Send In the “GIs”: The U.S. Defends its Vinous Territory

wine1.jpg What goes around, comes around. Wine tasting is one metaphor; you draw the first sip up one side of your tongue, aerating it noisily in a way that would have gotten you banished from your childhood dinner table, and let it slide down the other, savoring all its flavors and, if you’re in that kind of a setting, searching for coherent words to describe them all.

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.

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