Category Archives: G.I

The Maple Agriculture Protection and Law Enforcement Act

This work has been released into the public domain by its author, Oven Fresh (wikipedia commons)New Englanders both enjoy and take great pride in their maple syrup.  In response to the appearance of “fake” syrup claiming to originate in Vermont, local senators have sponsored the proposed Maple Agriculture Protection and Law Enforcement, or MAPLE, Act.

According to the Los Angeles Times “Under existing law, fraudulently representing something as maple syrup is a misdemeanor punishable by up to a year behind bars.”  The MAPLE Act seeks to impose stiffer penalties on unscrupulous entrepreneurs.

While the term “Vermont Maple Syrup” could probably qualify for a certification mark, this legislation is intended to bolster food labeling requirements administered by the Food and Drug Administration, and to better ensure that only “maple syrup” can be labeled as such.

Downstream, however, producers may want to seek IP protection on a state-by state basis (e.g., “New York Pure Maple Syrup”) because modern extractive technologies are now being used to produce maple syrup without the lengthy and traditional distillation process.  These “fast track” products use the real raw ingredient (sap from the maple tree); but they do not have the unique and distinctive maple taste of the real thing.  Because they are less expensive, they could pose a greater long-term threat to legitimate producers than the fake product that sparked this proposed legislation.

Post written by Peter Bloch

Photo credit: The photo has been released into the public domain by its author, Oven Fresh

GI infringement case in India: “Darjeeling”

Results an infringement case in India involving the GI “Darjeeling”.  This post appeared on SpicyIP last month, “Breaking News: Darjeeling still lounges in Kolkata, says HC” – this week they updated the post bringing copy of the decision. “Darjeeling for Two in Kolkata

By way of an update on the “Darjeeling” Geographical Indications (GI) case we reported on some days ago, we have uploaded a copy of the decision on our site. This is a very interesting decision, not just because it is the first ever by an Indian court on the infringement of a registered GI; but also because it may have significant implications on the protection of GI rights in the country in the times to come.”

A detailed report on the decision is in the post.  They summed up saying:

“The decision was categorical in stating that the word “Darjeeling” could not be exclusively claimed by the Tea Board despite its GI and TM registrations. Crucially, the court held, “Even for a case of passing-off, the use of “Darjeeling” by a person other than the plaintiff can be complained of if the word or the geographical indication has any nexus with the product with which it is exclusively associated upon the registration.”

This raises an obvious interesting but unanswered question: what defines “nexus” as referred to by the Judge above? What degree of similarity will convince a judge to offer a different decision on passing off?”

Ethiopia’s GI Bill

Ethiopia is in the process of ratifying a Geographical Indication Bill to protect indigenous products.  According to Addis Fortune

“Among these location-branded products are Tigray and Masha white honey, Harar senga (bulls fattened to be butchered), Dendi garlic, Limu coffee, Assosa mangos, Ankober sunflowers, and Debre Brehan brandy.” 

 (Thanks to Shlomo Bachrach (http://www.eastafricaforum.net/) for the link) 

The article describes an ongoing project intended to identify products which might benefit from GI protected branding.  This looks like a good idea and might result in increased incomes for producers.  But the value of IP protection – whether a trademark or a GI – will eventually be determined by the ability of the owner to enforce the grant of rights. 

Corporate trademark owners such as Volkswagen, Levi Strauss and Starbucks invest in protecting their global brands by employing investigators to ferret out black market products and other infringements of their IP.  One of the best examples of a GI that is backed up by heavyweight enforcement is owned by Consorzio del Prosciutto di Parma (association of Parma Ham® producers, CPP).  In a well-known 2003 case, CPP successfully sued ASDA: 

“UK supermarket Asda has lost a battle to sell authentic Parma ham under the Parma brand, when the meat is sliced and pre-packed in Britain.” http://news.bbc.co.uk/1/hi/business/3043283.stm 

CPP has protected production methodology, origin, packaging AND how the ham is sliced! 

The CPP is a powerful producer group because its members sell large quantities of Parma Ham, generating sufficient revenues to protect the GI.  If indeed Ethiopian producers procure GIs for products such as Ankober sunflowers, will sales volume generate sufficient revenues to adequately police usage of the name?  Even well known global brands such as Kiwi (shoe polish) are not policed in Africa; although Kiwi polish is widely available, it is all counterfeit.  Presumably Sara Lee Corporation (which acquired a number of UK brands from Reckitt and Coleman) cannot justify the cost of enforcement in Africa. 

 The Ethiopian coffee trademarking program was well conceived and generated a high level of attention from the international press.  But there is still little evidence that this initiative resulted in any income gains for producers.  A number of NGOs provide IP training in developing countries, and it might be advisable for them to position IP as one tool of many in the market development toolbox.  Without sustainable marketing plans and enforcement programs, these IP-centric initiatives are unlikely to be successful. 

Post written by Peter Bloch, consultant to CAS-IP

A Stilton cheese from Stilton? Currently illegal…

A recent article from WSJ.com reports an ongoing row on a form of geographic indication issued by the EU on an English cheese.

Given the fame of Stilton cheese it comes as some surprise that the village of Stilton cannot legally produce the product that bears its name.  There are 6 producers (all of which are outside of Stilton) who were originally granted the EU “PDO”, Product Designation of Origin.

The EC website defines a product designation of origin as follows:

“PDO – covers agricultural products and foodstuffs which are produced, processed and prepared in a given geographical area using recognised know-how.”

Until recently it was believed that Stilton (the cheese) was never actually made in Stilton (the place). The name had come about because the distinctive cheese was served and sold in Stilton, a busy coach stop centuries ago.  This has now been challenged by a local historian who found references to the village’s own cheese production dating from the 18th century and there is talk that this could create new market opportunities for the village of Stilton.

The huge amount of brand value tied up in products such as Stilton cheese, Champagne, Parma ham etc are bound to cause some disputes, and this in turn is bound to lead to small print “nit-picking”.  Whilst reading the public comments to the WSJ article bemoaning protectionism and mindless bureaucracy, its worth remembering the valid rationale behind these certification schemes — namely to:

“encourage diverse agricultural production, protect product names from misuse and imitation and help consumers by giving them information concerning the specific character of the products”

The “Catfish Wars” – G.I and branding issues

http://www.nytimes.com/2008/10/12/magazine/12catfish-t.html?_r=1&ref=magazine&pagewanted=all&oref=slogin

This New York Times article tells the story of the “Catfish Wars”, which in itself is a fascinating tale – raising many issues about aquaculture in a development context.  Specifically however, the issues about branding, labelling, origin and the effects this can have on markets was the reason for blogging this article. Halfway through the feature there is reference to the fact that in 1991 American catfish farmers pushed for amendments to the agriculture appropriations bill to prohibit Vietnamese catfish being called catfish in the US to differentiate their product.  More recently new catfish crosses are  to be launched under a new “brand” to disassociate from the troubled name.

Rebecca Tushnet on her blog sums up the issues comprehensively:

The NYT … feature [touches on] issues of false advertising (what is a catfish?), GIs (including the use of “Cajun” on fish not raised in the US, as well as country-of-origin labeling), and branding (including US growers’ decision to switch to the name Delacata in an attempt to leave the catfish wars behind).

Read the full article for the complete picture!

WTO Doha Development Agenda; talks on Geographical Indications and TRIPS amendments to include ‘disclosure’

http://www.ip-watch.org/weblog/index.php?p=1167
See the ip-watch.org write up on Intellectual property issues that are being discussed this week at WTO meetings in Geneva.   There is pressure (particularly from EU) for progress on GI matters.  The 3 intellectual property topics on the table are: 1) the creation of a GI register on wines and spirits 2) GI extension (to other products) and 3) amendment of TRIPS to bring it in line with obligations under the CBD, namely disclosure of origin of genetic resources, evidence of PIC and benefit-sharing.  The article linked above discusses some of the reactions to those present about progress (…or lack of).  Visit the following WTO links for more info: The WTO July meeting briefing notes on Intellectual Property: http://www.wto.org/english/tratop_e/dda_e/meet08_brief05_e.htm And, for agriculture: http://www.wto.org/english/tratop_e/dda_e/meet08_brief01_e.htm

India, Pakistan and the Pashmina goat

http://spicyipindia.blogspot.com/2008/06/guest-post-by-latha-nair-on-gi.html
This article looks at a current case involving trans-border geographical indications.  The article posted on the SpicyIP blog today was written by an intellectual property practitioner from India, Latha R Nair. It’s a great “GI controversy” case study.