct Trans-Pacific Partnership (TPP) Agreement but also in other regional trade arrangements including the draft Regional Comprehensive Economic Partnership (RCEP).Footnote ³

GIs matter on several levels. They have deep roots in the terroir, a French word designed to encapsulate a blend of land, tradition, and human know-how.Footnote ⁴ In the Geneva Act context, this raises a question, namely whether this notion of terroir is commensurate with modern international trade rules, at least as trade is practiced outside of Europe (in say, RCEP countries).Footnote ⁵ Terroir matters to many producers and many countries, and not just in Europe. In parts of the “Old World,” however, it is not an exaggeration to say that some countries link terroir to national identity.Footnote ⁶ Many so-called “New World” producers of wines, spirits, and agricultural products see things differently. While they also recognize the economic value of identifying the geographic origin for certain products – for example, in the United States (US), Florida orange juice, Idaho potatoes, Napa Valley wines, and Vidalia onions – they are concerned about possible restrictions on the use of terms they consider generic (meaning terms that, in their view, primarily describe a type of product, not its geographic origin).Footnote ⁷

Several developing country producers have similar concerns about the protection of foreign terms—often belonging to producers in former colonial powers -- that have become, or may become, generic in their country or region. Their situation is not uniform, however. Those who live in countries rich in traditional knowledge (many of which are developing countries), for instance, see the expansion of GI protection as a way to repair historical wrongs and, more broadly, as a way to de-Westernize intellectual property rules, which some consider systematically discriminatory because they favor Western methods of marketing and production and Western goods.Footnote ⁸ Several developing nations consider GIs as a way of protecting and globally marketing their rural and traditional products at a higher price, which they assert would lead to “development from within,” that is, “an alternative development strategy that prioritizes local autonomy and broad, community-wide development goals.”Footnote ⁹

GIs affect prices, though not for every product and not in a uniform way. There are examples that illustrate the capture of additional rents due to the (consumers’) perception of higher quality associated with certain geographical origins. For some products, this ties into – and may sometimes be confused with – “fair trade” labels and certification processes concerning the sourcing of an increasingly wide range of products, many of which come from the developing world (e.g., coffee, tea, cocoa, etc.).Footnote ¹⁰ Recent research also suggests that GI protection impacts food consumption patterns and can lead to shifts in agricultural models.Footnote ¹¹

GIs tend to focus production on a nation’s comparative advantage in making a product whose origin infuses it with a higher market value.Footnote ¹² As such, GIs may have a deep environmental significance and form an increasingly relevant part of agricultural and food policy.Footnote ¹³ It is not surprising, therefore, that the debate surrounding the protection of GIs has captured the attention of a number of consumer groups, many of which insist on proper labeling of products, notably to indicate their origin. Their insistence stems not only from a desire to buy more locally produced products and to reduce the carbon footprint of their consumption patterns but also from the “quality assurance” factorFootnote ¹⁴ associated with a number of GIs.Footnote ¹⁵

How does this translate into the Lisbon Agreement context? As of this writing (March 2017), no common-law jurisdiction is party to the Lisbon Agreement.Footnote ¹⁶ There are a number of reasons that explain this lack of enthusiasm. As this chapter elaborates in the following pages, many common-law jurisdictions use trademarks, collective marks, and certification marks to protect geographic symbols and names. This has a number of both normative and administrative implications, including use requirements, possible loss or diminution of right due to acquiescence and abandonment or genericness, and the payment of maintenance fees, to mention just the main effects. These characteristics define the gap that needs to be bridged between the Lisbon system and the common law. This chapter’s purpose is to explore whether the Geneva Act succeeded in building this bridge.

To do so, the chapter proceeds as follows. The first part briefly describes the functioning of the Lisbon system, and the second part compares the Lisbon system with the common-law system of protection for geographic identifiers as marks.

2 Geographical Indications under the Lisbon Agreement

3 Common-Law Geographical Indications

4 Conclusion

The adoption of the Geneva Act of the Lisbon Agreement was a clear chance to update the Lisbon Agreement to reconcile the Lisbon system on two fronts: doctrinally, with the common law; and administratively, by allowing countries that protect GIs under trademark law (often as certification marks) to continue to do so as Lisbon members. That did not happen, however, at least not clearly. The absence of consensus – indeed, the deep divide – at the Diplomatic Conference and the statedFootnote ¹⁰⁶ incompatibility of the Geneva Act with trademark-based GI systems are unlikely to prove productive in the short- to medium term for GI holders, authorized users of GIs, users of generic denominations, or consumers. The bridge between the Lisbon system and the common law has not been built by the Geneva Act. Some useful foundations were laid, but much remains to be done. The bridge, if it is ever built, will not be the result of a normative encounter. It will be made of trade bricks.