EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR AGRICULTURE AND RURAL DEVELOPMENT

Brussels, 23 February 2015
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Trade Policy Committee

NOTE FOR THE ATTENTION OF THE TRADE POLICY COMMITTEE

SUBJECT:

EU-U.S. Transatlantic Trade and Investment Partnership (TTIP).
Line to take on Geographical Indications (GIs)

OBJECTIVE:

For information

REMARKS:

DG AGRI would like to provide Member States with briefing material
on agricultural trade matters related to the Transatlantic Trade and
Investment Partnership (TTIP), and specifically to Geographical
Indications (GIs).
In the context of negotiations under subject, GIs have attracted
considerable political and media attention and EU positions have been
frequently described in an inaccurate manner. This situation calls for a
coordinated outreach effort, aiming at clarifying and explaining EU
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 positions and addressing the main criticisms expressed by GI
opponents.
The material attached is intended to be used by EU officials and
Member States representatives during contacts with U.S. counterparts
and/or media. It contains key messages and defensive points, addressing
the most controversial areas of the GI debate.

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GIs in TTIP
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General messages


GIs in TTIP wrongly depicted as stumbling block. Need to see them as part of
solution, instead.



GI outcome in TTIP is possible, and pragmatic solutions are within reach. 95% of
the names for which the EU seeks protection are not problematic for the U.S. – this
is acknowledged by U.S. dairy producers. Solving the remaining handful of names
is the task of negotiators. In looking for such common grounds they will be guided
by the WTO rules we both abide and strongly support.



Protection of EU GIs in the U.S. is a must-have. Part of balance in agriculture. Same
for wine semi-generics.



Legal costs to protect and notably enforce geographically-based trademarks are
currently prohibitive in the U.S., notably for SMEs. This is why we aim at protecting
EU names through TTIP.



U.S. producers suffer from the same shortcomings in the US TM system as the
EU ones. The Idaho potato growers spent 1 million USD to fight one Court case alone.
This is not sustainable for local producers/SMEs.



No one comes here to expropriate anything; however, as in any other business, we
should respect good faith and expose bad faith. Consumers have the right to make
an informed choice and all producers have the right to fair conditions.



Need to de-dramatize current debate. Anti-GIs lobby in Congress and media not
helpful and misleading. Nobody in the EU wants to claw back names such as gouda or
cheddar. Chairman Ryan (R-Wisconsin) should not fear GIs in TTIP: "Wisconsin
Gouda" is not in danger and can already be exported to EU.



GI not one-sided file: consumers in EU and U.S. want products reflecting history and
heritage. Think Napa Valley, Idaho potato, Vidalia Onions, not just Feta and
Parmesan. This is the trend. GIs have become a global phenomenon in developed,
emerging (India, China) and developing countries (in Africa, in South East Asia, in
Latin America). Also in the U.S there are voices strongly supporting the geographical
indications' approach and advocating a better protection for this particular property
right. These are producer groups recognizing the value of that approach for their
business, whether domestically in the U.S. or vis-à-vis export markets.



GIs are an IP right at par with other intellectual property rights (IPR). The
protection of intellectual property rights (IPR) is one of the foundations of both the US
and the EU economic systems, as millions of jobs across the Atlantic depend on an
effective protection of those legitimate rights. Consequently, both U.S. and the EU are

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pleading for stronger IPR protection in the respective bilateral and multilateral trade
agendas. The EU does not see why GIs in the context of TTIP should be an exception
and should not be treated at par with other IPR.


GIs are "products with a story". Consumers want fruit, sausages, wine or whisky
etc. with a story – stories of the men and women keeping alive traditional ways of
doing things, in the place they call home; stories reflecting history and heritage. A
name recognised as a GI tells such a story.



Are TMs products without a story? Of course, there can also be a story behind a
trade mark, but it is mostly not linked to a place, a traditional way of doing it. There is
an "Apple" story, even a great one - but your Apple smart phone is "designed" in
Cupertino, California, not made there. Buy an "Armagh Bramley apple" (from the UK)
and you can be sure the apple is from there - not only the design.



Distinctiveness / specificity: you can only get a trade mark if it is distinctive; you can't
get if for a generic term. The same applies for GIs.



GIs maintain jobs in rural areas / the country side: Both in the US and in Europe,
there is concern about abandoned small towns and villages in the countryside. How to
keep people and jobs there? How to offer a perspective to the young? Many GIs are
produced in rural areas, often poor ones, and often threatened from depopulation. GI
protection means that the name can only be used as long as the product is made in a
specific place. It has been shown that this can ensure that the jobs stay where they are
and production does not move to the place where it is cheapest.



GIs help small farmers: Small farmers producing for a GI – e.g. milk for a GI cheese
– have an alternative to selling to big buyers and the mass market; GI offer alternative
market outlets.



Wines vs. food names. Think Napa Valley: Consumers expect that a bottle of "Napa
Valley" contains wine from Napa valley, made from grapes that have grown there, by
the wine-makers who know how to get the best out of the soil, sun and grapes in this
unique region. That's why the US protects these names at home in the US; and try to
do so in third countries as well. The EU does the same with certain names for EU
foods, wines and spirits. What Tennessee whiskey is in the US, Scotch Whisky or Irish
Whisky is for Europe. We are on the same line on wines and spirits, we can be it on
food products as well.

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II Defensives
On common names/generics


The EU is attempting to monopolize common names. The EU approach to GIs in its
trade negotiations has often been depicted as an attempt to "monopolize" common
food names used worldwide for the benefit of some European producers. This is plain
wrong. The EU legislation on GIs foresees that a name that has become generic cannot
be protected and that, in a compound term, the generic component of the term is not
protected (e.g. Gouda Holland, where Gouda is not protected). The EU accepts that a
name that is protected as a GI in its territory could also, in principle, be considered as
generic in another territory. The EU believes that this test should be done on the basis
of serious evidence, not mere assumptions, as it is the case in the narrative of the antiGI lobbies. Names that anti-GIs lobbies depict as common names in the U.S. (e.g. feta,
parmesan, asiago) are widely used in association with symbols (flags, monuments,
etc.) that re-link those products to the names' place of origin. This is the best evidence
that those names are not common names, as U.S. companies feel the need to convey to
consumers an image that evokes a (false) origin. We want to fix this in TTIP.



Names of EU origin which are not GIs: Several names of products which are
undisputedly of European origin and which, for some of them, refer to a specific place
have become common names to designate a type of products, also in the EU. Such
common names and genuine GIs are often mixed up and some of the
misunderstandings about the EU's position on GIs have emerged as a result of these
errors. Here are some of those names which are not protected as GIs in the EU:
camembert, brie, cheddar, edam, gouda, mascarpone, mozzarella, provolone,
blue and bologna.



EU names that are not protected as they are common names: We have been
perplexed to see media reports stating that we are looking to protect names such as
chorizo, ricotta, salami, kielbasa, chevre and prosciutto. This is simply wrong, as
these terms are not protected within the EU. The bulk of the U.S. agricultural
industrial production operates using these terms that are not in question by any party.



The EU is expanding the GI list as to include names that gain international
standards in the past. One can perfectly understand that a country which aims at
protecting the name of its products uses the GI route where it is available (i.e. in the
EU for instance) while making also its utmost in the rest of the world to prevent the
marketing of products having nothing to do with the original recipe. Promoting a
Codex alimentarius standard can be part of such a strategy.



In recent FTAs, EUs negotiated outcomes which amount to limiting competition
on certain names regardless of IP status in hosting countries (e.g. 5 cheeses in
Canada and Feta in South Africa). This is wrong and inaccurate. While it is true that
the 5 cheese names were used to various extents in Canada by a number of companies

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other than the GI holders, there is no compelling evidence (jurisprudence or other
legally conclusive acts) that these names were generic in that territory. Solutions found
were respectful of existing users (grandfathering) and add transparency to the labelling
(use of "style" etc. for newcomers), which is a plus for consumers.


What about Parmesan? The term "Parmesan" is not registered as a GI in the EU.
What is registered is the term "Parmigiano Reggiano". The question whether using the
term "Parmesan" for cheese that is not "Parmigiano Reggiano" is an abuse and
misleading was hotly debated in the EU for years. Finally, the question ended up
before a judge – Europe's highest court, in fact. The judges finally held that in the EU
market, using "Parmesan" in the EU evokes "Parmigiano Reggiano" and is therefore
illegal unless used for selling real "Parmigiano Reggiano". In the EU, we believe that
such questions should be looked on a case by case; and there should be a judge
competent to handle such disputes.



EU GI limits on common names are recent (20 to 10 years). An EU wide system of
protection for food GIs is in place since 1992. On certain names (Parmesan and Feta),
decisions were brought to Europe's highest Court and the said Court took clear-cut
determinations, after lengthy processes. The fact that some names have attracted
disputes which led to clear legal determinations does not amount to any proof of
genericness. The debate on those terms is definitely over in Europe and cannot be reopened. Any use of those terms other than the original products is illegal and policed
by MS authorities. If the U.S. has evidence demonstrating an illegal use of these terms
in the EU, this will be prosecuted accordingly.

On alleged inconsistencies of the EU system of GI protection/enforcement1


EU legislation severely punishes any infringement of GIs in Europe, through civil
enforcement measures, border enforcement and even (through national legislation in
several countries) criminal enforcement.



Slides used to display alleged infringements of European GIs by EU companies
showed mostly pictures taken outside the EU, i.e. in third countries where our GIs are
not legally protected and where such display and sale is not an IPR infringement.



The Commission notes that we have information about a number of products (ex:
cheeses) produced in Europe, that are exported to third countries under a legal brand
and subsequently re-packaged in the country of importation with a label that would not

1 In particular for people meeting USTR officials, it is important to counter allegations referring to "repeated violations in the EU of
EU GIs that are allowed to take place, while the EU asks the US to enforce EU GIs in the US.”, based on alleged evidences (pictures
showing EU GIs misused by EU companies);

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be allowed in the EU. EU relevant authorities are not in a position to control a possible
rebranding of products taking place after those products have left the EU territory.


No legal system is 100% effective and it is conceivable that – if intensely researched random examples of products using illegally GI names can be found in Europe or
exported from Europe. Those products face the risk of being seized and destroyed exofficio by customs, police or food/safety/ inspection authorities. These odd cases are
no different from stalls that can be found in Washington D.C. selling clothes, bags or
perfumes with trademark infringing labels of European or US brands, some in the
sidewalk in front of the USTR or in New York’s Chinatown. They should by no means
be used as an illustration of lesser commitment to the highest standards of protection
and enforcement of IPR in the U.S. or in the EU.

On compound names
Only compound names should be protected as GIs in the EU and worldwide. This
statement is, at best, too simplistic. The EU does protect many compound terms e.g. "West
Country Farmhouse Cheddar cheese", "Mozzarella di Bufala Campana", "Noord-Hollandse
Edammer", "Noord-Hollandse Gouda". The practical implication is that a product sold in the
EU as "West Country Farmhouse Cheddar cheese" must originate from four specific counties
in England (Dorset, Somerset, Devon and Cornwall) and be produced according to precise
specifications. On the other hand, "cheddar" originating from other parts of the world can be
sold in the EU. That does not imply of course that only compound names are protected as GIs
in the EU. "Roquefort" for instance is a well-known GI. In fact, for most cases, the scope of
protection for compound names is relatively straightforward, as compound names are
generally made from one part which is clearly a type of product and one other part which is
the geographical area ("Esparrago de Navarra" (asparagus from Navarra), "Clémentine de
Corse" (clementine from Corsica), "Zafferano di Sardegna" (saffron from Sardinia)). For a
limited number of cases, the compound name is made of two geographical terms
("Parmigiano-Reggiano" or "Pessac-Léognan", "Camembert de Normandie", "Gouda
Holland"). In the two first cases, the two components are protected. In the second case, the
protection was sought only for the name as a whole when the name was registered. In the last
case, it was made clear at the time of registration that the term "Gouda" can continue to be
used. The EU does not see the "compound vs. sole term" as a significant parameter. Some
cases will have ultimately to be decided on a case-by-case basis.
On GIs not being an EU-wide priority in TTIP
EU claims that GIs are an EU-wide priority; "but GI benefits are highly concentrated
(89%) in 5 MSs and 60% of GI earnings are held by FR and IT". GIs are indeed an EU
wide priority and the EU FTA agenda reflects just that reality. It is true that the EU-wide GI
system has roots in prior existing systems set up in certain MSs, and hence GIs in those MSs
have more history and still represent the majority of the EU GI turnover. However, now all
MSs are adhering to the GI approach.

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