nach oben

Erschienen in:

2018 | OriginalPaper | Buchkapitel

Agroecology and Geographical Indications at the WTO and in the EU Between Magic and Rationality: ‘Reinventing’ Marketing Designations to Preserve Rural Economy, Cultural Heritage and the Environment

verfasst von : Rocco Palma

Erschienen in: Food Diversity Between Rights, Duties and Autonomies

Verlag: Springer International Publishing

Einloggen

Aktivieren Sie unsere intelligente Suche, um passende Fachinhalte oder Patente zu finden.

search-config

KI-gestützte Suche

Aus

Abstract

Agro-ecology and Geographical Indications (GIs) share the underlying assumption that traditional agriculture, as opposed to agro-alimentary industry, is the most effective production paradigm to keep balanced levels of production while preserving economic value, culture, traditions and the environment. The EU and some DCs and LDCs promote GIs at the WTO (TRIPS Council) as cultural and environment-friendly marketing tools to foster sustainable development and traditional agriculture, also protected as ‘cultural expression’ and ‘intangible heritage’ by the UNESCO Conventions. US, Canada, Australia and some DCs oppose this view claiming that GIs effectiveness as ‘cultural guardians’ and ‘income generators’ or ‘environmental tools’ is unproven. GIs did not prevent in the 1990s both the abandonment of traditional grapes in Tuscany to align local wines to international taste (‘Supertuscans’) and the rise of Australian wine exports at the expense of the European ones. However, a rigorous legal and economic assessment shows that GIs are designations used in global markets to distinguish ‘niche’ products with an essential link with the terroir and that they command an ‘extra-price’ from consumers in exchange for ‘quality’. Thus, economic success and, eventually, traditions and biodiversity preservation are not a legal automatism but depend on public recognition. The decrease in EU world wine exports of the 1990s might be also related, more than to the failure of GIs provisions, to the surge of new wine-producing countries and the wave of Wine Trade Agreements signed by the EU (Australia, Chile, South Africa), providing for the prohibition of free-riding on EU famous names and forcing the use of local designations. A sample review of ‘quality regulations’ of selected EU GIs provides evidence of some excellent standards designed to protect traditions and the environment, but this is not always true. As the normative demand for traditional and environmental standards appears not to be strictly binding in EU GIs law but rather a ‘non easily enforceable’ invitation to act, CSR incentives at EU or Member States level may enhance voluntary adoption of best practices, so as to increase cultural, social and environmental added value in GIs quality regulations (but also geographical collective marks), together with greater coordination of public policies that have a bear on GIs earning potential. This may prove effective also in exceptional cases as part of the policies to face plant epidemics (such as the ‘Xylella’ bacterium in the South of Italy), environmental accidents or excessive urbanization and depletion of agrobiodiversity and as a tool to ease coordination and restructuring of production to face increased competition on the global markets, while counterbalancing negative perceptions by the public.

Sie haben noch keine Lizenz? Dann Informieren Sie sich jetzt über unsere Produkte:

Springer Professional "Wirtschaft+Technik"

Online-Abonnement

Mit Springer Professional "Wirtschaft+Technik" erhalten Sie Zugriff auf:

über 102.000 Bücher
über 537 Zeitschriften

aus folgenden Fachgebieten:

Automobil + Motoren
Bauwesen + Immobilien
Business IT + Informatik
Elektrotechnik + Elektronik
Energie + Nachhaltigkeit
Finance + Banking
Management + Führung
Marketing + Vertrieb
Maschinenbau + Werkstoffe
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Springer Professional "Technik"

Online-Abonnement

Mit Springer Professional "Technik" erhalten Sie Zugriff auf:

über 67.000 Bücher
über 390 Zeitschriften

aus folgenden Fachgebieten:

Automobil + Motoren
Bauwesen + Immobilien
Business IT + Informatik
Elektrotechnik + Elektronik
Energie + Nachhaltigkeit
Maschinenbau + Werkstoffe

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Springer Professional "Wirtschaft"

Online-Abonnement

Mit Springer Professional "Wirtschaft" erhalten Sie Zugriff auf:

über 67.000 Bücher
über 340 Zeitschriften

aus folgenden Fachgebieten:

Bauwesen + Immobilien
Business IT + Informatik
Finance + Banking
Management + Führung
Marketing + Vertrieb
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Vorheriges Kapitel Genetically Modified Organisms as Politicizing Products?

Nächstes Kapitel Food Diversity and Typicality in EU and in Italian Law: Protected Designations of Origin (PDOs); Protected Geographical Indications (PGIs); Traditional Speciality Guaranteed (TSGs)

Altieri (1971/2002), pp. 1–24.

This has been a classic distinction in International law and in domestic law until the 1990s of the last century: simple ‘indications of provenance’ (IPs) inform the consumer about the mere geographical origin of products (‘Made in Italy’, ‘product of France’), while ‘appellations of origin’ (AOs) are distinctive geographical names guaranteeing not only product origin but also territorial quality because of natural and human factors available in the area (‘Parma’, ‘Barolo’, ’Roquefort’): cf. Ladas (1975), p. 1574 et seqq. The expression ‘appellations d’origin controlèe’ (AOCs) refers to registered geographical names for traditional products for which systems of monitoring and compliance of quality standards are provided and, indeed, this is largely the way the notion is used during this inquiry, even when the expression ‘geographical indications’ is used.

A first set of international rules on GIs protection, albeit incomplete, was adopted within the Unions of Geneva for the protection of industrial property in the second half of the twentieth century, such as Articles 1, paragraph 2, 9 and 10 of the 1883 Convention of the Paris Union for the Protection of Industrial Property (‘PC’), the 1891 Madrid Agreement on the suppression of false indications of origin (‘MA’) and the 1958 Lisbon Agreement on the Protection of Appellations of Origin and their International Register (‘LA’): cf. the texts at http://www.wipo.int/geo_indications/en/#laws.

Cf. Regulation (EEC) 2081/92 of the Council of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, OJ [1992] L 156/1, Regulation (EC) 510/2006 of the Council of 20 March 2006 on the protection of geographical indications and denominations of origin for agricultural products and foodstuffs, in OJ [2006] L93/12, Regulation (EU) 1151/2012 of the European Parliament and the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs, OJ [2012] L 343/1, the last currently in force. The first Regulation was mirrored by provisions negotiated on request of the EC during the Uruguay Round and later incorporated into the TRIPS Agreement.

From Section 3 of the TRIPS Agreement has then derived a conspicuous number of WTO Members national implementing GI laws: cf. the TRIPS text at https://www.wto.org/english/docs_e/legal_e/legal_e.htm. For an overall picture of national implementing laws and diversity of legal conceptions, cf. TRIPS Council IP/C/W/85 of 17 November 1997, p. 12 et seqq, and IP/C/W/85/Add. 1 of 2 July 1999, p. 22 et seqq.

GIs of non-wine products are now protected in Art. 22 of Section 3 by reference to the ordinary prohibition of misleading statements and Art. 10bis of the Paris Convention against unfair competition.

WTO, doc. TN/C/W/25 cit, p. 3.

Fink and Smarzynska (2002), p. 403 et seqq. GIs would allow local communities to safeguard a ‘traditional’ model of agriculture, alternative to mass production, thus avoiding the risk of a ‘McWorld’: cf. Broude (2005a), p. 21.

Broude (2005b), p. 623, and especially Hughes (2006), p. 299 et seqq., where a critical review is made of the same founding premises of GIs and AO theory, seen as a sort of rhetoric device, not correspondent to economic and geo-physic realities. For a positive account—from an historian perspective—of industrially-processed foods against the rhetoric of traditional products, cf. Laudan (2013).

On the monopolistic effects of GIs Mosoti and Gobena (2007), p. 202 et seqq.

De Martino (2015), p. 7 et seqq.

Ladas (1975), p. 1574. For a view of the theory of property rights on intangibles as an ‘arbitrary cognitive act’ aimed at unifying under the same umbrella diverse juridical institutions and practices, previously covered under a different set of scientific studies or branches of law (labor law, public law of economy), cf. Spada (2012), pp. 3–5 et seqq.

This would place agro-ecological studies into a long and robust perspective of thought, deeply rooted in a tradition of legal studies of Southern Italy dating back to that particular version of the ‘Enlightenment’ that took place in Naples and to one of its most prominent representatives, Antonio Genovesi, with his idea of an advanced relationship between theory and practice and, particularly, of the role of theoretic reflection as an activity that should not limit itself to speculation, but be pragmatic and inspired to the public good, so as to find new paradigms to guide public and collective action: cf. de Nitto (2002), p. 164.

Altieri (1971/2002), pp. 5–7.

Altieri (1971/2002), p. 16.

GIs are usually given a heterogeneous protection in different countries depending on the interest in protecting agro-food products. An Anglo-German model is traditionally opposed to the French-Romanistic one: the former is based on the perception of the public as a ‘subjective’ standard for repression of misleading under unfair competition doctrine, the latter on sui generis laws which provide (a) preventive registration by public authorities on the premise of a preexisting exclusive ‘link-with-the-terroir’ (i.e. between the quality of products and natural and human factors therein available) and (b) a strengthened ‘objective’ and ‘quasi-absolute’ protection which results in an exclusive right to use, conferred to the circle of producers settled in the designated area, independent from the perception of the public, coupled with the prohibition to become generic. Despite a prolonged uncertainty about the legal nature of rights, especially on AOs [still attested in 1992 by the Resolution OIV on the legal nature of AOs: cf. Audier (1993), p. 28 et seqq], GIs and AOs are today placed, with full merit, within IP law, namely as collective rights of property on intangibles (in that particular meaning that is given to property rights in IP law, as ‘rights on reputations’).

‘Terroir’ theory has been differently molded in course of time: it might be roughly stated that, in a first phase, it was privileged a spiritual and symbolic conception rooted in the need for reconstructing French national identity after the collapse of the ‘Ancient regime’ (nineteenth century); at a second stage, it was given priority to a ‘naturalist’ approach, based on natural factors of production (land, climate, raw materials), thus limiting protection only to ‘produits naturels’ (French law on AOs of 1919 and Decree on AOCs of wines and cheeses of the 1930s); later the conception shifted—as early as the late 1950s—to a more nuanced and holistic view which resulted in a so called “humanistic approach”, open to the contribution of both natural and human factors (local knowledge, traditional methods of production), so as to allow—because of the pressure of the industrial ‘milieu’ (Limoges)—a wider protection, extended to ‘les produits industriels et artesanals’ (Lisbon Agreement, from the 1950s). For a mature ‘naturalist’ approach to terroir, cf. Roubier (1954), p. 762 et seqq. For an account of ‘terroir’ as a tripartite notion (‘spiritual’, ‘natural’ and both ‘natural and cultural’) and as it related to the different stages of formative politics in the post-Revolutionary France, cf. Gangjee (2012a), p. 86 et seqq.

Non-wine GIs are given in TRIPS Art. 22 ‘subjective’ protection, i.e. the traditional common law standard depending on the extent to which the use of the geographic sign for products not originating from the designated area would result in a mislead of the public: which is to be excluded when the geographical meaning of the sign is obscure, is hardly connectable with an originating production, or is perceived as the common name for a type of product (‘Kolnisch Wasser’), or is used in connection with ‘delocalisers’ (additions such as ‘style’, ‘type’, ‘imitation’, ‘like’ or the indication of the true origin, so as to exclude mislead). The evolution of GIs law from simple IPs in the Paris Convention or Madrid Agreement to AOs in the Lisbon Agreement and wine GIs in TRIPS might be accounted as the attempt to make protection ‘objective’, i.e. detached from the perception of the public, also by prohibiting delocalizing additions (cf. Madrid Agreement Art. 4 and TRIPS Art. 23).

WTO Doc. n. TN/C/W/25, of 18 May 2005 on ‘extension’ and TN/IP/W/12, of 14 September 2005, on the ‘multilateral register’, both (not undisputedly) recognized as ‘outstanding implementation issues’ by the Doha Declaration: cfr. WTO Ministerial Declaration’, WT/MIN(01)/DEC/1, of 14 November 2001, par. 18.

“Several new Members and many developing countries had a long tradition of products grown or manufactured with special characteristics due to their origin which, in spite of the limited amount to which they were traded internationally, had become known and reputed. For These countries, ensuring market access for their ‘star’ products, might be the only way to keep their agricultural sectors alive. As a result of increased international competition in generic basic agricultural commodities, prices might plummet and severely diminish income in a number of new Members. Therefore, it was vital for countries to ensure those alternative sources of income, which could be done through market entry for ensuring their quality products” (TRIPS Council, Minutes of meeting, 5–7 March 2002, IP/C/M/35, par. 159).

“In a time of globalizing and highly-competitive trade, the added-value of a GI creates new and better opportunities for quality products, especially for smaller and developing Member States and a valuable alternative to the benefit of economies of scale” (WTO doc. cit., TN/C/W/14, 9 July 2003, par. I.10).

The argument had already been raised during the 1970s and the 1980s at the time of talks for a WIPO treaty on GIs and a new PC Art. 10quater, which were widely affected by the debate on the ‘New World Economic Order’ and ‘the right to development’. As to the debate on TRIPS reforms in favor of DCs and LDCs, cf. Land (2014), p. 142 et seqq, and Deere (2009), particularly 303 et seqq. WIPO has published a ‘Model Law for Developing Countries on Appellations of Origin and Indications of Source’ in the 1970s: cf. WIPO document TAO/I/INF. 1, of 30 October 1974.

‘Roibos’ is a South Africa root used as a beverage and for healing purposes, while ‘Darjeeling’ tea and ‘Basmati’ rice are major Indian traditional quality products, whose production and export is rapidly growing in terms of quantity and value. ‘Blue Mountain’ is a fine traditional coffee grown in Jamaica: cf. Downes and Laird (1999).

Cf. Correa (2001), pp. 3–5 et seqq.

The landmark essay is Shiva (1996), pp. 141–170.

A traditional product may disappear, for instance, because of: (a) changes in in trends and habits of consumption by virtue of competition by cheaper alternatives or substitutes, eventually more ‘desirable’, if only for the novelty or the attractive force of fashion and aggressive advertising campaigns; (b) a rise in costs of raw materials, available techniques, labor force or other inputs eroding margins and causing lower revenues; (c) events such as a reduction of income or investment in the areas of origin and production, the degradation of living conditions, also because of economic crises or catastrophic events (war, drought or famine, epidemic events, migrations), causing erosion and loss of natural resources for significant climate changes, lack of human or intellectual resources, financial support or economic viability or the abandonment of traditional techniques (or their failure to adapt to the needs of present time) for the lack of an incentivizing context; (d) a choice of industrial policy (such as financial incentives for mass agriculture or industry), draining away resources from traditional agriculture. An example of public choice is in Gramsci (1966), p. 6: “(T)he protective duty on wheat has prompted many in the countryside at sowing in the middle of barren lands in the certainty of an easy gain artificially provided by the State, for the usual reason of increasing domestic production. The State monopoly created by the war, which from 29 francs brought the grain to more than 40 francs, is to create the illusion that even spreading on the sand there is always enough to gain”(a.t.).

The aging method of ‘infossatura’ for the ‘Fossa di Sogliano’ cheese of Emilia Romagna, Italy, or the ‘filatura in bronzo’ (‘extruded through bronze’) used for certain types of pasta made in ‘Gragnano’, Naples.

International trade law contributes to homologate consumption styles by requiring harmonized standards for the production and marketing of products and an equal treatment of goods and services to allow their free circulation across borders. On mass consumption and the role of media cf. Schiller (1976). Habermas (2001) highlights the erosion of local traditions and habits brought by global trade. Contexts of consumption include the set of social practices, places and contexts where products are sold and consumed, which are a significant portion of processes of self-perception of individuals and social groups’ own identities, reinforcing communitarian ties and sense of belonging. Consumption of traditional quality products often takes place in ‘cultural’ and ‘social’ places (small markets, cafes, specialized shops), or in particular occasions (feasts, festivals): cf. ‘der Zur Blauen Frasche’, accounted as the first ‘cafè’, opened in Vienna by Georg Koslchitzky after the retreat of the Turks in 1683, which inspired the ‘Lloyd’s Coffee House’ in London in 1687, a ‘must’ for public relations and commerce: Niola (2015). On the role of food in building up cultural and communitarian identities, cf. Montanari and Sabban (2006), p. XI et seqq.

Respectively, Articles 2 and 4: both texts are available at http://portal.unesco.org/en/ev.php-URL_ID=12025&URL_DO=DO_TOPIC&URL_SECTION=-471.html. The dual nature of GIs paves the way for considering the interrelations between GIs law and international cultural law, as well as the fundamental right to culture under the UN Covenant on Economic, Social and Cultural Rights: an interesting approach in this regard is in Gangjee (2008), pp. 383–395. On IP law and fundamental rights cf. Intellectual Property and Human Rights, WIPO, Geneva, 1998. For a general framework of the interrelations and conflicts between general International law and special International law (or between its special branches), cf. International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, 58th Session, May 1-June 9, July 3-Aug. 11, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006), as corrected U.N. Doc. A/CN.4/L.682/Corr.1 (Aug. 11, 2006) (finalized by Martti Koskenniemi).

CBD text is available at https://www.cbd.int/convention/text/. FAO publications support the view that, apart from being “of great economic benefit to rural communities or local niche producing or widely popular products”, GIs may serve as a tool for implementation of the CBD, whose Art. 8 (j) requires States Parties to promote a “wider application” of TK and communitarian practices for the conservation of BD encouraging an “equitable benefit sharing” and whose Art. 11 requires to adopt “economically and socially sound measures that act as incentives for the conservation and sustainable use of biological diversity”: cf. Mosoti and Gobena (2007), p. 202 et seqq.

Grafting techniques, seed selection, rotation of species and use of biologic or organic substances with regenerative, anti-bacterial and anti-viral purposes, with a view to maintain biologic cycles and the organic generative capacity of fields, as well as a balanced use of resources, reduction of sulphites in wine and additives in general.

Khoury (2014), p. 4001 et seqq.

PDOs and PGIs Regulations were designed in the late 1980s and early 1990s in times of overproduction and falling agricultural commodity prices as a counterbalance at the time the EU was dismissing the unrealistic policy of so called ‘vertical harmonization’ of products, leaving room to the principle of mutual recognition (‘Cassis de Dijon’): cf. Communication of the Commission on the ‘Realization of the Internal Market: community regulation of agricultural products and foodstuff’, 6 November 1985, par. 28, COM(1985) 603def.

Cf. Reg. 2081/92: GIs are capable to ensure “the improvement of farmers incomes” and of “promoting the diversification of agricultural production in order to achieve a better balance between supply and demand on the market”, as well as “the promotion of products having certain characteristics could be of considerable benefit to the rural economy, particularly in disadvantaged and outlying areas”.

GIs are supported by a complex administrative and self-professional monitoring system and a wide scope of protection, compared to simple IPs and trademarks: cf. as to the mixed nature of GIs law cf. Olszak (2001), p. 13: “…ce système de protection s’est organisé suivant des principles assez différents de ceux des autres branches de la propriété industrielle et on se trouve parfois face à un “conflit de logiques”, (…) c’est-à-dire un conflit entre unelogique de droit public, d’essence collective, et celle de droit privé, éminentement individuelle”.

Reg. 1151/2012: “(T)he quality and variety of agricultural production (...) of the Union represent a strength and an important competitive advantage for producers of the Union and are an integral part of its living cultural and gastronomic heritage”.

Cf. Reg. 1151/2012:“This is due to the skills and determination of Union farmers and producers, who were able to preserve traditions while taking into account the development of new materials and production methods”.

“An agricultural product or foodstuff bearing such a geographical description should meet certain conditions laid down in a specification, such as specific requirements aimed at protecting the natural resources or landscape of the production area, or to improve animal welfare”.

As to the ‘naturalist’ conception, often opposed to a ‘humanist’ conception of GIs, cf. note n. 17 above.

As known, IP law does not simply accommodate pre-legal intellectual entities into legislation as they are in the real word or in human thought, but it qualifies as deserving protection a specific portion of a given intellectual entity (e.g. an ‘original’ solution to a technical problem which has not been ‘published or make known to the scientific community and the public’, is susceptible of ‘serial industrial application’ and has been ‘deposited and registered at IP specialized offices’), carved out in accordance with pre-established legal functions and protected interests (‘original ideas for patents’ and not any idea, ‘distinctive signs’ for trademarks and not any sign). Regarding GIs in Reg. 1151/2012, protection is limited to those geographical names designating products originating from a specific area whose characteristics, qualities or reputation are exclusively due (or attributable) to the environment, including natural and human factors (Art. 5): this making clear that not all signs are protected, but only those signs suggesting an essential link with ‘origin’ and ‘quality’.

Some hints for a cultural conception of GIs as ‘national cultural heritage’ are in La Pergola, Conclusions, Case C-289/96, C-293/96, C-299/96, Denmark et al. v. Commission [1998] ECR I-1541, para 8; Ruiz-Jarabo Colomer, Conclusions, Case C-317/95, Canadane Cheese Trading [1997], ECR p. I-4681, para 9 et seqq.

GIs law implies to put in place new institutions: offices for the registration and quality monitoring, alignment of quality standards, administrative protection, education and training: cf.WTO doc. n. IP/C/W/360, p. 14 et seqq.

In 2000, Australian exports to the UK were for the first time higher than the French, so unveiling a change in taste of the British consumer who turned his attention to new wine producing countries. This has caused even the ‘Ministere de l'Agriculture’ to question the need for an AOC reform: cf. Broude (2005b), p. 670 et seqq. and Broude (2005a), p. 21.

Under the modest but less rigid ‘table wine’ label, before the adoption of IGTs: cf. Broude (2005b), p. 664 et seqq. This led the Consortium ‘Chianti Classico’ to dismiss traditional varieties according to the ‘Barone Ricasoli’ recipe (such as ‘Malvasia’ and ‘Trebbiano’) and increase new grapes until 10% and later 15%.

Hughes (2006), p. 360. Similar changes have occurred as it concerns rules on grazing fields and pasture.

Cf. FAO publication Mosoti and Gobena (2007), p. 202 et seqq.

Cf. Roubier (1954), p. 762 et seqq.

Zoning operations would be largely fictitious and would rarely correspond to homogeneous geologic conditions and to the extension of customary uses, showing inconsistency with the real organization of production (procurement of raw materials is often made on a larger scale than the delimited area), because of the pressures of lobbies, interested in the commercial value of names: cf. Broude (2005b), p. 664; Hughes (2006), p. 360. For a recent account of disputes concerning the delimitation of the geographical area, cf. Gangjee (2006), p. 291.

Such as retaining the evocative power of geographical signs on the international markets and preserving EU monopolistic rents in agriculture on the face of political and electoral pressures: cf. Hughes (2006), p. 360.

Many PDO/PGI champions produce significant quantities of products and apply technologies far from being traditional: cf. Hughes (2006), p. 339; Broude (2005b), p. 651. In addition, GIs law would drive local communities to emphasize the most marketable aspects of traditions: Broude (2005a, b), respectively pp. 21 and 677. The success of ‘Champagne’, made according to the codification of Dom Perignon, is reported as an example of a particularly palatable wine defeating traditional wines.

WTO Doc. IP/C/W/360, 26 July 2002, par. 16 e 20: “To require the trademark system to begin using a different standard - one not based on consumer confusion - would require, at least in the trademark regimes of some members, a fundamental philosophical change”.

Dismissals of names (previously used as generic)to the advantage of GIs holders with consequent confusion of the public, advertising of new names and fine-tuning of sign less known by the public, limitation of freely available trade descriptions, unfair competitive advantage conferred to GIs holders, not based on any initial effort or goodwill: cf. WTO IP/C/W/360, par. 14 et seqq, and 23; WTO, doc. TN/IP/W/12/Add.1, par. 14, 75 and 100): cf. also WTO IP/C/W/360, cit., par. 23–26; in literature, cf. Landes and Posner (2003), p. 169 et seqq. and p. 189 et seqq.

Cf. Broude (2005b), p. 678; Hughes (2006), p. 366; Voon (2009), p. 311.

The Italian contribution to the legal analysis of protected interests and functions of IP rights is well established in Europe: for a functional theory of commercial law, cf. Ascarelli (1949), p. 101; in IP and trademark law, cf. Vanzetti (1961), p. 16 et seqq. and Spada (2012), pp. 3–5 and 15 et seqq; for an overview of the different theoretic approaches to IP rights, cf. Are (1959), p. 244 et seqq.

Having particular regard to the UNESCO CICH and CD and the CBD. For a comment to the UNESCO Conventions cf. Von Schorlemer and Stoll (2012) and Blake (2006). As to CBD and its critical interrelation with biotechnologies, cf. Pavoni (2006), p. 29, and Ullrich (2006), p. 201 et seqq.

Both in their tangible dimension, i.e. entities in their physical features, and intangible dimension, i.e. the ‘knowledge’ and the ‘information’ used in the processes, intended as ‘ideas’ or ‘intellectual entities’ regardless of their material support.

GIs incorporate ‘practices’, ‘expressions’, ‘knowledge’, ‘skills’ that local ‘communities’, ‘groups’ and ‘individuals’ recognize as part of their culture, transmitted ‘from generation to generation’ and constantly ‘re-created’ in interaction with the ‘place’, the ‘environment’, ‘nature’ and ‘history’, to provide a sense of identity and continuity based on respect for diversity and creativity. Nevertheless, the same products and techniques also reflect the identifying features of the notions of ‘cultural expressions’ and ‘cultural activities, goods and services’, as required by Art. 4 of the CCD, i.e. expressions, goods, activities that incorporate or are the result of ‘expressions of the creativity of individuals and social groups with cultural content’ as it relates to ‘symbolic meaning, artistic dimension and cultural values that originate or express cultural identities’. Most natural resources used for producing GIs products (‘plant and animal varieties’, ‘vines’, ‘micro-organisms’) and the knowledge used to treat them, may qualify under ‘biodiversity’ and ‘biodiversity-related knowledge’ definitions as of Articles 2 and 8 (j) of the CBD.

Art. 2.5 of the CCD (as to measures aimed at promoting ‘cultural industries’ cf. Art. 6.2).

Art. 4.4 of the CCD.

Starting from these assumptions, CCD and CICH establish the legal framework for the adoption—and legitimacy vis-à-vis other branches of International law—of domestic measures and international cooperation aimed at safeguarding the basic conditions (including the economic ones) for the continuous reproduction, reinterpretation, promotion and further growth of cultural expressions and intangible heritage. This kind of protection is both ‘conservative’ and ‘evolutionary’, because is committed to continuously identifying entities and assets worth of protection (through inventories, databases or periodic plans linked to specific sectors) and to provide the means, incentives and awareness (including financial support, appropriate communication campaigns) to support persistence and continuity of traditions and cultural expression (e.g. depending on the type of entity, investigation, research and dissemination of knowledge, creation of spaces for the free development, revitalization or continuous renewal, contamination and ‘re-creation’ of cultural and artistic contents, laying down the infrastructures for ‘creative and cultural industries’): cf. in this regard CCD Art. 4, para 7 and 6 (principles, regulatory measures and incentives), from 7 to 19 (interventions, transparency and information sharing, awareness campaigns, international cooperation, international fund, monitoring and reporting); and CICH Articles from 11 to 18 (regulatory, incentives, awareness and planning), from 19 to 24 (international cooperation), from 25 to 28 (ICH International Fund) and 29–30 (monitoring and reporting).

Cf. general exception in GATT Art. XX, lett. b and, as to the audio-visual sector, the so called ‘cultural exception’, establishing quotas and percentage for domestic products, GATT Art. IV. There is no exception in GATT Art. XX which justifies restrictions of trade to preserve national culture, a part from the protection of ‘public morals’ (Art. XX, lett. a).

In particular: (a) points of overlap with IP law where the promotion of aesthetic value, cultural identities and good living which are enshrined in artistic creations is one of the ‘underlying assumptions’ which justifies at one time ‘droit d’auteur’, GI law and the legal protection of cultural expressions and intangible heritage; (b) potential points of tension with the law of international trade, where cultural law, while recognizing the commercial value of certain cultural assets, sets out the conditions for their ‘special treatment’, which might collide with the unifying and standardizing and non-discriminatory approach which lies at the heart of free trade principles, raising the far more difficult issue of the limits within which a special regime for circulation of cultural goods and services (or preferential aids), which might result trade-restrictive, is likely to alter ordinary conditions of competition or imply veiled restrictions to international trade; (c) relationships of instrumentality between GI law and cultural law where, assuming the complementarity between economic and cultural protection, GI law might serve as a tool to achieve cultural policy aims.

The double nexus (geography and quality) has been highlighted in French and Spanish doctrine: cf. Roubier (1954), p. 762 et seqq., p. 762; Fernandez Novoa (1970), p. 146; Botana Agra (2001), p. 22.

Better, geographical origin and the guarantee of territorial quality, inclusive of the ‘conditions naturels des terroirs’ (natural factors) and the ‘savoir faires’ of producers (human factors).

This is particularly true for ‘experience’ and ‘credence’ products, whose quality cannot be weighted before consumption and after consumption: cf. Akerlof (1970), pp. 488–500, and, regarding ‘reputation’, ‘asymmetrical information’ on the markets and ‘premium price theory’, Shapiro (1982) and Shapiro (1983), pp. 659–679. For a review of economic literature on GIs, cf. OECD (2000), p. 7 et seqq.

In particular, reputation determined by territorial quality, natural (purity of water, soil, type of plants, climatic conditions) and human (craft machinery, hands harvesting, traditional recipes): as to the connection between quality and reputation today cf. CJEU, Case C-388/95 Belgium v. Spain (Rioja II) [2000], ECR I-3123, paras 54–56 and 59; CJEU, Case C-108/01 Parma et alteri v. Asda Stores [2003], ECR I-5121, paras 64–66 and 80. Quality reputation is protected by conferring an exclusive right to use on the club of producers who comply with quality regulations (and so gained reputation to the products) so as to prevent any interference (or free-riding) from third competitors in the channel of communication established through the sign with the public. Since the very beginning, as early as it was adopted the first French AOC law in 1919, protecting reputation from fraud was the function of quality regulation, as a response of quality producers to the ‘phylloxera’ epidemic, which destroyed high quality grapes and caused lesser quality wines exported from Algeria and Tunisia be sold under famous geographical labels.

Protecting consumers from misleading and shielding producers from unfair competition, as primary justifications of GI law, are firmly stated from the 70s of the past century: cf. Fernandez Novoa (1970), p. 10 et seqq.; Ladas (1975), p. 1574, and in US law McCarthy (2006), ch. 3; cf. also, CJEU, Case C-12/74, Commission v. Germany (Sekt), ECR 1975/181, para 7.

It is well-established in general theory of law, as well as in the theory of property rights and IP that, by conferring rights of actions to individuals, the legal order may be willing to achieve not only individual interests, but also a wide range of superior general or collective interests (transparency of the market, free competition, stimulus for innovation, public disclosure of new technologies for the sake of future free exploitation).

As to the double nexus between products and the place of production (geography and quality), cf. Roubier (1954), p. 762 et seqq., p. 762; Fernandez Novoa (1970), p. 146, Botana Agra (2001), p. 22.

At a deeper glance, this feature of GIs is coherent with the premise of the ‘living’ character of traditions, also recognized by the UNESCO Conventions: traditions should not be closed in unlikely juridical ‘museums’, but rather be deemed as a changing and evolving phenomenon, inclusive of modifications induced by consumers tastes.

Even those authors that deeply criticise the ‘terroir’ theory do not really doubt about the existence of a deterministic link between products and territory, limiting themselves to argue that some territorial traits might be reproduced elsewhere. In any case, even if some features of a product might be reproducible anywhere, with analogous results, any presumed ‘natural’ product is always also ‘cultural’, i.e. it is the result of a process of historical and cultural recognition in a given originating community as something edible and culturally worthwhile that gives it originality and uniqueness, also when partially or totally reproducible elsewhere: as to the notion of ‘cultural recognition’ cf. Montanari and Sabban (2006), p. XII et seqq.

As to GIs protection against free-riding and dilution, cf. Lehmann (1986), pp. 746–767. The anti-competitive effects of IP restrictions on distinctive signs (as in the case of GIs) are not comparable in quality and nature with restrictions on use of original knowledge (as in the case of patents): GI exclusive rights do not cover quality specifications, which remain freely available, but simply prohibit the use of geographical name for non-complying products or products not originating from the designated area. Thus, there is a limited monopolistic effect on language if generic and geographic alternatives are available (‘sparkling wine’, ‘Champagne’ and ‘Spumante’, ‘Cava’ and ‘Prosecco’). While restrictions on signs based on origin may well favor national preferences, contrary to the principle of free circulations of goods[this is mirrored in CJEC, Case 249/81 Commission v. Ireland (‘Buy irish’)(1982), ECR 04005, Case 207/83, Commission v. UK and Northern Ireland (1985), ECR 01201: all these decisions prohibiting use of national geographical labels in the single market and reflecting the traditional conceptual hostility of the principles of free trade to commercial use of geographical names, dating back to the British Commonwealth], volumes of GI products are usually not massive since GIs regulations provide for limitation of yields. In addition, monopolistic effects of GIs protection are not so different in scope if compared to the effects of the rights conferred by the TRIPS on (reputed) trademarks.

Inspectorates against fraud, judicial authorities, consortia and professional associations: in France, GI judicial protection has prevalently been the realm of public prosecutors (followed by constitution of private parties in criminal proceedings), while the ‘Institute National des Appellations d’Origine’ (INAO), ‘Syndicats de défense’ and ‘Comités Interprofessionnels’, as well as some offices at the ‘Ministère de l’Agriculture’ and ‘de l’Economie et des Finances’ have been given the powers of inspection, monitoring and quality control(similarly in Italy). Public ex officio protection by public authorities of Member States (MS) has been provided—with some misunderstanding and uncertainty among States (cf.CJEU, Case C-132/05 Commission v. Germany (Parmesan) [2008], ECR I-957, para 75-by Reg. 2081/92 and later placed within the system of controls on health and composition of food products provided in Reg. (EC) 882/2004 by Reg. 510/2006 (Articles 10–11), to then find full and final recognition (although serious problems of implementation) in Articles 36–40 of Reg. 1151/2012.

Prohibition of declaring registered GIs generic, independence from the perception of the public, wide protection against usurpations, imitation and evocation, even beyond similarity of products. Reinforced protection of GIs against usurpation, imitation and evocation, prohibiting the simple use of any simple trait resembling the protected name, reflects a logic like the ‘droit d’auteur’, that protects artistic works from any alteration or encroachment of the moral rights of the author and prevent any copying or imitation of the artistic expression: cf. Chen (1996), p. 5.

EU law confers to GI holders special rights of/to protection, with a mixed public-private nature, that cannot be explained but not by virtue of a pronounced will to protect the ‘extra-commercial’ value of GIs. This trend is rooted in a French reaction in the early twentieth century to some court decisions in the US declaring French famous GIs generic, which was favored by their having been declared generic in the country of origin (‘La République française v. Saratoga Vichy Spring Company’, 191 U.S. 427, pp. 435–437, 24 S. Ct. 145, 1903). Consequently, the need for a GIs reinforced domestic protection as a prerequisite for the international one and their qualification in terms of national public property or heritage: cf. Roubier (1954), p. 754.

As to the widening of the communicative content of GIs today, beyond tradition and quality (suggesting consumers to buy for “motivations de nature hygiéniste, patriotique ouethique”), cf. Olszak (2001), p. 1.

Absence of traditional, cultural or environmental value are therefore hardly ‘justiciable’, that is to say they are unlikely to be the basis of an actionable claim in court, claiming the annulment or hetero-integration of PDOs or PGIs registration.

As it is the case of France, Italy and Spain: cf. below notes 109 and 110. The absence of a traditional character may however be found, indirectly, as non-compliance with the requisite of a ‘link-with-the-terroir’: to establish a link, especially for PDOs, implies time to consolidate production, a certain level of recognition by the public, coordination and organization by the circle of producers. The Lisbon Agreement, Art. 2.2, seems to regard ‘reputation’ as an implied feature of International AOs: “Le pays d'origine est celui dont le nom, ou dans le quell est située la régionou la localité dont le nom, constituel'appellation d'origine qui a donné au produits a notoriété”.

It is not an easy task to establish unequivocally the weight of each of the factors that determine the performance of complex markets such as the international ones, all the factors leading to increase or decrease of world market shares for a given industry being interdependent. Such an operation is even more difficult where the question is how to measure the economic effects of a legislative measure of IP law, which is notably difficult to measure in terms of economic analysis of law: cf. Landes and Posner (2003), p. 10. Bearing this in mind, any reading should be made being aware that available data do not provide objective truths but, at the most, some guidance on the impact of any single factor and that those data should be interpreted with caution according to the given historical context.

‘Agreement between Australia and the European Community on Trade in Wine and Protocol, done at Brussels and Canberra (26-31 January 1994)’. By stopping the use of French names (such as Burgundy and Chablis) and relying on their own, Australians have built the world’s most dynamic wine industry: Calboli (2006), p. 201. Commercial trends between 1992 and 2000, right after the signing of the Wine Agreement, show that the reputation of Australian local GIs, as well as the extra-price paid from the international public in exchange of well-known geographic wine brands, have significantly grown in the reference period: cf. Schamel and Anderson (2003), pp. 357–369.

EU-US agreement of 2005, EU-Chile Agreement of 2002, EU-South Africa agreement of 2002. The 2005 EU-US Agreement prohibited the use of EU names in US (Champagne, Chianti, Chablis, Burgundy, Madeira), previously deemed as ‘semi-generics’, and pushed US vintners to use local GI names (consequently, the debate about the origin of Zinfandel, claimed by local vintners as a traditional grape of California).

Cf. Agreement in the form of an Exchange of Letters between the European Community and the Republic of South Africa on trade in wine, OJ [2002] L28, 30.1.2002, pp. 134–135; Agreement on Trade in Wines annexed to the Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, OJ [2002] L352, pp. 3–1450. A similar agreement, especially devoted to the protection of European GIs, the phasing out of European GIs used as semi-generic in the US and the mutual recognition of oenological practices, was concluded by the EU and the US in 2005, but never endorsed by the Congress (cf. ‘Agreement in the form of an Exchange of Letters between the EC and USA on matters related to Trade in Wine’, OJ [2005] L 301, p. 16). The EU-US Agreement was meant to prohibit the use of an important set of EU wine names in the United States (Champagne, Chianti, Chablis, Burgundy, and Madeira). In any case, in the US, a flourishing viticulturist movement has consolidated—alongside the continued use of European IGs as ‘semi-generics’—the protection and reputation on the domestic and international markets of Napa Valley wines, thus moving with small step towards the use of local geographic designations (see, in this regard, as a symptomatic element of a new trend, the debate on the origin of ‘Zinfandel’ vine that Californian vintners claim to be a traditional California vine, though it is accounted to have Austrian origins and shares the same DNA with the ‘Primitivo’ vine from Salento, Puglia, Italy). In the US, the ‘Alcohol and Tobacco Tax and Trade Bureau’ is entitled to issue authorizations to use in commerce the so-called ‘American Viticultural Areas’ (AVAs), geographical labels whose structure is in essence similar to European designations of origin, but whose extension and prescriptive contents are well far from being so specific and detailed such as those in place in Europe (the mandatory content of grapes grown and harvested in the area is set for AVA wines at a threshold around 80/85%).

Correa (2001), p. 17.

Paus and Reviron (2011), p. 16, with special regard to the case-study by Suh, Macpherson, The impact of geographical indication on the revitalization of a regional economy: a case study of ‘Boseong’ green tea. This case study also reports the full panoply of advantages brought by GIs regulations, including increases in prices and sales, in land value and investments or the creation of new jobs, as well as reduction of polluting practices and greater sustainability of productions.

Studies at http://ec.europa.eu/agriculture/quality/reports/index_en.htm , accessed 7 July 2015.

‘Commission Staff Working Paper’ (2010) Impact Assessment on Geographical Indications, 2010, pp. 4 and 28, at http://ec.europa.eu/agriculture/quality/policy/quality-package-2010/ia-gi_en.pdf.

Agro-tourism and catering, connected activities such as agro-food technology, communication and marketing, consulting, logistics and transport, packaging and the getup of products.

Typically the bottling, grating, slicing of products.

CJEU, Case C-388/95 Belgium v. Spain (Rioja II) [2000], ECR I-3123, paras 54–56 and 59; CJEU, Case C-108/01 Consorzio del Prosciutto di Parma et alteri v. Asda Stores [2003], ECR I-5121, paras 64–66 and 80; CJEU, Case C-469/00 Ravil v. Bellon and Biraghi [2003], ECR I-5053, paras 90 and 49.

GIs have historically favored attraction of foreign investments: not by chance ‘Bordeaux’, ‘Champagne’, ‘Jerez’ and ‘Porto’ main houses of productions were established by British investors in the nineteenth century.

DOOR, E-BACCHUS and E-SPIRIT DRINKS, on line databases, available at www.europa.eu/qualitypolicy.

DOOR, dossier IT/PDO/0017/0007, p. 2.

DOOR, dossier IT/PDO/0005/0580.

A similar view is expressed by manufacturers of the PDOs ‘Fromage de Herve’ and ‘Voilaille de Bresse’ (France) and ‘Szeged Fuserpaprika’ (Hungary): cf. London Economics et alteri (2008), p. 226.

This is the opinion of PDO ‘Tuscan olive oil’ (Italy) and of ‘Jersey Royal Potatoes’ (England) producers: cf. London Economics et alteri (2008), p. 226.

E.g. ‘Gala’, ‘Morgenduft’ and ‘Fuji’ apple varieties in ‘Melinda’ in Italy, or ‘White Stilton with Apricot’ cheese in the UK and a special type of ‘Esrom’ cheese in Denmark: cf. London Economics etalteri (2008), p. 226 et seqq.

The ‘environment-oriented’ use of GIs builds on French AOC law that has provided the normative model for the EU. AOC quality regulations in France limit the use of pesticides and chemicals, established what lands are to be used for grazing and what foods for breeding, define exactly the arable land and usable plant varieties and fix quantities for crops yields, preventing the modification of traditional cultivations and intensive farming, which would lead to low quality and the degradation of the landscape: cf. Lorvellec (1996), p. 78 et seqq. Environment is also relevant by a prospective ‘external’ to GIs law, as legal treatment conferred to areas hosting GIs, at the moment of taking administrative decisions about urban and countryside planning, or regulating dangerous economic activities: cf. Lorvellec (1996), p. 79. Dangerous economic activities might alter the landscape or expose the geographical area to accidents and potential risk of erosion and loss of natural resources (groundwater, land or air pollution, reduction of biodiversity, acid rain). Special treatment as to building or dangerous economic activities licenses would then prevent that GI productions no longer comply with quality rules and immemorial productive customs—turning into ‘misleading’ the message of quality conveyed to the markets—and ensure that local environmental conditions are objectively better than the average.

Also known as ‘Xeres’ or ‘Sherry’: for an accurate explanation of this method, cf. Garcia de Lujan (1988), pp. 55–56.

Cf. DOOR, dossier ES/PDO/0017/0076, para 5, lett. (c) (e f), registered with Reg. (EC) n. 1107/96 of the Commission of 12 June 1996 on the registration of geographical indication and appellations of origin within the framework of the procedure provided in Art. 17 of Reg. n. (EEC) n. 2081/92 of the Council, OJ L 148, of 21 June 1996, pp. 1–10.

100

Quality regulations provide for exams and checks to verify the presence of chemicals, metals and germs on the land, and contemplates the use of local hay for feeding animals on the spot: cf. DOOR, dossier FR/PDO/0117/0116, as amended under the implementing Regulation (EC) n. 256/2015 of 13 February 2015 approving non-minor amendments to the specification for a name entered in the register of PDOs and PGIs [Comté (PDO)’, OJ L43 18.02.2015, containing the ‘Cahier des charges de l’appellation d'origine Comtè’: cf. Annex 1].

101

Likewise, for planting layouts, types of cultivation and pruning systems which “must be those generally used or at least not in any way change the characteristics of the olives and oil”: cf. 4.1 of PGI quality regulation of ‘Olio Toscano’. Art. 4.1 of PDO quality regulations of ‘Olio di Terra d’Otranto’ provides similarly, while art 5.3 specifies: “For the extraction of extra-virgin olive oil as of art. 1 only physical and mechanical processes are admitted apt to ensure that olive oil is obtained without any alteration or of the qualitative features of the fruit”.

102

Texture and composition of soil, exposure to climatic agents, plants varieties, rather than processing techniques.

103

Bakery and confectionery, beer, sausages, sweets: for these products processes are normally more relevant than natural factors and they are usually accommodated within the looser definition of PGI.

104

Complaints concern especially the identification of the exact extension of territory—normally expanding over time—where the historical production has taken place. Political pressures often determine the overexpansion of the producing area and the loosening of quality specifications: Gangjee (2006), p. 301 and in ECJ case law, cf. CJEU, Case C-269/99, Kuhne (‘Spreewalder Gurken’) [2001], and TFI order of 15 September 1998, T-109/97, ‘Molkerei v. Commission’.

105

For an in-depth analysis, cf. ‘European Forum on Nature, Conservation and Pastoralism’ (2015), pp. 5–6.

106

Para 5, lett. (f) of the ‘Camembert de Normandie’ unique document, if compared with that of ‘Comtè’ cheese, appears to vaguely indicate grass pasture without any further detail. The ‘Cahier des charges’ lists some criteria for pasture (density) and foodstuff for animals (types) without any reserve for local plants or prohibitions of non-natural substances or elements (cf.DOOR, ‘Camembert de Normandie’, dossier FR/PDO/0017/0112 and ‘Décret no 2008-984 du 18 septembre 2008 relatif à l’appellation d’origine contrôlée Camembert de Normandie’, JORF, 21 September 2008, 11, 60: annex 3).

107

The area of ‘Camembert de Normandie’ is alleged to have been intensively cultivated so that it has lost much of its traditional landscape and plants diversity: cf. European Forum on Nature, Conservation and Pastoralism’ (2015), p. 6.

108

This choice, while diluting the strictly ‘naturalist’ (or ‘traditionalist’) conception of GIs law and paving the way to the registration of ‘new’ products, is coherent with legal and philosophical premises. The notion of tradition is in itself a ‘living’ concept, subject to constant change and transformation (cf. Art. 2 of the CICH). Thus, a stricter standard would have limited protection to historical methods without allowing evolution and making it more difficult for those MS where an agricultural tradition to obtain PDO/PGI protection is lacking (‘at what point in time and with which patterns would the beginning of a tradition be fixed?’). Among protected GIs there are both reputed designations of long-lasting tradition with great international value (‘Parma’, ‘Parmigiano Reggiano’) and designations whose reputation is limited in time and space, especially to the State of origin (e.g., ‘Kraškizašink’, a particular type of Slovak salami).

109

This is not to say that ‘production requirements’ and their connection with ‘established traditions’ are not justiciable ‘in absolute’. Examples of pleas invoking non-correspondence with the ‘traditional receipt’ and—more often—the revision of the borders of the geographical area (normally, asking for larger areas than those agreed by producers’ associations) are not unknown [cf., among others, ‘Northern Foods Plc v. DEFRA, Melton Mowbray Pork Pie Association’ (2005) EWHC 2971]. In addition, quality regulations can be opposed (where still at the stage of application) or amended (if approved and registered), respectively, under Art. 10–51 and 53 of Reg. 1151/2012. Simply, in general terms, substantial and formal conditions to suit or apply for administrative modifications are restrictive and they often imply grounds for action very difficult to prove.

110

MS may provide for additional requirements in the national phase of registration according to a ‘variable geometry’ pattern that enhances the individual choices of each MS. Stricter requirements for registration, such as a certain quality or duration in time of previous use, might be provided so as to select designation with a higher degree of quality: cf. in Italy, Art. 5 of the Decree of the Ministry of Agricultural policies n. 5442, of 21 May 2007, requires a “report attesting that production has lasted at least 25 years, even in a non-continuous way, and constant and traditional use of the appellation in commerce and common language”; in France, Art. L. 115-5 of the ‘Code de la consommatiòn’ provides that ’AOC’ products shall have a “notoriété dumentétablie”.

111

Somehow, a certain degree of local reputation or historicity is intrinsic to the structure of GI law and to a GI to be registered. In fact, it is hardly conceivable the registration of a product with a ‘link-with-the-terroir’ without a collective production with a certain recognition on the market, consolidated over time: registration is not an instantaneous act as it implies coordination among producers, identification and setting of quality regulations as ‘traditional’ and a certain preexisting reputation making profitable to engage in a collective costly production.

112

Cf. Gangjee (2012b), p. 102.

113

Cf. ‘Commission Staff Working Paper, Impact Assessment on Geographical Indications’, 2010, at http://ec.europa.eu/agriculture/quality/policy/quality-package-2010/ia-gi_en.pdf, accessed 7 July 2015, where it is clarified that GI producers rejected the EC request for compulsory environmental standards, obtaining by large majority that their addition be voluntary.

114

Flexibility of language, however, appears to some extent fictitious since the discretion left to producers is sometimes filled up by national and regional (or professional) normative sub-levels, allowing the continuous adaptation of production standards within the normative limits posed by the registered regulation (self-regulation by consortia and producers associations).

115

According to ‘Jamòn de Teruel’ and Danish cheese ‘Esrom’ producers, GI standardization may hamper creativity and diversity inducing specialization and jeopardizing the different ‘nuances’ of the final product. This might also depend on difference in political weight of producers within GIs associations, since big firms normally vest different interests than SMEs, mainly, the interest in having more standardized conditions of production, which might be suitable to achieve economies of scale, with possible dispersion of TK and diversity.

116

So, as it is already the case for France, Italy and Spain. In a context of enhanced competition and gradual saturation even of GIs markets, further differentiation through an enhanced guarantee on tradition and social value may further raise the market profile for certain GI products claiming enhanced authenticity and environmental sustainability.

117

Organic sub-segments for traditional products might be established within the horizon of a single protected GI, conveying to the public authenticity and social value by means of specific indications coupled with sub-regulations (‘traditional’, ‘original recipe’), to obtain ‘additional premium-prices’. This solution would build on existing practices, such as the ‘Aceto balsamico di Modena’ GI, that however has brought to the registration of two different GIs, ‘Aceto balsamico di Modena’ under a PGI and the PDO version marketed under the label ‘traditional’ (‘Aceto balsamico tradizionale di Modena’) and might be applied also to a particular type of ‘Parmigiano Reggiano’, prepared according to ancient recipe of Benedictine monks and today at risk of extinction. Hyper-differentiation based on origin and quality is criticized by those who think that this would create confusion in the average consumer [cf. Broude (2005b), p. 670 et seqq.]. However, the positive experience of certain raw commodities markets experimenting for the first time differentiation (craft beers, coffee, chocolate) suggests a favorable trend, at least for growing markets where generic sale still prevails.

118

Greater selection during registration might be of impact, but it could be prevented by political relations among MS and the Commission. ECJ case law has clearly distributed competence in the two-tiers procedure of registration to MS (national phase) and the Commission (EU phase), under the judicial control of national courts and the ECJ, being the competence on substance mainly attributed to national authorities: cf. CJEU, Case C-269/99 Kuhne [2001], ECR I-9517, paras 57–58; CFI order, Case C-447/98 P Molkerei [2001], para 72; CFI order, Case T-114/99 Pampryl [1999], ECR 1999, p. II-3331; CJEU, Case C-343/07, Bavaria et alteri v. Bayerischer Brauerbund [2009], para 71 e 82.

119

Incentives and conditionality usually reinforce CSR policy objectives by providing hooks in other public policies (trade promotion, support to SMEs, cooperation among producers, collective promotion and advertising).

120

‘Xylella fastidiosa’ is a bacterium that, originally identified in California, from 2009 has affected olive trees in the South of Puglia, Salento, Italy, causing an environmental disaster and seriously harming local olive oil economy, by reducing production volumes and spreading a risky (wrong) perception that the epidemic might have affected the quality of olive oil. Among the practices that are being identified as a response there are substitution of plants with species more resistant to the bacterium, plowings and cleaning of the ground, hooding of infected trees or other mechanical barriers to contamination, and similar. Hetero-integration of quality regulations, that may extend also to collective marks and simple GIs, may also serve (a) to counter-balance the negative effects of the epidemic in terms of public perception so as to make known to the buying public policy actions and prevent the erosion of the market image of local products and (b) to push fragmented prducers to collectively adopt coordinated quality processes fragmented producers, so as to better exploit local resources and face international competition.

121

Probably, the ‘traditional purity’ of the ‘Barone Ricasoli’ recipe for Chianti wine should not be overstated: finally, adding increasing percentages of ‘Malvasia’ and ‘Trebbiano’ to the strong black ‘Sangiovese’ wine of that time had no other meaning than creating a ‘Supertuscan’ ante litteram, intended to make it more palatable to intercept changing tastes.

122

On the contrary, forms of recovery and reinterpretation of tradition are frequent and socially significant and appear as a sort of ‘social engineering’, hardly distinguishable from ‘evolution’ or ‘contamination’ that are typical attributes of living traditions and, somehow, a qualifying sign of a certain modernity: for a positive evaluation of ‘inventions of traditions’ as innovative processes, cf. Hobsbawm (2002), p. 16. Leaving aside radical distortions of traditions (often politically-driven), the success of genuine reinterpretations of the past is more simply explainable as a mass reaction to the advancement of globalization and homologation, which brings people to fold to the ‘small’ and the ‘known’ and, in market terms, to switch to products rooted in a communitarian, traditional production, as something familiar and sustainable, often original and distinctive, perceived as diverse from serial products, identical at every latitude. A successful example of re-interpretation of productive traditions in the viticultural sector is the experience of certain Italian wine-producers in the Romagna region leading the “Ritorno al Sangiovese”, i.e. the attempt to revitalize and conjugate the cultivation of traditional Sangiovese grapes with the production of high quality excellency wines (cf. f.i. http://www.noeliaricci.com/identita/).

123

Cf. WTO, ‘European Communities – Protection of trademarks and geographical indications or agricultural products and foodstuffs’, Reports of the Panel, 15 march 2005, doc. WT/DS174/R (complaint by the United States), as to inspection and prescriptive objective requirements for quality under GI Regulations: “The Panel agrees with the European Communities that WTO Members are entitled to aim for objective assessment of product conformity, provided that they implement this objective in a WTO consistent manner”.

124

Finally, the birth of the monumental AOC law in France (particularly the ‘provenance’ and ‘quality’ discipline as embodied in the law of 1918) was no more than the reaction of French ‘vignerons’—somehow not differently from today—to ‘a plant epidemic that came from the Americas’, i.e. the ‘phylloxera crisis’, affecting European countryside in between the nineteenth and the twentienth century.

Akerlof AG (1970) The market for lemons: quality, uncertainty and the market mechanism. Q J Econ 84:488–500CrossRef

Altieri M (1971/2002) Agroecology: the science of natural resource management for poor farmers in marginal environments Agric Ecosyst Environ 93:1–24CrossRef

Are M (1959) Beni immateriali. In: Enciclopedia del diritto. V. Giuffrè, Milano, pp 244–269

Ascarelli T (1949) Funzioni economiche ed istituti giuridici nella tecnica dell’interpretazione. In: Ascarelli T (ed) Saggi giuridici. Giuffrè, Milano

Audier J (1993) De la nature juridique de l'appellation of origin. Bulletin de l’OIV, pp 21–37

Blake J (2006) Commentary on the 2003 UNESCO Convention on the safeguarding of the intangible cultural heritage. Institute of Art and Law, Leicester

Botana Agra MJ (2001) Las Denominaciones de Origen. Marcial Pons, Madrid-Barcelona, 2001

Broude T (2005a) Culture, trade and additional protection for geographical indications. Bridges 9:21. www.ictsd.org. Accessed 7 July 2015

Broude T (2005b) Taking trade and culture seriously: geographical indications and cultural protection in WTO law. U Pa J Int Econ Law 26:623–692

Calboli I (2006) Symposium: the first ten years of the trips agreement: expanding the protection of geographical indications of origin under TRIPs: “old” debate or “new” opportunity? Marq Intell Prop Law Rev 10:181–203

Chen J (1996) A sober second look at appellations of origin: how the United States will crash France’s wine and cheese party. Minn J Glob Trade 5:29–64

Correa CM (2001) Traditional Knowledge and Intellectual Property, Issues and options surrounding the protection of traditional knowledge. The Quaker United Nations Office (QUNO). https://www.humanrights.ch/upload/pdf/061127_correa_trad_knowledge.pdf. Accessed 7 July 2015

de Nitto A (2002) Giuseppe Pisanelli e la legge. In: Diritto dei giudici e diritto dei legislatori. Argo, Lecce, pp 146–203

De Martino E (2015) Sud e magia, Milano

Deere C (2009) The implementation game. The TRIPS and the global politics of intellectual property reform in developing countries. Oxford University Press, Oxford

Downes DR, Laird SA (1999) Innovative mechanisms for Sharing Benefits of Biodiversity and Related Knowledge, UNCTAD biotrade initiative. http://www.ciel.org/Publications/InnovativeMechanisms.pdf. Accessed 7 July 2015

European Forum on Nature, Conservation and Pastoralism’ (2015) EFNCP response to the EC, Green paper on agricultural product quality: product standards, farming requirements and quality schemes. http://www.efncp.org/download/EFNCPresponseGreenPaper.pdf. Accessed 7 July 2015

Fernandez Novoa C (1970) La Protecciòn Internacional de las Denominaciones Geograficas de los Productos. Editorial Tecnos, Madrid

Fink C, Smarzynska BK (2002) Trademarks, geographical indications, and developing countries. In: Hoekman B, Mattoo A, English P (eds) Development trade and WTO. A handbook. The World Bank, Washington DC, pp 403–412

Gangjee D (2006) Melton Mowbray and the GI Pie in the sky: exploring cartographies of protection. Intell Prop Q 3:291–309

Gangjee D (2008) Geographical indications and human rights. In: Torremans P (ed) Intellectual property and human rights. Kluwer Law International, The Hague, pp 383–395

Gangjee D (2012a) Geographical indications and cultural heritage. WIPO J 4:92–102

Gangjee D (2012b) Relocating the law of geographical indications. Cambridge University Press, New YorkCrossRef

Garcia de Lujan A (1988) Singularidades de la Viticoltura del Jerez como base de su denominaciòn de origen. In: Proceedings of the Historic Appellation of Origin Symposium, Consejo regulador de la Denominaciòn de Origen ‘Jerez-Xeres-Sherry’, Jerez, pp 55–66

Gramsci A (1966) La questione meridionale. In: Dalla Chiesa N (ed) (2014) Melampo, Roma

Habermas J (2001) The postnational constellation: political essays, 1st edn. MIT Press, Cambridge

Hobsbawm EJ (2002) Introduzione: Come si inventa una tradizione. In: Hobsbawm EJ, Ranger T (eds) L’invenzione della tradizione. Einaudi, Torino

Hughes J (2006) Champagne, feta, and bourbon: the spirited debate about geographical indications. Hastings Law J 58:299–386

Khoury CK (2014) Increasing homogeneity in global food supplies and the implications for food security. Proc Acad Sci USA 11:4001–4006. http://www.pnas.org/content/111/11/4001.full.pdf. Accessed 7 July 2015CrossRef

Ladas SP (1975) Patents, trademarks, and related rights. National and international protection, vol III. Harvard University Press, Cambridge

Land M (2014) Adjudicating TRIPS for development. In: Ghidini G, Peritz RG, Ricolfi M (eds) TRIPS and developing countries. Towards a new IP world order? Edward Elgar, Cheltenham-Northampton, pp 142–162

Landes WM, Posner RA (2003) The economic structure of intellectual property. Harvard University Press, Cambridge

Laudan R (2013) Cuisine and empire. Cooking in world history. University of California Press, Berkeley

Lehmann M (1986) Unfair use of and damage to the reputation of well-known marks, names and indications of source in Germany. Some aspects of law and economics. Int Rev of Intell Prop Comp Law 6:746–767

London Economics, ADAS, Ecologic (2008) Evaluation of the CAP policy on protected designations of origin (PDO) and protected geographical indications (PGI), Final report. http://ec.europa.eu/agriculture/eval/reports/pdopgi/report_en.pdf. Accessed 7 July 2015

Lorvellec L (1996) You’ve got to fight for your right to party: a response to Professor Jim Chen. Minn J Glob Trade 5:65–81

McCarthy JT (2006) McCarthy on trademarks and unfair competition. Thomson West, Eagan

Montanari M, Sabban F (eds) (2006) Storia e geografia dell’alimentazione. Risorse, scambi, consumi. I. Utet, Torino

Mosoti V, Gobena A (2007) International trade rules and the agriculture sector. Selected implementation issues. FAO Legislative Study 98, Rome

Niola M (6 August 2015) series ‘Mangiare I simboli: il caffè’, La Repubblica

OECD (2000) Appellations of Origin and Geographical Indications in OECD Member Countries: Economic and Legal Implications, COM/AGR/APM/TDWP(2000)15/FINAL

Olszak N (2001) Des appellations d’origineet indications de provenance. Tec&Doc, Londres-Paris-New York

Paus M, Reviron S (2011) Evaluating the effects of protecting geographical indications: scientific context and case studies. In: Bettelli G, Marescotti A, Paus M, Reviron S, Deppeler A, Stamm H, Thévenod-Mottet E (eds) The effects of protecting geographical indications, ways and means of their evaluation. Swiss Federal Institute of Intellectual Property, Bern. http://www.ige.ch. Accessed 7 July 2015

Pavoni R (2006) Biodiversity and biotechnology: consolidation and strains in the emerging international legal regimes. In: Francioni F, Scovazzi T (eds) Biotechnology and international law. Hart, Oxford, pp 29–57

Roubier P (1954) Le droit de la propriété industrielle, Partie speciale II. Sirey, Paris

Schamel G, Anderson K (2003) Wine quality and varietal, regional and winery reputations: Hedonic prices for Australia and New Zealand. Econ Rec 79:357–369CrossRef

Schiller H (1976) Communication and cultural domination. M.E. Sharp, New York

Shapiro C (1982) Consumer information, products quality, and seller reputation. Bell J Econ 13:20–35CrossRef

Shapiro C (1983) Premiums for high quality products as a return to reputations. Q J Econ 98:659–679CrossRef

Shiva V (1996) Protecting our biological and intellectual heritage. In: Drahos P (ed) (1999) Intellectual Property, International library of essays in law and legal theory. Second series. Aldershot, Ashgate Dartmouth, pp 141–170

Spada P (2012) Il diritto industriale. Parte generale. In: Auteri P, Floridia G, Mangini V, Olivieri G, Ricolfi M, Spada P (eds) Diritto Industriale, Proprietà Intellettuale e Concorrenza. Giappichelli, Torino, pp 3–53

Ullrich H (2006) Traditional knowledge, biodiversity, benefit sharing and the patent system: romantic v. economics? In: Francioni F, Scovazzi T (eds) Biotechnology and international law. Hart, Oxford, pp 201–229

Vanzetti A (1961) Funzione e natura giuridica del marchio. Riv di dir comm, I:17–88

Von Schorlemer S, Stoll P (2012) The UNESCO Convention on the protection and promotion of the diversity of cultural expressions: explanatory notes. Springer, BerlinCrossRef

Voon T (2009) Geographical indications, culture and the WTO. In: Ubertazzi B, Muniz Espada E (eds) Le indicazioni di qualità degli alimenti. Diritto internazionale ed europeo. Giuffrè, Milano, pp 300–311

Titel: Agroecology and Geographical Indications at the WTO and in the EU Between Magic and Rationality: ‘Reinventing’ Marketing Designations to Preserve Rural Economy, Cultural Heritage and the Environment
verfasst von: Rocco Palma
Verlag: Springer International Publishing
Buch: Food Diversity Between Rights, Duties and Autonomies
Print ISBN: 978-3-319-75195-5

Electronic ISBN: 978-3-319-75196-2

Copyright-Jahr: 2018
DOI: https://doi.org/10.1007/978-3-319-75196-2_4

Springer Professional

Abstract

Bitte loggen Sie sich ein, um Zugang zu Ihrer Lizenz zu erhalten.

Sie haben noch keine Lizenz? Dann Informieren Sie sich jetzt über unsere Produkte:

Springer Professional "Wirtschaft+Technik"

Springer Professional "Technik"

Springer Professional "Wirtschaft"