The Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)—the most important international agreement on Intellectual Property—defines, at article 22, the concept of Geographical Indication (GI) as follows:
“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.”
Why is it then that the “Kashmir Pashmina” is a protected GI in India while Harris Tweed-cloth is not an EU/UK GI? The answer is that the EU GI Quality Schemes protect only four classes of products:
- agricultural products and foodstuffs
- aromatised wines
The UK, which after Brexit has basically copy-pasted the EU model, does the same. Are you puzzled because you believe that jewels, musical instruments, ceramics, artistic glass, furniture, marble, stones, and other non-agricultural products should not be treated differently from the products mentioned earlier? You are absolutely right. Indeed, the EU, and now the UK, are the only two jurisdictions in the world—at least among those I know—that, despite having a registration-based sui generis GI regime in place, protect only a specific selection of products. As a lawyer, I am used to exploring the rationale behind legal rules. Yet, after years of research, I am convinced that there is little to no argument that can justify this bizarre setup.
There is the history of sui generis GIs, of course. More than a century ago, French winemakers were looking for a new way to protect their products from adulteration and counterfeiting while, at the same time, ensuring origin. They—and their representatives in the Parliament—came up with an idea: a system that can combine law and agronomy. This led to the Appellation d’Origine (Appellation of Origin, AO), a system that protects products strongly linked to the specific physical and environmental peculiarities of a place, including the relevant local know-how. The AO is the grandmother of the EU Protected Designation of Origin (PDO), that is the red circle that you can see on the packaging of Parmigiano Reggiano PDO or Prosciutto di Parma PDO whenever you enter a supermarket.
The idea of GIs as a tool to protect products that, like vines, exclusively grow from the soil is history, however. Indeed, the French Parliament discovered how simplistic this view is in 1925, when it discussed how to protect Roquefort cheese. Is it possible to protect it as an AO or can only a collective mark do the job? Well, today Roquefort is a successful PDO and I can assure you that Parmigiano Reggiano does not grow from the soil. So now you know how the discussion in the French Parliament ended.
There is more. Today, most EU GIs are registered as Protected Geographical Indications (PGI). This is a quality scheme whose definition is similar to that of the TRIPs Agreement. In particular, a PGI can protect goods that are related to their place of origin not only because their quality, but also because their reputation or any other relevant linking factor is determined by the features of the designated area. Moreover, unlike PDOs, which must be made from raw materials entirely sourced from the designated areas, PGIs allow more flexibility as to their origin.
These combined elements, reputational link and flexibility in the sourcing of the raw materials, make PGI applicable to non-agricultural products. Is the reputation, history, and relevant know-how of Harris Tweed-cloth specifically linked to the UK or specific areas of it? Yes. Is it possible to codify a set of rules for its production, including specific indications concerning the sourcing of raw materials? This was done long ago. Therefore, this product could become a PGI, if the quality schemes were extended to non-agricultural products. Is this theory? Not really. In fact, something similar already happens in countries like India that protects more handcrafts than food or drinks. Also, PDO could play a role, for instance for protecting marbles and stones.
In the EU, the protection of non-agricultural GIs has been a very complex issue with plenty of stop-and-go over the last fifteen years or so. Recently, however, the EU Commission has started a new round of public consultations on this topic and, in parallel, it has launched specific research projects to assess the viability of a new reform in this area. As a scholar who is currently involved in this process, I believe that the time is ripe and that this gap in the EU sui generis GI law will be filled in the near future. I believe that the UK can and should do the same.
Featured image by Timo Wielink via Unsplash