The Transformation of EU Geographical Indications Law

The Present, Past and Future of the Origin Link

Andrea Zappalaglio

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000342352
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Linking traditional and local products to a specific area is increasingly felt as a necessity in a globalised market, and Geographical Indications (GIs) are emerging as a multifunctional tool capable of performing this and many other functions. This book analyses the evolving nature of EU sui generis GIs by focusing on their key element, the origin link, and concludes that the history of the product in the broad sense has become a major factor to prove the link between a good and a specific place.

For the first time, this area of Intellectual Property Law is investigated from three different, although interrelated, perspectives: the history and comparative assessment of the systems of protection of Indications of Geographical Origin adopted in the European jurisdictions from the beginning of the 20th century; the empirical analysis of the trends emerging from the practice of EUGIs; and the policy debates surrounding them and their importance for the fulfilment of the general goals of the EU Common Agricultural Policy. The result is an innovative and rounded analysis of the very nature of the EU Law of GIs that, starting from its past, investigates the present and the likely future of this Intellectual Property Right.

This book provides an interesting and innovative contribution to the field and will be of interest to GI scholars and Intellectual Property students, as well as anyone willing to gain a better understanding of this compelling area of law.

Part I

The origin link

Roots, nature and structure

1 Terroir, the early sui generis IGO regimes and the roots of PDO

1.1 Introduction

This chapter focuses on the nature and the evolution of the key concept of terroir, the most ancient and discussed kind of origin link. Then, it presents the history of two early systems of protection of Indications of Geographical Origin (IGO), i.e. the French and the Italian ones. In this way, the book introduces the deep roots of the EU Protected Designation of Origin (PDO) quality scheme. This, in fact, is generally described as the descendant of the regimes of these two countries, that is the French Appellation d’Origine Contrôllée (AOC) and the Italian Denominazione di Origine Controllata (DOC).¹ Indeed, the influence of these two systems has been explicitly recognised by the European Commission, which stated:

In 1992 the EU introduced a system to protect and promote traditional and regional food products inspired by existing national systems, for example the French AOC (Appellation d’Origine Contrôlée) and the Italian DOC (Denominazione d’Origine Controllata) systems.²

1 Gilles Allaire, François Casabianca and Erik Thévenod-Mottet, ‘Geographical Origin and Agro-Food Products’ in Elizabeth Barham and Bertil Sylvander (eds), Labels of Origin for Food: Local Development, Global Recognition (CABI 2011) 7–8; Caroline Le Goffic, La Protection Des Indications Géographiques (LexisNexis 2010) 15–16.

2 European Commission, European Policy for Quality Agricultural Products (European Commission 2007) 5.

In particular, the French AOC dates back to 1935. Italy, instead, tried to develop a system for the protection of geographical names since the 1920s. However, these legislative projects were all unsuccessful, and as a result, the DOC label for wines was introduced only in 1963.³

3 Decreto del Presidente della Repubblica 12 Luglio 1963 n 930 recante norme sulla tutela delle denominazioni d’origine dei mosti e dei vini, GU 15 July 1963.

These systems for IGO protection are based on the concept of terroir. This French term, always challenging to translate into English, is one of the main operational concepts within the doctrine on which the EU sui generis GI rules are based. This postulates the existence of a substantial and unique causal link between, on the one hand, a place, with its natural and environmental characteristics, i.e. the ‘natural element’ of terroir; a community of producers with specific know-how, i.e. the ‘human element’ and, on the other, territory-specific resources.⁴

4 Bertil Sylvander and Gilles Allaire, ‘Globalisation and Geographical Indications’ in Elizabeth Barham and Bertil Sylvander (eds), Labels of Origin for Food: Local Development, Global Recognition (CABI 2011) 107.

Generally, the word terroir does not appear in the EU’s official documents. However, it is recalled quite explicitly by the Commission, for instance when it states, ‘protected Designations of Origin (PDO) products (…) have proven characteristics resulting solely from the terrain and abilities of producers in the region of production with which they are associated’.⁵ This concept has left traces in Regulation 1151/2012 itself. For instance, Recital 17 of the Preamble stipulates ‘the scope for designations of origin and geographical indications should be limited to products for which an intrinsic link exists between product or foodstuff characteristics and geographical origin’. Furthermore, and above all, the definition of PDO refers to both the natural and human element of terroir when referring to products ‘whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors’.⁶

5 European Commission, ‘European Policy for Quality Agricultural Products’ (n 2) 6. See also European Commission, Geographical Indications http://ec.europa.eu/trade/policy/accessing-markets/intellectual-property/geographical-indications/.

6 Art 5(1)(b) Regulation 1151/2012. Emphasis added.

Therefore, terroir is the oldest origin link, and it is an essential element for understanding the current EU sui generis GI regime. This is why this chapter analyses it in-depth, focusing specifically on its origin, evolution and relationship with the early IGO rules, the French and the Italian ones, in particular. Indeed, the literature on terroir is extensive.⁷ Moreover, the genesis of the French IGO rules has been investigated from various perspectives: economic,⁸ historical,⁹ anthropological¹⁰ and legal.¹¹ Yet, it is still possible to contribute to the existing literature on different levels.

7 See, among the many, Laurence Bérard, ‘Terroir and the Sense of Place’ in Dev Gangjee (ed), Research Handbook on Intellectual Property and Geographical Indications (Edward Elgar 2016). Elizabeth Barham, ‘“Translating Terroir” Revisited: The Global Challenge of French AOC Labeling’ in Dev Gangjee (ed), Research Handbook on Intellectual Property and Geographical Indications (Edward Elgar 2016); Mark Allen Matthews, Terroir and Other Myths of Winegrowing (University of California Press 2015); Thomas Parker, Tasting French Terroir: The History of an Idea (University of California Press 2015); Sarah Daynes, ‘The Social Life of Terroir among Bordeaux Winemakers’ in Rachel Black and Robert C Ulin (eds), Wine and Culture: Vineyard to Glass (Bloomsbury 2013); James E Wilson, Terroir (University of California Press 2012); Amy B Trubek, The Taste of Place: A Cultural Journey into Terroir (University of California Press 2008). See also Genevieve Teil, ‘Protecting Appellations of Origin: One Hundred Years of Efforts and Debates’ in William van Caenegem and Jen Cleary (eds), The Importance of Place: Geographical Indications as a Tool for Local and Regional Development (Springer 2017); Philippe Roudié, ‘La Notion de Terroir Viticole En Bordelais’ (1995) 43 Cahiers Nantais 65; Pierre Laville, ‘Le Terroir, Un Concept Indispensable à l’élaboration et à La Protection Des Appellations d’origine Comme à La Gestion Des Vignobles: Le Cas de La France’ (1990) Bullettin de l’OIV 217; Philippe Prévost and others, ‘Le Terroir, Un Concept Pour l’action Dans Le Développment Des Territoires’ (2014) 1 Vertigo 1. For an interesting discussion on terroir and climate change, see Lisa F Clark and William A Kerr, ‘Climate Change and Terroir: The Challenge of Adapting Geographical Indications’ (2017) 20 Journal of World Intellectual Property 88.

8 With regard to this aspect, the key authority is Alessandro Stanziani. See Alessandro Stanziani, ‘French Collective Wine Branding in the Nineteenth-Twentieth Century’ in Dev Gangjee (ed), Research Handbook on Intellectual Property and Geographical Indications (Edward Elgar 2016); Alessandro Stanziani, ‘Information, Quality and Legal Rules: Wine Adulteration in the Nineteenth Century France’ (2009) 51 Business History 268; Alessandro Stanziani, ‘Wine Reputation and Quality Controls: The Origin of the AOCs in 19th Century France’ (2004) 18 European Journal of Law and Economics 149. See also DM Higgins, Brands, Geographical Origin, and the Global Economy: A History from the Nineteenth Century to the Present (Cambridge University Press 2018).

9 Leo A Loubère, The Wine Revolution in France: The Twentieth Century (Princeton University Press 2014); Kolleen M Guy, When Champagne Became French: Wine and the Making of a National Identity (Johns Hopkins University Press 2003); Leo A Loubère, The Red and the White: A History of Wine in France and Italy in the Nineteenth Century (State University of New York Press 1978). See also Giulia Meloni and Johan Swinnen, ‘Trade and Terroir. The Political Economy of the World’s First Geographical Indications’ (2018) 81 Food Policy 1; James Simpson, ‘Selling to Reluctant Dinkers: The British Wine Market, 1860-1914’ (2004) 57 Economic History Review 80; Garrie, Rémy Pech and European University Institute, Genèse de La Qualité Des Vins: L’évolution En France et En Italie Depuis Deux Siècles (Bourgogne Publications 1994); Philippe Roudié, Vignobles et Vignerons Du Bordelais, 1850-1980 (CNRS 1988); Leo A Loubère (ed), The Vine Remembers: French Vignerons Recall Their Past; Interviews (State University of New York Press 1985).

10 Bérard (n 7). Laurence Bérard and Philippe Marchenay, Les produits de terroir: entre cultures et règlements (CNRS Editions (Open Edition) 2004); Claire Delfosse and Isabelle Lefort, ‘Le Terroir, Un Bel Objet Géographique’ in Claire Delfosse (ed), La mode du terroir et les produits alimentaires (Les Indes Savantes 2011); Robert C Ulin, ‘Writing about Wine: The Uses of Nature and History in the Wine-Growing Regions of Southwest Fran...