That sip of wine goes around, then it comes around, then you have to either swallow it or spit it out. Similarly, the U.S. has finally come around, at least a little, to the European perspective on identifying wines with place names – because recently our vintners have, figuratively, walked a mile in the Europeans’ vats.

Remember “New York champagne” and “California burgundy”? You don’t see them around anymore, because they’re illegal. Not the wines themselves, just the names. The U.S. acceded to wine trade treaties that reserved the names of European wine-producing regions for wines that actually come from those regions (Champagne and Burgundy are parts of France).

The countries of the European Union pioneered a sui generis class of intellectual property known as a protected geographical indication (GI). If a product becomes known for qualities attributable to the region where it was produced or processed or prepared (terroir), a producer group may register a GI for that product. The process is similar to a trademark registration; the application is examined for fit to regulatory requirements, and issued if it passes. The E.U.’s stated legislative purposes in draftling GI laws were to encourage agricultural diversity, to inform consumers, and to protect local products’ reputations from being tarnished by imitations from elsewhere.

The U.S. found European GIs unpalatable and hard to swallow at first. On the practical sales level, a large body of U.S. consumers who could not afford the European wines had come to depend on American analogues when the menu called for a certain flavor. On the statutory level, U.S. trademark law discourages attempts to monopolize geographical names on the grounds that they are insufficiently distinctive to identify an individual producer. (US producer groups can register geographical names as collective and certification marks under some circumstances; “Idaho potatoes” and “Florida oranges” are examples). Finally, on the deep-IP-policy level, one rock-bottom US principle is that once a term is generic in the public domain (as “champagne” and “burgundy” were), it stays there; a certain level of ubiquity in public discourse is where trademark law ends and free speech begins.

Eventually, however, the squished grapes were on the other foot. At least a dozen winemakers outside the U.S. are using our own “Napa” or “Napa Valley” in their product names, and we don’t like it one bit. Some of the offending wineries were in the E.U. (for example, in England and Spain); others were as far-flung as Chile, China, and Tahiti, but exported to the E.U. So Napa Valley Vintners, a nonprofit trade group, applied to register “Napa” and “Napa Valley” as GIs in the E.U. This was a reasonable approach – after all, U.S. inventors, authors, and business owners routinely protect their IP rights in Europe by securing patents, copyrights, and trademarks those countries. However, Napa Valley Vintners’ application was denied intially, one reason being that the E.U. had no process for registering GIs from non-member countries. Then, beginning in April 2006, the E.U. Commission on Agriculture began directly accepting GI applications from such “third countries” (producer groups in the E.U. must first apply to their national offices).

The Napa GIs were the very first GIs granted to a non-E.U. country. Coincidence? Probably not. The U.S. and E.U. have spent the last three decades trying to squeeze out workable arrangements for wine trade. We agreed to stop using a whole list of European place names on our wine. They agreed to accept wine from us that was made by other-than-traditional-European methods (for example, wine fermented on a layer of wood chips in an aluminum barrel, rather than in an all-wood barrel). Nobody wants to mess up that relationship now.

Now that the GI is issued, E.U. wineries are subject to legal penalties if they call their wine “Napa,” and E.U. customs agents can seize shipments of foreign fake-Napa wine at the borders. Ah, the sweet smell of success – with undertones of cloudberry, Laotian teak, and cured stingray skin, perhaps. But Napa Valley Vintners’ struggle to hold onto its region’s name isn’t over yet: “Next we focus on China, where we have some real problems,” said Linda Reiff, the trade group’s executive director.

Landraces are naturally occurring hybrids of cultivated crop plants and their wild relatives. They grow on the edges and in the interstices of farming communities past and present. A crop’s related landraces reflect multiple shufflings and reshufflings of a larger genetic deck. Compared to this year’s crop, one landrace might thrive in drier conditions, another in wetter. One might grow more quickly, another more slowly. Grasshoppers might eschew chewing on one landrace, toads another. If all these landrace seeds were available next year, farmers could choose those likely to succeed even if they expect a drought, a shortened growing season, or too many toads.

“People have been farming for thousands of years,” a curmudgeon might argue, “without worrying about any of this agro-biodiversity business.” The easy answer (“well, crops have been failing for thousands of years too”) aside, it used to be much less of an issue. Agro-biodiversity used to just happen, as a natural side effect of traditional farming. Now it often doesn’t happen because:

• Traditional crops were usually variants of local wild plants, and the two groups could cross-pollinate to create landraces. Many modern crops are imports from other parts of the world, too different from local wild species to cross-pollinate.
• Traditional farmers often “intercropped” -grew a variety of crops in close proximity, producing landraces in similar variety. When large areas became devoted to a single crop in modern agribusiness, landrace evolution in that area became confined to one crop (or none, see above).
• Many traditional local farmers saved seeds from each harvest. They would store some for replanting, and trade some informally with other farmers at market gatherings. The traded seeds were another source of diverse genes. Now, many farmers get seeds from commercial and institutional sources, under contracts or regulations that restrict informal trading or even saving of seeds from the harvest.
• Paving, motor vehicle exhaust, and weedkillers make things easier for farmers, but tougher for landraces growing in exposed places.

Conserving biodiversity in wild lands is straightforward, at least on the surface: just keep people out. (Below the surface: well, naturalists have to get in, to study the species. And bio-prospectors, looking for new medicines. And certain locals, in their traditional medical and ceremonial pursuits. And law enforcement officers to make sure nobody unauthorized gets in. And . . .). Agrobiodiversity conservation is trickier because human activity – farming, with at least some traditional features – is an indispensable ingredient of landrace development.

Forcing farmers to universally go back to low-tech methods and local wild-derived crops isn’t an attractive solution because many of these modern developments have vastly improved the quality of life for farmers and consumers. Fields yield more for trade, and some of the import crops have added dietary variety and better nutrition to the community food supply. Collecting samples of landraces for storage in ex situ gene banks has met with some success, but these centers are often far from the farmers who need the resources, and the stored samples are “frozen in time” and unable to produce new sub-strains. In situ conservation of some limited areas under conditions that encourage landraces has the advantage of allowing the landraces to continuously adapt to changes particular to their locale.

In situ conservation of agrobiodiversity areas raises several issues. Back when it “just happened,” no one had to pay for it. Now, reserving some land for traditional or quasi-traditional crop areas and adjacent wild-relative areas may render that land less economically profitable than planting modern monoculture fields, at least in some circumstances. Since the short-term free market is unlikely to furnish agro-biodiversity incentives, governments are experimenting with creating some, such as cost reduction, market channel development, prizes, and limited IP rights..

The two most common forms of IP in plants would not fit landraces well. Patents are not available for “products of nature,” but for “anything under the sun made by man;” landraces are something in between. Furthermore, patentable plants must generally be capable of asexual reproduction, which individual landraces may or may not be. Plant Variety Protection (PVP) under the International Union for the Protection of New Varieties of Plants (UPOV) convention is only available for cultivars that are distinct, uniform, and stable, with more than minor differences from existing cultivars; many landraces would be hard pressed to meet these criteria either.

Other IP issues may rear their ugly heads if crop plants from commercial seed do happen to cross-pollinate with local strains and spawn landraces. Traditional regional crop varieties, such as quinoa and jasmine rice, are enjoying heightened economic value as “specialty foods” in urban/industrialized areas, so commercial companies are moving into these niches. Institutions and farmers may agree to licensing contracts, but pollinators (insects, birds, animals, and wind) couldn’t care less. Can a company that owns rights in the commercial crop also claim rights in any landrace it spawns? In a country where farmers have rights in landraces, how will those rights be split?

If you want to read more about the interaction between agro-biodiversity and IP law, authors to look up include Susan Bragdon, Devra Jarvis, Toby Hodgkin, and Stephen B. Brush.