Geographical Indications In The TTIP: Faites Vos Jeux

Ever heard of Törkölypálinka? It is a Hungarian grape marc spirit and one of approximately 200 geographical origins listed by the European Commission negotiators of the Transatlantic Trade and Investment Partnership (TTIP). In their newly published proposals, the EU negotiators laid out their ideas on GI protection in the deal, and point to an earlier EU-US agreement with regard to GI protection of wines and spirits. But they also acknowledge the need for considerable bridging between the two systems. GI protection is expected to be one of the highly controversial issues in the “end game” of TTIP.

For Europe, the protection of European geographical indications has been high on the list of essentials for the TTIP. The Commission negotiators in an explanatory paper give their reasoning for the specific protection for Camembert de Normandie, Turron de Alicante, Tettnanger Hopfen and other foodstuff. European producers of the regional specialties are concerned that their existing protection will fade with US producers not bound by it.

Link to all new published EU proposals is here.

EU Concerns: Names Taken, Trademark System Too Costly

From consultations with the producers of French, Italian or Austrian cheese, Czech and German beer or Spanish olive oil or “jambon”, the Commission conveys the concern that “the level of protection for agricultural foodstuffs is lower than for wines and spirits.” As the sui generis GI protection they are familiar with does not exist in the US, the EU GI associations would have to register trademarks for the US market.

Yet that is considered too costly for the level of protection it would provide, the Commission wrote, plus the EU GI crowd is worried about the funding necessary for enforcement. Above all, the GI producers are faced with the fact that their names – or similar names – “have been already registered as trademarks (or as part of a composite mark) by a third party with no genuine link with a GI,” the Commission wrote.

Sometimes even “descriptive geographical indications are registered as trademarks,” or GIs could not be protected because their respective names were considered generic names in the US. Worst case scenarios would be that they could be sued for marketing their products under the geographical names in question.

Lists and Potential Bridging of Systems

Included in the package of proposals published by the EU TTIP negotiators this week therefore are two lists on GIs. One covers Törkölypálinka and other spirits from Europe. The other, much longer list, includes the other foodstuff from beer to cheese or sweets with France’s list being the longest with 48 GI names.

In the explanatory note, the Commission underlines that despite the fact that the US has no sui generis GI protection, there had been earlier agreements in transatlantic trade. In 1994, a mutual agreement on the protection of some spirits was concluded and in 2006 there was a bilateral agreement on the “trade in wine” and the protection of some EU grapes/GIs. Compromises were made back then already with Article 6 listing 17 EU wines from Burgundy to Tokay, which, unlike all the other names protected, are “not guaranteed exclusive protection in the US territory.” Instead, the names could be used for non-EU versions, given that they used a special label (COLA).

A list of ways to help mitigating a crash between the two systems are included in the explanatory part and the raw skeleton for the actual TTIP text.

The Food and Drug Administration and other US agencies’ “standards of identity,” as well as the FDA’s “labeling requirements” and the Federal Trade Commission’s protection against fraud and false advertisement could all constitute potential legal avenues to increase the level of protection for GIs, help with administrative enforcement and reverse the burden of proof from GIs holders to the misusing third parties.

Prior-use exceptions and transitional periods as well as some limits to prevention of the use of generic names, as well as potential co-existence solutions are included in the rough draft for the actual legal TTIP GI chapter. Will the US negotiators go over these bridges? Experts expect some fights over the GI issue in the coming weeks and months.

More Documents on Regulatory Cooperation

Together with the GI papers, the EU Commission also published a set of documents on regulatory cooperation, trade in goods and customs duties, agriculture, services and customs and trade facilitation, with several textual proposals. Consolidated (merged) proposals of the parties remain a closed matter despite the continued criticism over the lack of transparency of the TTIP negotiations.

 

Image Credits: WIPO