For well over a century, the notion of a distinctive link between regional products and their places of origin has been articulated in the language of terroir. This type of causal relationship – where the physical geography factors within a region leave their distinctive traces upon the end product – is reflected in the definition of a geographical indication (GI) found in Article 22.1 of TRIPS. However this chapter focuses on the underdeveloped, yet increasingly utilised possibility of a link between product and place resting on a ‘reputation… that is essentially attributable to its geographic origin’.
As GI subject matter expands beyond wines, spirits and agricultural products to encompass confectionaries, charcuterie, cheese and crafts, a deterministic ‘physical geography’ explanation loses traction. This chapter proposes that historical evidence can complement that of geography, allowing us to more meaningfully answer the question of when a product’s reputation can be said to be essentially attributable to its geographical origin.His 'Genericide: The Death of a Geographical Indication?' in Gangjee (ed) Research Handbook on Intellectual Property and Geographical Indications (Edward Elgar, 2016) 508 provides
a legal framework for deciding when a geographical indication (GI) has crossed over the line into generic usage, as the common name for a type of product (such as cheddar cheese). Genericide is a process and one that is highly controversial. While Art 24.6 of TRIPS has emerged as the international reference point, it is remarkably underdeveloped. The question of whether a designation has become the ‘common name’ for a type of product requires an empirically informed answer. However, when setting out the test for genericide, there are opportunities for normative inflections to be introduced.
Section 2 sets out the history of this controversial area and the commercial stakes which influence legal determinations. Section 3 identifies the four main structural issues to be addressed (which regime to opt for; who bears the burden of proof; what is the threshold or tipping point for genericide; and how the factors should interact). Section 4 proceeds to analyse the categories of evidence, drawing on comparative experiences with such categories in operation. Here the perception of the target audience (consumers or the general public, as informed by trade and expert opinion) must be gauged against the contextual backdrop of market conditions, legislative or bureaucratic classifications of the term and the actions of the rights holder. Section 5 concludes with a review of the options for preventing generic use in sui generis GI regimes, while also suggesting the avenues for reviving terms that were formerly GIs but have been declared generic. The comparative analysis is offered as a practical resource for decision makers, while also serving as a reminder that the overarching enquiry should remain focused on the public perception of the term, as opposed to the competing commercial interests at stake.'Geographical Indications in Africa: Opportunities, Experiences and Challenges' by Michael Blakeney in (2016) 38(5) European Intelletual Property Review 290 comments
This article examines the opportunities and reasons for protecting, managing and promoting geographical origins, and the concrete experiences in protecting and using geographical indications in Africa, taking examples from selected African countries as well as highlighting the challenges that Africans have and will face in using such a tool. It discusses the findings of benchmarking studies commissioned by the World Intellectual Property Organization of agricultural products sourced from Burundi, Gambia, Uganda, Sudan and Tanzania, and reviews experiences in protecting and using origin indications in Africa and the challenges in protecting, managing and promoting geographical indications on the continent.Provenance of Australian food products: is there a place for Geographical Indications (RIRDC Publication No 15/060, 2015) by William van Caenegem, Peter Drahos and Jen Cleary
the potential advantages of adoption of an Australian regime to allow the registration of Geographical Indications of Origin (GIs) for food products other than wine. The report is important as it examines the potential of such a system to enhance regional investment and jobs. The topic of GIs in Australia has to date been approached through the prism of the potential implications for international negotiations concerning increased protection for GIs, which has been seen as predominantly advantaging established European GIs. There are legitimate concerns in relation to the international trading arrangements around GIs, not the least being the potential for GIs to be used as a means of protection and preventing market access.
Australia’s GI registration system for wines substantially came about through negotiations with the EU which offered market access advantages for Australian wines in return for domestic protection of European terms.
This report seeks to canvass the potential advantages of a food GI register from the perspective of regional economic development. The study focuses on the question whether higher quality local production of other foods might be encouraged by this particular form of provenance brand protection. Other legal remedies against free riding on provenance brands already exist in Australia, but they have disadvantages of complexity and high thresholds of proof. GIs are not privately owned like standard trademarks, are more permanent in nature, and potentially offer an additional and effective weapon in the armour of local producers who want to invest in and promote the unique character of their iconic local product. This can help them in the domestic market but may also present some advantages in agricultural export markets where imitation of well-known brands is a problem.
The potential beneficiaries of a food GI registration option are local producers who can collectively manage their provenance brand and share their investment in high-quality products that consumers come to recognise as uniquely emanating from their particular region. It offers them an additional chance to diversify and distinguish their product and become price-makers rather than price-takers producing a standard commodity product. It may add to their bargaining power up the value chain with distributors and retailers.
Capturing more of the value of high-quality products that reflect local conditions, including clean and green source environments, is potentially attractive for producers in many agrifood sectors, from vegetables to fruit, beef to pork, nuts to seafood and cocoa beans to vanilla pods. The report canvasses actors across the diverse business models of many of our rural industries in locations and food industries around the country. The views and information derived from many stakeholder interviews richly inform the conclusions.
The report finds that GI registration for food could should be considered as an additional tool for the maximisation of brand value in Australia.The authors comment
In 1993 Australia passed legislation creating a system of registration for geographical indications (GIs) for wine, but not for non-wine food products. A GI (for example, Barossa Valley) indicates that a good possesses a special characteristic of some kind by virtue of its origin in a defined place. The policy question of whether Australia should introduce a GI registration system for non-wine food products has usually been approached through the lens of Australia’s agenda in trade negotiations (such as those in the World Trade Organization), especially the belief that most of the benefit of any globally increased protection for GIs would accrue to a small number of European countries. While recognising that the international trade dimension is important to assessing the costs and benefits of GIs, in this Report we approach the topic not from a trade negotiations perspective, but from a regional development perspective. The use of GIs is generally justified on the basis that they offer rural regions development benefits in terms of greater investment in local value-adding, better incomes for farmers and greater employment opportunities for future generations. Our aim is to assess whether a food GI registration regime could be a useful tool to support rural and regional development in Australia.
Who is the report targeted at?
The report is aimed at a wide readership that includes policymakers in the agricultural, food and regional development sectors, peak farming bodies and other business organisations, brand committees that have been set up to market regions, food and tourism groups, regional development agencies, as well as agricultural producers, processors, distributors and retailers in the food sector.
Regional economies dependent upon agriculture have experienced unprecedented change in Australia over the past 100 years. Increasing production efficiencies, integrated supply chains and increasing commoditisation have seen the decline of agriculture as a major driver of national growth and a decline in regionally based agricultural jobs.
To sustain themselves, regional communities increasingly need to either diversify or intensify their economies – often requiring external investment which brings with it the risks associated with the loss of control of local assets and infrastructure. Regional food producers find themselves in a world where they are much more affected by private regulatory initiatives in which retail actors in the supply chain set standards and create codes of practice around food safety, quality, animal welfare, environmental management, labour standards and so on that result in audit and certification obligations. Compliance with these and other regulatory standards has led to safe products that accord with the standards imposed. Some of these products having distinctive attributes, although this may not always be communicated to consumers.
Australia’s regions have the potential to turn some of these products into ‘iconic’ local products. Currently the potential value of such products for regional producers may not be fully realised because of a lack of marketing strategies or because other actors in the value chain are capturing this value through branding strategies underpinned by trade mark protection. At present in Australia there are a number of ways in which a regional or local name can be protected, and the potential value associated with that placename extracted. These include:
- registration as a certification mark;
- registration of a placename as an ordinary or standard trade mark; and
- reliance on consumer deception and passing off laws.
A GI scheme deserves consideration as a useful additional branding/marketing option since it has distinctive legal qualities.
GIs are public law instruments and not private property rights. Individual producers cannot own GIs. In essence they remain embedded in precisely defined regions. They have a great degree of permanency, being available for successive generations of producers in regions as public goods. As potential regional assets they can ground cost-sharing strategies and help producers achieve scale in marketing. They benefit from a stronger legal protection regime that does not require proof of consumer deception or misrepresentation and has few derogations or exceptions.
As well as undertaking a comprehensive study of the relevant literature, we undertook a combination of desktop research and 172 semi-structured interviews across a broad geographic swathe of Australia’s agricultural landscape and a diversity of food production value chains. Interviews were also conducted with regional development agencies; state and federal government agencies; regulatory bodies and industry peak bodies and groups to provide both context and a more nuanced understanding of the operating environments of regional food and agricultural businesses. Our sampling strategies were of two basic kinds. We chose crucially important cases that were information rich and from which one might be able to make generalisations. The wine case study was an obvious case to choose because the wine industry in Australia has direct experience of a GI system. Other important cases included regions associated with the production of premium goods that might potentially have iconic status (see the King Island case study). Our second sampling strategy was to maximise the variety of industries and regions for investigation. Australia’s large land mass supports a wide range of climatic and geographical zones. The resulting diversity of its agricultural production means that there is a potentially large class of industries to which the GI issue might or might not be relevant. This second sampling strategy allowed us to evaluate the limits of any generalisations produced by the first sampling strategy, and evaluate many different business models and supply chains. A detailed discussion of our methods is to be found in Section 2.
Our wine GI case study indicated that some wine GIs have generated two effects that may bring regional benefits. One is what we call a reciprocal spillover effect and the other is an investment-inquality effect. We noted the reciprocal spillover effect in the Granite Belt region in Queensland, where the registration of the ‘Granite Belt’ GI had clearly delineated a wine-producing region that was able to be separately identified to wine production in greater Queensland. Winemakers in the region were able to build reputation on the ‘Granite Belt’ name and as this occurred, other businesses in the region, particularly tourism and food businesses, benefitted and in turn generated benefits for the wineries. The GI was identified by interviewees as critical to developing a group identity.
In terms of the investment-in-quality effect, we observed that the certainty of the GI boundary appears to have some role in attracting investment in quality. Once a GI precisely defines an area with a reputation for the production of quality wines it also defines who is a member of the resultant community of shared commercial interest and who is not. Once those in a GI region commit to quality they increase their chances of attracting likeminded investors. The fact that nobody can use the GI in description of goods that do not meet the origin criteria provides a level of protection against free riding, although its extent may depend on the design of the regulatory system (in particular whether in addition to rules of origin, other production standards are mandated). Because GIs are not privately owned and are permanent they also encourage local collaboration rather than competition over the use of a regional name to promote products.
GIs also have the potential to mitigate the ‘either/or’ choice: either external investment or local control. With GI registration there is potential to have both external investment (as has been essential in the case of King Island and for many other regional economies) while maintaining some measure of local control (which has been significantly eroded over time on King Island). More generally we found that although Australian agricultural production is of a very high standard, once product leaves the farm gate, investment in branding and promotion falls short. Farmers would benefit from a more focused and collaborative approach to post-farm gate promotion of the unique qualities of their products, and GIs are one option for this.
We find that although there is no universal need for registered GIs, there is a case to be made for the introduction of a food GI registration system. Our data show that the availability of flexible, low-cost GI registration could be a useful response to some local issues and conditions in particular regions and relating to particular problems. There is no ‘one-size-fits-all’ GI system that will accommodate the plethora of business models or the broad diversity of agricultural and food industry activity across Australia. That diversity ranges across high volume, commodity production in areas such as grains, fruit, vegetables and livestock, with little value-adding occurring in the region of product origin; through to high-value goods such as whisky, cheese, chocolate and truffles where much of the valueadding occurs within the region or origin and is dependent upon characteristics of the region as a signifier of quality.
In the case of high-value goods aimed at discerning consumers, either through direct sales, or through broader distribution channels, the option of GI registration may well be beneficial. Thus Tasmanian whisky producers might benefit from the advantage of having uniform and mandatory regulation as to what can legitimately be referred to as Tasmanian whisky. Mareeba mango growers might benefit from delineating precisely the circumference of Mareeba, and from taking advantage of the established reputation of their mangos in China more effectively. Beef producers on the Atherton Tablelands could benefit from specifying the exact boundaries of the natural grasslands that survive on high rainfall and volcanic soil.
Whatever form the design of a food GI register might take, we emphasise that while the principle of flexibility is important and necessary to support the diversity of Australian food production, the credibility of such a register and system should not be compromised. This is particularly important in terms of consumer trust in such a system.
For some regions there may be an advantage in thinking about ways in which to use GIs and quality specification standards to communicate in a credible way a commitment to ‘clean and green’ production. Producers may, if they set credible standards of local origin, also use GIs to inform consumers about genuinely local products. A credible GI scheme can be a useful counter to any indeterminacy in country of origin labelling.
Australia has considerable design sovereignty when it comes to creating a GI scheme that is suitable for Australian conditions. During the fieldwork, interviewees would make general suggestions about the kinds of matters that a GI register should address. We have synthesised these suggestions in the form of design principles (see Section 8): flexible rules of origin and specification, local initiation, low cost but effective enforcement.
Our recommendation is that the design of a GI registration scheme for Australia’s food sector should become an integral part of the planning and policy conversations taking place around the future of Australian agriculture. It is clear that the importance of branding as a source of comparative advantage in domestic and export agricultural markets will increase. For Australian farmers and regions the imperative to plan around branding has never been greater. GI registration should be made available as one branding option