11 Colum. J. Eur. L. 623 (2005)

Lilian V. Faulhaber. J.D., Harvard Law School.

Twelve centuries after monks living near the French village of Roquefort-sur-Soulzon presented Charlemagne with a wedge of “soft, fat, somewhat friable cheese, showing veins and dots of greenish black and white color,” Roquefort continues to be considered the “king of cheeses” by many. This foodstuff is still produced in the natural caves of Le Combalou, adjacent to the town of Roquefort-sur-Soulzon, primarily by members of La Société Anonyme des Caves et des Producteurs RWunis de Roquefort (“La Société”). Approximately 1600 tons of this foodstuff are produced annually. According to various culinary experts, the unique flavor of Roquefort requires three elements: the use of sheep’s milk, the inoculation with the Penicillium roqueforti that grows inside the caves of Le Combalou, and the special maturing conditions of these caves. Over the years, however, many producers of blue-veined cheeses that do not meet these requirements have attempted to profit from the reputation of this celebrated cheese by labeling their own products “Roquefort.” In 1925, the French government endeavored to prohibit such free- riding through the passage of a law limiting the Roquefort designation to cheese produced in the region of Roquefort-sur-Soulzon.6 Thus was born one of the earliest geographic indications.

Geographic indications, as defined by the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), are “indications which identify a good as originating in the territory of a member or region or locality in that territory where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” While Roquefort may be one of the more famous examples, geographic indications abound, including “Idaho” for potatoes, “Parma” for prosciutto and “Vidalia” for onions.

The term “geographic indications” will be used in this Note to include both protected designations of origin (“PDOs”) and protected geographic indications (“PGIs”). Although the European Union defines PDOs as having a more direct link between the geographical region and the quality of the good produced there, producers and consumers of all foodstuffs protected by geographic indications argue that the quality of the foodstuff is directly attributable to the geographical region. Furthermore, even those regimes that differentiate between PDOs and PGIs extend protections to both, thereby effectively conflating the two into one category of geographic indications.

Geographic indications are often used to sell wine, spirits and foodstuffs, but they can also distinguish certain human factors associated with a geographical area, such as traditional methods of manufacture. Their value to producers lies in three primary areas: as source identifiers, identifying goods as originating in a particular region; as indicators of quality, alerting consumers to the fact that goods originate from an area known for its quality or reputation; and as business interests, promoting the goods of a particular area.” As a press release from the European Union emphasized, the protection of geographic indications is necessary “to ensure that producers and consumers get a fair deal.”

While the general concept of protecting geographically-significant products from competition has existed for centuries,13 the protection provided to geographic indications varies significantly, both between countries and according to the product being protected. Although the TRIPS Agreement, which entered into force on January I, 1995, has moved toward harmonizing the standards of protection and enforcement at the international level, the effects of this agreement are still fairly limited in that it offers a two-tier system of protection. Wines and spirits are offered additional protection under Article 23, which protects against any use for products not originating in the location indicated by the geographic indication. All other products, including foodstuffs, fall under Article 22, which only protects against the misleading use of a geographic indication. This difference means that, while any use of the term “Cognac” to refer to a product that does not originate in the protected region is per se unlawful, use of the term “Parmigiano Reggiano” will not be deemed unlawful until it has been proven that the specific designation misled consumers. Protection of geographically significant foodstuffs thus requires that producers meet a burden of proof not required of producers of geographically-significant wines and spirits.

Two entities that offer greater protection to geographic indications of foodstuffs than that provided under Article 22 are the European Union (“EU”) and the United States. Since the protection of foodstuffs in both Europe and America is a less settled area of law than the protection of wines and spirits, 18 this Note will explore the different protection and enforcement of geographic indications of foodstuffs in the European Union and the United States. While this comparison is itself valuable given current uncertainty as to whether the EU or U.S. approach would prevail if the TRIPS Agreement was expanded to grant foodstuffs greater international protection, it also highlights fundamental differences between Europe and America – and predicts significant changes that could arise in the event of future harmonization of the protection of geographic indications.

Although both the United States and the European Union have chosen to protect these designations at the federal or EU level, both have approached this area of intellectual property quite differently. The distinct systems they have developed to protect geographic indications reveal more than just different approaches to foodstuff protection. By comparing these two systems, this Note provides insights on continuing differences in European and American approaches to federalism, as well as the treatment of consumers and producers in these two entities. While a comparison of intellectual property protection may not appear to implicate federal issues, marks protecting geographic indications are unique in that they are by their definition localized. By permitting sub-federal entities such as states and Member States to protect such products, the United States and the European Union must consequently address issues of state and federal power that are not necessarily associated with the protection of other marks. Moreover, the issue of whether to grant any protection raises the issues of consumer and producer protection. While producers generally want the highest possible level of protection for their own products, consumers prefer a market free of protection, where competition ideally lowers prices and ensures consumer choice. In choosing between these demands, the EU and U.S. have also revealed their preference for either consumer or producer protection. As will be shown in this Note, however, this preference is tied to the aforementioned attitudes toward federalism and must be considered when creating an international regime for geographic indications of foodstuffs.

As will be outlined in Parts II and III, the European Union and the United States have each adopted a system to protect geographic indications at the federal level that combines government regulation with judicial enforcement. In order to account for this combined judicial-regulatory approach, this Note will outline the regulatory schemes before focusing on representative cases brought before the European Court of Justice (“ECJ”) and various American federal courts in order to determine how these schemes are implemented, applied and enforced in actuality. Part II will address the European Union, while Part III will focus on the United States. Each of these sections will analyze the respective European and American cases and regulations in order to glean general lessons from each region, before Part IV compares the two approaches in order to shed light on the larger lessons of federalism and producer protection that can be seen through the lens of geographic indication protection. Part V will conclude the Note.