American Producers Growing America's Agricultural Economy
Thousands of American farmers are building a stronger rural agriculture economy - creating sustainable rural development, growing our economy and satisfying consumer demand for distinctive, high-quality foods and beverages. How can we help them achieve their full potential?
Background
Geographical Indications (GIs) are defined by international law (Art. 22.1 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights) as: “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”.
Successful GIs (such as Scotch whisky, Napa Valley wines, Idaho Potatoes, Café de Colombia, Aceto Balsamico di Modena, Argane, just to name a few) command a price premium as the result of market differentiation. The price premium yields a collective value added that all producers can share, and the sharing of a particular market niche by multiple producers is a distinguishing feature of a GI. As trade in GIs grows, producers generally seek formal recognition of, and legal protection for, their GIs, as they fight against usurpation of their product names and other forms of unfair competition.
As a WTO signatory, the US protects GIs according to articles 22, 23 and 24 of the TRIPs Agreement. The TRIPs agreement is not specific about how each country should do this. As a result, the US has not set up a unique system for protection of GIs. There are at least five methods to protect distinctive products’ names which might qualify as GIs in the US (in some cases they might overlap, as a product’s name might benefit from more than one system.):
For our purposes, “American Origin Products” (AOP) names refer to US geographical distinctive products’ names which meet the TRIPs GIs definition.
Issues at stake for US businesses
This patchwork of individual systems and authorities encourages legal uncertainty, and raises practical issues for the US private actors relying on distinctive product names for their business, in particular:
1. There is no formal list of (or criteria for) qualifying GIs in the US, as not all names recognized/protected under the above-mentioned systems can be deemed GIs. On the attempt to identify a list of US GIs, see oriGIn/ Wine Law and Geographical Indications course at the University of California Berkeley School of Law study: http://www.origin-gi.com/images/stories/PDFs/English/papers/Geographical_Indications_in_the_United_States_-_Supporting_Memo_FINAL_WEB.pdf;
2. There are multiple US authorities involved in distinctive product names recognition and protection. Moreover, the level of protection of distinctive product names is not uniform or sufficient. For an analysis of the identified systems available to protect GIs in the US click the link below:
Thousands of American farmers are building a stronger rural agriculture economy - creating sustainable rural development, growing our economy and satisfying consumer demand for distinctive, high-quality foods and beverages. How can we help them achieve their full potential?
Background
Geographical Indications (GIs) are defined by international law (Art. 22.1 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights) as: “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”.
Successful GIs (such as Scotch whisky, Napa Valley wines, Idaho Potatoes, Café de Colombia, Aceto Balsamico di Modena, Argane, just to name a few) command a price premium as the result of market differentiation. The price premium yields a collective value added that all producers can share, and the sharing of a particular market niche by multiple producers is a distinguishing feature of a GI. As trade in GIs grows, producers generally seek formal recognition of, and legal protection for, their GIs, as they fight against usurpation of their product names and other forms of unfair competition.
As a WTO signatory, the US protects GIs according to articles 22, 23 and 24 of the TRIPs Agreement. The TRIPs agreement is not specific about how each country should do this. As a result, the US has not set up a unique system for protection of GIs. There are at least five methods to protect distinctive products’ names which might qualify as GIs in the US (in some cases they might overlap, as a product’s name might benefit from more than one system.):
- Trademarks (including certification and collective marks) available to all kind of products (administered by the US Patent and Trademark Office – PTO);
- American Viticultural Areas (AVAs) available for wines, administered by the Alcohol and Tobacco Tax and Trade Bureau (TTB);
- Political appellations available for wines;
- Labelling rules for geographical names for distinctive types of distilled spirits, available for spirits, administered by the Alcohol and Tobacco Tax and Trade Bureau (TTB);
- Marketing orders available for fruits, vegetables and crops, administered by the Department of Agricultural (USDA).
For our purposes, “American Origin Products” (AOP) names refer to US geographical distinctive products’ names which meet the TRIPs GIs definition.
Issues at stake for US businesses
This patchwork of individual systems and authorities encourages legal uncertainty, and raises practical issues for the US private actors relying on distinctive product names for their business, in particular:
1. There is no formal list of (or criteria for) qualifying GIs in the US, as not all names recognized/protected under the above-mentioned systems can be deemed GIs. On the attempt to identify a list of US GIs, see oriGIn/ Wine Law and Geographical Indications course at the University of California Berkeley School of Law study: http://www.origin-gi.com/images/stories/PDFs/English/papers/Geographical_Indications_in_the_United_States_-_Supporting_Memo_FINAL_WEB.pdf;
2. There are multiple US authorities involved in distinctive product names recognition and protection. Moreover, the level of protection of distinctive product names is not uniform or sufficient. For an analysis of the identified systems available to protect GIs in the US click the link below:
| aopa_us_systems_for_gis.docx |
3. As a result, it is problematic for US GIs to obtain protection in export markets (except in the case of bilateral agreements where US distinctive product names are included to be recognized in the counterpart’s jurisdiction, such as: the United States /Australia free Trade Agreement and the EC/US Agreement on trade in wine). To view a powerpoint presentation created by Scott Gerien for the Napa Valley Vintners Association describing these issues, click the link below:
| scott_gerien_presentation_for_napa_valley.pptx |
A road-map for the future:
The American Origin Products Association (AOPA) exists to create a stronger economy for distinctive product names closely tied to their region of origin, and to seek recognition and protection in the US and abroad.
Our objectives are to:
Promote a dialogue and an exchange of best practices among all AOP stakeholders:
- Owners of geographically distinctive trademarks, certification and collective marks,
- Products Subject to Marketing Orders,
- Products subject to AVAs and political appellations,
- Products defined as distinctive types of distilled spirits.
Work with US authorities (USPTO, TTB, USDA, USTR, etc.) to:
- Create of a list of qualified US distinctive product names, which correspond to the GI definition.
- Ensure adequate legal systems for US distinctive product names
- Obtain legal protections for US distinctive product names in US and world markets.
The producers and producer groups represented by the AOPA appreciate your support to achieve these goals.
