Geographical indication: food for thought

Food manufacturers and retailers engage with consumers on a variety of levels in order to stand out in an increasingly crowded marketplace.

Regardless of where you shop and how you select your food products, you will have come across (and probably bought) food products with a type of packaging label which sometimes goes unnoticed.  These labels are the logos for Protected Geographical Indication (PGI) and Protected Designation of Origin (PDO), forms of geographical indication (GI).  Producers covet GI status for their products since it is indicative of quality and enables the product to be sold at a premium.  In order to secure the existence and protection of GI status, however, the mechanisms of intellectual property rights must be employed. 

GI overview

GI is not to be confused with a country of origin label.  GI tells consumers not only where a product comes from, but also that a product comes from a geographically defined area and usually has been produced following strict quality and procedural standards.

In particular, GI is concerned with three elements which form part of the product identity: production, processing and preparation.  For a product to be given PGI status, at least one of these elements must have taken place in a given geographical area, whereas a PDO status requires all three elements to be present.

Darjeeling, Cognac, Prosciutto, Scotch Whisky, Port, Champagne and Argan Oil are examples of food products which have been granted PDO or PGI status.  These products normally display a logo which indicates particular product characteristics and differentiates these products from others. Indeed, it is for this reason that blue cheese aged in special caves and made of milk from sheep indigenous to Roquefort-sur-Soulzon in the south of France is allowed to be called Roquefort.

Although the majority of GIs have been given to agricultural products, foodstuffs, wine and spirits, GIs can also be linked to particular manufacturing skills and traditions which are human factors rather than geographical characteristics.  An obvious example is Swiss Watches.

The UK currently holds over 60 protected food names.  Notable UK PGI products are Cornish Pasty, Herefordshire Cider, Scottish Wild Salmon, Welsh Lamb, English Regional Wine and Scotch Whisky.  The PDO list includes Stilton, Cornish Clotted Cream and Jersey Royal potatoes.

Why is GI relevant?

GI is synonymous with quality. 

Horsemeat in beef lasagne, cocaine in a soft drink and harmful mould in Christmas pudding have all recently led to food recalls in the UK as announced by the Food Standards Agency.  The press keeps consumers informed of such events and there is a growing demand to ascertain the origin of and distribution chains behind food products.  Consumers want to know where their food comes from and GI food products provide assurances as to food quality and traceability.

In economic downturns it is natural for consumers to look for affordable dining options.  The most recent recession has seen this trend continue, although nowadays home cooks are not willing to compromise on quality. A Mintel report from July 2013 entitled "Eating Out: The Decision Making Process" revealed that 33% of British restaurant diners were cooking at home more rather than eating out and that 11% of diners stated that they were trying to recreate restaurant meals at home. GI ingredients have more appeal than generic ingredients to the home cook trying to replicate an authentic recipe.

There is also a real opportunity for supermarkets to capitalise on the shift in consumer behaviour and drive sales towards their premium own-label brands. The use of GI products could be a differentiating factor for premium lines such as Tesco's Finest and Sainsbury's Taste the Difference and a meal deal with a bottle of Champagne or a bottle of English Regional Wine (both PGI products) could make a perfect dine-in experience.

How is GI protected?

The registration of a trademark by a producer seeking GI recognition is not sufficient to protect the geographical origin of that product – specific GI registration is required. Trademarks generally let consumers know that a product originates from a certain company whereas GIs are linked to a particular place.

In order to achieve effective GI recognition, a comprehensive scheme of rules relating to standards and processes, marketing strategies and producers' cooperation must be in place.  However, to secure the success of a GI, legal protection is crucial at every stage, from registration through to enforcement. Also effective monitoring mechanisms must be introduced so as to prevent and take measures against infringement by free-riders. 

GI protection under EU / international law

Many countries have provisions under unfair competition or consumer protection law to tackle misappropriation of GIs.  However, securing multijurisdictional protection can be complex due to different and often conflicting legal frameworks.  For instance, in the US, Canada and Australia, GIs are mainly covered under trademark systems, whereas in the EU, GIs are treated as a separate intellectual property right with a scope of protection that transcends the trademark system.

GI as a separate intellectual property right was first established by the 1992 EU framework to identify and categorise GIs.  The EU model was followed by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) which applies to all members of the World Trade Organisation. The TRIPS Agreement defines GI and sets out general rules to protect against misleading GI use and unfair competition. The TRIPS Agreement provides for the refusal or invalidation of a trademark registration containing or consisting of a GI product name in relation to goods not originating in the territory indicated if the use of such trademark might mislead the public as to the true origin of the product.

An increasing number of European countries continue to support the establishment and protection of GIs despite frequent opposition by food conglomerates wishing to market products which are not in accordance with that particular GI's criteria, such as parmesan-style cheese.  As a result, in 2006, the EU law was extended by Council Regulations 509 and 510, which "lay down the rules on the protection of designations of origin and geographical indications for agricultural products intended for human consumption", although wine is notably excluded. 

GI protection in the UK

As a member of the EU and a contracting party to the TRIPS Agreement, the UK benefits from multilateral instruments which increase the protection of GIs abroad.  These regimes minimise the impact that the territoriality principle of intellectual property may have on GI protection in foreign jurisdictions.  Moreover, under the EU framework, a registered named food or drink will be given legal protection throughout the EU.

Applications for GI in the UK are assessed by the Department for Environment, Food and Rural Affairs (Defra) before being submitted to the European Commission. Jersey Milk is one of the products currently being assessed by Defra.

Why is it important to protect GI?

Aside from the obvious benefits that GI status confers in respect of signifying quality and vindicating premium prices, there are other reasons why it is important to protect GI.

Effective protection through registration and control mechanisms can prevent the registration of a particular GI as a trademark, generally abroad, by a third party for goods similar to the GI protected ones.  If a trademark is registered by a third party, it is capable of preventing the use of the name of that GI product even in the country of origin.  Take, for example, the case of Cupuaçu, a native rainforest tree producing exotic-tasting pulp which has been consumed in the Brazilian Amazon region for centuries.  Recently, Cupuaçu became an internationally sought-after ingredient for chocolate-making and in 1998 the name Cupuaçu was registered as a trademark in the EU, US and Japan by Japanese company Asahi Foods – although this registration has since been invalidated.

Also, effective protection can prevent the GI product name from becoming a generic term, thereby losing its reputation and specific quality attributes and weakening its protection by intellectual property rights.  When this is the case, any producer can use the designation for any generic sample of that type of product, which is what has happened to the term Camembert. 

Therefore, legal protection is about preventing the use of a name or sign that constitutes the GI.  The same product-making techniques can still be used by a third party for making a similar product, even though this product cannot use the same name as that of the GI-protected product.  GI status is symbolic of quality and prevents specialist products from dilution such that their unique and proven attributes are worthless.  Unique selling points are priceless in such an increasingly competitive industry and, as a result, it is reasonable to expect a continued and increased awareness of GI protection as an intellectual property right in the UK.  This legal protection will not be easily afforded by all producers, but ultimately it will guarantee the value and existence of a GI product. 

Julio Filho

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