Sunday, September 30, 2007

WIPIP, Panel 5

Irene Calboli, Marquette University Law School
The Case for a "Reasonable" Expansion of the Protection of Geographical Indications of Origin Under TRIPS

Abstract | Paper

Calboli defends some expansion of GIs, though does not endorse the European prohibition on “-like” or “-style” designations. Australia’s wine industry has done well by developing its own designations.

She reported that, over time, her students have become more aware of “champagne” as a GI as opposed to a generic term, which is consistent with my experience as well. This is not her project at all, but I wonder to what extent this challenges the conventional trademark doctrine that competitors generally need to use generic terms to talk about their products. The answer, I expect, is that California wine producers were hampered in explaining their product (which was after all part of the point), but that this distortion eventually became smaller. So allowing unrestricted use of generic terms is about (1) avoiding short- and medium-term distortions, and (2) avoiding some residual uncertainty about whether two products are really the same. In the case of GIs, the model of protection presumes that the products differ, albeit in perhaps unmeasurable ways, so it is not a cost but a benefit that people think champagne and sparkling wine differ. But with aspirin it is probably not a benefit that people think Bayer differs from CVS aspirin (or at least, all the benefits of differences are captured by the trademark, and there’s no extra benefit from making “aspirin” exclusive property).

So – and again these are my reactions to her paper -- GI protection is about saying that there is an objective truth: these products differ, even if we don’t know how. The protection exists regardless of consumer perception. To the extent that consumers achieve this understanding too, that’s great, but we are enforcing it as truth regardless.

Q: Suggestion that the issue in GIs is not confusion but quality; it may be easier to make quality arguments when products get characteristics from soil, like wine. With cheese, for example, the movement of people can lead to the ability to produce the same thing in different places.

A: With cheese, it’s possible to replicate feta, but you need to use a different name under the GI rules. Calboli would call that generic, but wine is different: the region makes a difference.

Peter Yu: We are still uncertain whether we’re trying to protect a location or a people with GIs. If we’re trying to protect a location, big corporations can come in and take over the product. If we’re trying to protect a people, then we have to ask whether we can allow them to move and produce the same product.

Calboli: Protection shouldn’t be tied to producer size. Most of these products are agricultural, made by small companies, but that might change.

Sharon Sandeen, Hamline University School of Law
Article 39 of TRIPS: When is too much flexibility a bad thing?

TRIPs and the Uniform Trade Secrets Act differ in definitions of trade secrets. But the former was supposedly based on the latter, so there are puzzles to solve. Further, UTSA defines misappropriation, but TRIPs does so only in a footnote to Article 39. Pharma cos are trying to use Art. 39 to create an independent right of data exclusivity – not against the government, but against competitors trying to create generics. She is disturbed by this. Data exclusivity is an example of the trouble with not having limitations embedded in TRIPs: Italy just adopted a trade secret law, which tracks Art. 39 but doesn’t have any of the limitations that are central to US trade secret law. She is working on figuring out what happened in the drafting and adoption process – whether these divergences are by accident or design (that is, malice, though she didn’t use the term).

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