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/31481806TRANSCRIPT
David Lametti
McGill University
The terror of terroir
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”
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
Animating Scepticism
• The relation between IP and innovation is tenuous, if not completely fallacious
And so to terroir, food
Terroir
• What is unique about a geographical link to a product and/or its quality
Luxury Items
Geographic Qualities
• Sun, soil, wind, water
• And their impact on crops, etc.
Human Intervention
(Traditional) Methods
•For curing Parma ham
•For making Champagne
•For making Amarone or ripasso
Terroir …
• A combination of both unique geographical qualities and and human intervention/methods
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
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
How to protect (3)
• Geographical Indicators
– More robust cousin of Cert Marks– Extra-national (EU, TRIPS) norms: quality,
reputation
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)
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)
How to protect (4)
• Private certification bodies– Now common– Cf Matteo Ferrari’s presentation at this
conference– Especially as regards quality: they transmit
and guarantee this quality
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)
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
And so, can we prevent…
• A baked flat dough from being called a “pizza”?
• A cheese made with sheep’s milk from being called “pecorino”?
• A cured ham from being called “prosciutto” … “speck” … “Parma ham”?
Market “rights”
• The ability to produce a product, participate in a market, and name one’s product in an accurate (most accurate?) and efficient (most efficient?) manner
• Efficiency = reducing consumer search costs
If we go to far …terroir becomes a terror.
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?
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?
Generic or descriptive terms
Descriptive
•Cepages: Merlot, Syrah, Cabernet, Sangiovese, Reisling
•versus classic blends of these: Chianti, St-Émilion
Confusion
• A time-worn concept in this area
• Not a perfect concept, but does a great deal of work
Use of qualifiers?
• “- style”, “-method”
• “Parma-style” ham, “champagne-method”, etc.
• (or the contrary: Parmigiano Reggiano)
• Can work in certain conditions
Consumer
• How intelligent?
• Cdn champagne case: no consumer would possibly confuse!
• Anne Bartow: if male-targeted product, consumer deemed to be intelligent
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?)
Consumers
• Are better equipped than we think
• Are capable of reading labels!– Think of ingrediants
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
Old world –New world
• New world competition escapes domestic regulations regarding quality in the old world
Old world – new world
• Need to be careful about how foods get transferred over history– Pasta– Pizza– Rice– Beans– Maize– grains
From the sublime …
• Chianti
• Amarone
• Parma Ham
… to the ridiculous
Pasta
Pizza
Polenta
In the end
• Confusion is a workable standard to prevent overreach; use of official standards themselves transmits information so well to consumers that competing products will be seen as inferior
• Ironically, no need to ban the “competitors”, provided they make no false claims, not confusing
Quality
• Will always win out in the end
• The real relation is between terroir and quality
• To some extent GIs will help identify quality, but can’t replace quality
Focus (for agro-food industry)
• Quality (tradition, terroir)
• No terror here!
Grazie