Sunday, October 08, 2006

Works in progress: Sean Pager

Sean Pager, Creeping Genericide: The Dilemma of Geographical/Process Certification Marks: I was late coming in because of panel transitions. Processes can move even when geographies don’t. Pager is interested in dual meaning – allowing California wine growers to identify method champagnoise but not to call their product Champagne.

Scott Boone: What’s the problem with tequila?

A: Consumers may not know the significance – tequila is made from a particular succulent cactus, the blue agave. Other agave liquors are not tequila.

Boone: Isn’t that analogous to not knowing who the source is but knowing that there is a source? So it’s not generic even if consumers don’t know production specifics, just know it’s special?

A: Begs the question of what consumers have to know. They know tequila isn’t bread, but if they don’t know that it’s limited to certain types of agave they might think that all agave liquor can be tequila.

David Welkowitz: If you don’t know what constitutes the status of being generic (given that the existence a group of products of different sources with the same certification mark makes it hard to tell what the unifying characteristic is other than the mark) it makes it hard to explain why you’d want to protect the identifier. Are you protecting the standard, or are you protecting the consumer’s understanding of whether there is a standard? The European system as described is about protecting the standard itself and thus the producers, not about protecting the consumer. That’s divorced from the common understanding of genericity, which depends on consumer protection.

A: Protecting the standard still has a consumer protection function, even if consumers don’t understand what they’re getting – they get the tequila to which they’re accustomed. Processes should presumptively matter – ingredients matter – more than geography matters. Processes and ingredients don’t survive and thrive at random. (Though arguably geographic reputation doesn’t either.)

Q: Can you really separate geography from process that way? The process and the grapes and the location all combine into champagne.

A: Wine is a special case because of the mystification of terroir; alcohol is also more generally regulated separately and more controlled than, for example, Roquefort cheese.

Q: Isn’t the real question for the consumer whether the tequila is good? As a factual matter, which actually changes the taste of the tequila, the place or the ingredient?

A: In general, he thinks process is more likely to affect quality than geography, though he agrees that it will vary by product. If tequila became generic, Mexican producers could still advertise “Made in Mexico” in huge letters – one question is whether a genericity finding would make it harder for producers of the original to convey origin information.

Q: We’ve all had good tequila and bad tequila – quality control is not necessarily the issue. Are we looking for some essence of tequila that makes it “really” tequila? If the process can be duplicated in another way, it’s hard to see the value of the certification mark.

A: If you can duplicate the process, he agrees you should be able to advertise your ability to produce tequila.

Q: European view: If I figure out the formula for Coca-Cola, can I market it as Coca-Cola? No, of course not. It’s easy to take products that are already generic in the US, but think about products that aren’t yet generic in the US – the reason for the European system is a different way of looking at the value of regions that produce high-quality products. Famous mark holders existed, but couldn’t be protected under TM because they were a group, not a single source. This is a different way of protecting against free riding on reputation – the logic is the same as TM but the mechanism is different. If you assume tequila is already generic, protection seems bizarre, but if you look at the people who made it famous, created something of value, and still make it now, exclusive rights make more sense. (Note: this European perspective seems plausible, until you get to the ban on “-style,” “-like,” “method,” etc., which is anticompetitive from an American point of view.)

A: It’s like dilution – you protect the mystique of Coca-Cola and the mystique of the traditional region.

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