30 - innovating food, innovating the law - david lametti

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Piacenza, October 15, 2011 "Innovating Food, Innovating the Law" Conference DAVID LAMETTI (McGill University, Canada), Trademarks and beyond Video: http://vimeo.com/31481806

TRANSCRIPT

  • 1. David Lametti McGill University The terror of terroir
  • 2. Caveats
    • Not a food law person as such
    • Rather, an IP-property theorist
    • Work is informed by an Aristotelean view of virtue, so-called virtue ethics
    • More concerned with ought than is
  • 3. TMs, CMs, GIs
    • Ethical boundaries for these?
    • Current work with Matteo Ferrari and Pierre-Emmanuel Moyse on the relationship of geography to innovation
    • My role: is to remind of the ethical dimensions of what is at stake
  • 4. Animating Scepticism
    • The relation between IP and innovation is tenuous, if not completely fallacious
  • 5. And so to terroir , food
  • 6. Terroir
    • What is unique about a geographical link to a product and/or its quality
  • 7. Luxury Items
  • 8. Geographic Qualities
    • Sun, soil, wind, water
    • And their impact on crops, etc.
  • 9. Human Intervention
    • (Traditional) Methods
    • For curing Parma ham
    • For making Champagne
    • For making Amarone or ripasso
  • 10. Terroir
    • A combination of both unique geographical qualities and and human intervention/methods
  • 11. How to protect terroir
    • TM: protects the goodwill by protecting the distinctiveness of mark, symbol, etc.
    • - probably insufficient to protect terroir
    • Passing Off Extended Passing Off
      • a common law doctrine that goes to good will in a type of product
  • 12. How to protect (2)
    • Certification Marks
      • Third party registers a mark for use by those who meet the standard
      • Common for wines, etc.
      • Often national bodies or producer organizations
  • 13. How to protect (3)
    • Geographical Indicators
      • More robust cousin of Cert Marks
      • Extra-national (EU, TRIPS) norms: quality, reputation
  • 14. GIs (from Matteo Ferrari)
    • Art. 22.1 TRIPS: geographical indications are indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin
    • Europe: reg. 510/2006:
    • - designations of origin: strong relation between food and terroir (quality exclusively or essentially due to origin)
    • - geographical indications: weaker relation between food and terroir (references to one specific quality and reputation)
  • 15. GIs
    • Have a community-oriented dimension, a form of collective property: tradition
    • Confers status, etc.
    • As GIs are not owned by a specific subject; GIs cannot be sold; they cannot be given as securities (as is case with TMs and CMs)
  • 16. How to protect (4)
    • Private certification bodies
      • Now common
      • Cf Matteo Ferraris presentation at this conference
      • Especially as regards quality: they transmit and guarantee this quality
  • 17. Scope?
    • Particularly in relation to a diaspora
    • Or simply migration of peoples
      • People bring traditions, plants, animals
      • Often to hospitable climates (often that is the point of immigrating)
  • 18. Terroir
    • Can it limit these other groups from producing (luxury) products according to traditional methods, bring products to market?
    • It is really the human element, I suppose.
        • -same method applied to different raw materials
  • 19. And so, can we prevent
    • A baked flat dough from being called a pizza?
    • A cheese made with sheeps milk from being called pecorino?
    • A cured ham from being called prosciutto speck Parma ham?
  • 20. Market rights
    • The ability to produce a product, participate in a market, and name ones product in an accurate (most accurate?) and efficient (most efficient?) manner
    • Efficiency = reducing consumer search costs
  • 21. If we go to far
    • terroir becomes a terror.
  • 22. To some extent, a new problem
    • Why? It is with supra-national bodies (EU, TRIPS) that the potential scope for CMs and GIs, and private bodies reach across borders, oceans, etc.
    • Moves with international trade
    • So how far should these principles extend?
  • 23. To generic or descriptive terms?
    • Generic: If a term becomes the product itself
      • Champagne is close, though sparkling wine still suffices
      • Parmesan cheese?
      • Mozzarella?
      • Mozzarella di bufala?
  • 24. Generic or descriptive terms
    • Descriptive
    • Cepages: Merlot, Syrah, Cabernet, Sangiovese, Reisling
    • versus classic blends of these: Chianti, St-milion
  • 25. Confusion
    • A time-worn concept in this area
    • Not a perfect concept, but does a great deal of work
  • 26. Use of qualifiers?
    • - style, -method
    • Parma -style ham, champagne- method , etc.
    • (or the contrary: Parmigiano Reggiano )
    • Can work in certain conditions
  • 27. Consumer
    • How intelligent?
    • Cdn champagne case: no consumer would possibly confuse!
    • Anne Bartow: if male-targeted product, consumer deemed to be intelligent
  • 28. Dilution-Diminishment-Tarnishing
    • A potentially separate standard for famous marks, that might be applied here too
    • Famous marks often high-quality
    • Fraught with difficulties (how distinct from confusion?)
  • 29. Consumers
    • Are better equipped than we think
    • Are capable of reading labels!
      • Think of ingrediants
  • 30. Ironically, the imprimatur
    • Helps restrict reach
    • As the marks/ GIs/ standards become more well-known, the consumer gets to now them and is less likely to ever be confused
  • 31. Old world New world
    • New world competition escapes domestic regulations regarding quality in the old world
  • 32. Old world new world
    • Need to be careful about how foods get transferred over history
      • Pasta
      • Pizza
      • Rice
      • Beans
      • Maize
      • grains
  • 33. From the sublime
    • Chianti
    • Amarone
    • Parma Ham
  • 34. to the ridiculous
    • Pasta
    • Pizza
    • Polenta
  • 35. In the end
    • Confusion is a workable standard to prevent overreach; use of official standards thems