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A Comparative Analysis of the Protection of Geographical Indications for Foodstuffs

Final Report Summary - PROGI (A Comparative Analysis of the Protection of Geographical Indications for Foodstuffs)

The project “ProGI – A comparative analysis of the protection of geographical indications for foodstuffs” had the objective to explore the proprietary dimension behind geographical indications and, in particular, to look at the differences in terms of property paradigm between appellations of origin and certification marks. This general goal had to be achieved by i) conducting a more traditional legal analysis taking into account the different models used to convey the nexus between the geographical origin of a foodstuff (i.e. so called terroir) and the quality features characterizing that foodstuff; ii) developing and applying to the GIs’ realm an interpretative analysis of the meanings, values and practices associated to the legal protection of geographical indications.
The researcher has achieved the project’s main goal by fulfilling both the sub-goals specified above. The comparative analysis has been broadened with respect to what was indicated in the project’s proposal, taking into account not only the Canadian system, but also the USA and Australian ones. The enlargement of the analysis has been motivated by the opportunity to consider other common law experiences which can shed additional light on how the traditional differences between North America and EU countries should be re-traced with respect to the protection of GIs.
With regard to the traditional legal analysis, the enquiry has shown that both common law and civil law systems are characterized by a rich variety of legal tools for protecting GIs. The reference is to certification marks, collective marks, Protected Designations of Origin (PDOs), Protected Geographical Indications (PGIs), and Appellations of Origin (AO). Contrary to the conventional wisdom according to which there would be a clear dichotomy between EU and North Amerca countries, the first employing a non-proprietary paradigm of protection embodied in the PDOs and PGIs, the second a proprietary one, represented by certification and collective marks, comparative analysis points to the fact that even in North America there are examples of non-proprietary systems of protection for GIs: in Quebec a recent statute has introduced a PDO-PGI system which closely mirrors the European system; in Ontario and British Columbia there is a system protecting, through non-proprietary indications, AOs for wines; similarly in Australia and USA there is in place a complex system regulating the use and exploitation of GIs for wines and spirits. Two elements can be underlined:
1) a partial operational convergence in the protection of GIs, through the borrowing of legal frameworks of protection of GIs that, more or less loosely, resembles the European framework;
2) such convergence occurs almost exclusively in the wine sector.
In opposition to this partial convergence, some elements of difference remain. In particular:
1) some areas (for ex. cheese or vegetables) witness the permanence of the old dichotomy between proprietary models (certification marks; North America countries) and non-proprietary models (PDOs and PGIs; EU countries);
2) EU countries put more stress on the non proprietary dimension of GIs than North America countries, which tend to abstain from discussion about the property nature even of those signs which more closely resembles the European PDOs/PGIs. It is meaningful, for example, that in North America such signs are classified not as a form of Intellectual Property, but rather as a form of labeling, placed outside the realm of any property issue;
3) the level of protection for GIs in Europe and North America differs not only depending on the type of (proprietary or non-proprietary) model implemented, but also on the specific legal tools envisioned for the protection of GIs. In Europe there is a high level of protection for PDOs/PGIs, represented for example by the prevalence of PDOs/PGIs over individual trademarks; but, at once, the legal tools employed are often rigid and do not permit to be adapted for taking into account the needs of the local producers or ‘alternative’ uses for the PDOs/PGIs (for example in terms of merchandising or sponsorship). In North America the level of protection for GIs is lower than in Europe, as it is shown, for example, in the case of conflict between a GI and an individual trademark, where the latter play on a equal foot with the first; nonetheless, the legal tools available for protecting a GI seems to be more flexible and able to be molded according to local needs.
The main, final results of this comparative analysis can be summarized in two points:
a) from a taxonomic point of view, and contrary to the conventional wisdom on the point, it can be doubted that PDOs/PGIs and, more in general, non-proprietary paradigms for GIs can be considered a form of Intellectual Property. Their circulation regime (sale, license, or other forms of partial circulation) is non-existent; there is some resemblance with some of the legal tools of protection provided for individual trademarks, but such tools can be found also in other realms outside Intellectual Property; since there is no ‘owner’ of the GI, it is not clear who can act in some cases for their protection (for example for asking compensation in case of a GI infringement or for preventing act of GIs dilution);
b) from an operational point of view, the possibility to render more flexible the European legal tools protecting PDOs/PGIs would permit to better take into account the needs of local producers and to broaden their spectrum of protection, for example vis à vis cases of dilution, as well as their exploitation in other peripheral areas, such as, for example, in merchandising and sponsorship.
With regard to the narrative analysis, the researcher has developed an highly original methodology to study the relationship existing between legal frameworks governing GIs and the meanings, practices and values associated to them. The aim of this methodology is to offer an in-depth analysis on how GIs are used, perceived and ‘lived’ in everyday life by the different players who enter into contact with them. In particular, the method focuses on how the creation and protection of a GI is narrated within a community and what are the expectations and values that their protection should achieve in these narrations. Such an interpretative endeavor has led to two main results:
a) the flexibility of GIs in conveying different meanings. Some of these meanings are centered around the need to preserve tradition from internal and external attacks: this is particularly strong in countries like Italy and France, where GIs are deeply embedded in history and society and are perceived as one of the markers of the identity of a community. Other meanings are more future-oriented: in these instances GIs are created and perceived as a catalyst to create a new identity within communities which are in search for distinctiveness and a specific place in the market. This happens, for examples, in countries like Canada or Australia, where new GIs are created not with the aim of protecting a tradition which is not existent, but to create a new one: in other words, GIs are employed as marketing tool directed towards the future, more than towards the past. In both the cases, what emerges is the plasticity of GIs and their ability to adapt to different contexts, as well to convey different meanings and to achieve multiple goals.
b) the relation between the legal models implemented and the narratives associated to the protection of GIs. On one hand, those legal systems which stress the importance of GIs in protecting tradition tend to enact regulations that are rigid and static, rendering for example difficult to amend product specifications or providing for cumbersome procedures for registering a new GI. On the other hand, those systems that prefer a more future-oriented approach to GIs tend to build flexible legal frameworks of protection, allowing for changes that permit to better mold the new, emerging GI.

Socio-economic impact
The socio-economic impact of the project can be articulated in three parts. First, the analysis has shown the potential of GIs in protecting, but also developing traditions, community resources. Differently from the usual description of GIs as a legal tool to protect historical traditions and well-established productions, GIs can be employed also to establish new traditions and productions. In this sense GIs can be conceived as a catalyst able to trigger processes of development which are not only aimed at preserving the past, but also to build the future (i.e. are future-oriented). In addition, GIs should not be conceived only as a tool to promote economic development; the analysis shows that GIs are often used also as a marking to signal social identity and community values. Thus, the flexibility of GIs highlights their ability to have a meaningful impact in the surrounding environment both in social and economic terms.
Second, the capability of GIs to be employed in different contexts and towards different goals is strongly connected to the narratives associated to them. Here two points can be underlined. On one hand, the importance of studying the narratives surrounding norms (in this specific project GIs; but the methodology can be employed also in other contexts and for other legal tools). On the other hand, the relevance of constructing narratives around norms capable of conveying meanings and values in line with the purposes and goals for which those norms were posed. Often legal scholarship focuses on the direct impact that norms can have in a given society (in terms of additional costs in conducting a given activity; in terms of barriers eliminated in exercising a given rights; etc.). But there is also a less quantifiable, but nonetheless as much important, impact deriving from how norms are narrated and used to convey messages about values, meanings and practices we associate to them. The interpretative analysis of the regulation of GIs shows how the narrations about these norms play a pivotal role in defining the identity of a community and of the place in which such community operates.
Third, the dissemination of the results obtained during the project can contribute to building a culture sensitive to the protection of GIs, but also to the problems lying behind it. The publications realized, as well as the extensive activity of conferences, seminars and lectures carried out, by dr Ferrari during the fellowship were aimed exactly to increase the awareness of the importance of protecting GIs and of exploiting their full potential both in economic and social terms. Moreover, they have been important in making operators aware of the plurality of legal models through which GIs can be protected: this is particularly important for those GIs that are exported in countries where PDOs and PGIs are not protected as such, but via different legal tools such as certification and collective marks. More in particular, the local seminars addressed to the food operators were meant to provide a support in their actual or future activities involving the protection of a GI; while the international conferences were aimed at showing the reasons justifying the protection of GIs and the benefits deriving from adopting such regulatory framework both in economic and social terms.