David Lametti

McGill University

The terror of terroir

Caveats

• Not a food law person as such

• Rather, an IP-property theorist

• Work is informed by an Aristotelean view of virtue, so-called “virtue ethics”

• More concerned with “ought” than “is”

TMs, CMs, GIs

• Ethical boundaries for these?

• Current work with Matteo Ferrari and Pierre-Emmanuel Moyse on the relationship of geography to innovation

• My role: is to remind of the ethical dimensions of what is at stake

Animating Scepticism

• The relation between IP and innovation is tenuous, if not completely fallacious

And so to terroir, food

Terroir

• What is unique about a geographical link to a product and/or its quality

Luxury Items

Geographic Qualities

• Sun, soil, wind, water

• And their impact on crops, etc.

Human Intervention

(Traditional) Methods

•For curing Parma ham

•For making Champagne

•For making Amarone or ripasso

Terroir …

• A combination of both unique geographical qualities and and human intervention/methods

How to protect terroir

• TM: protects the goodwill by protecting the distinctiveness of mark, symbol, etc.

• - probably insufficient to protect terroir

• Passing Off – ‘Extended’ Passing Off– a common law doctrine that goes to good will

in a type of product

How to protect (2)

• Certification Marks– Third party registers a mark for use by those

who meet the standard– Common for wines, etc.– Often national bodies or producer

organizations

How to protect (3)

• Geographical Indicators

– More robust cousin of Cert Marks– Extra-national (EU, TRIPS) norms: quality,

reputation

GIs (from Matteo Ferrari)

• Art. 22.1 TRIPS: geographical indications are indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin

• Europe: reg. 510/2006:- designations of origin: strong relation between food and terroir (quality exclusively or essentially due to origin)- geographical indications: weaker relation between food and terroir (references to one specific quality and reputation)

GIs

• Have a community-oriented dimension, a form of collective property: tradition

• Confers status, etc.

• As GIs are not owned by a specific subject; GIs cannot be sold; they cannot be given as securities (as is case with TMs and CMs)

How to protect (4)

• Private certification bodies– Now common– Cf Matteo Ferrari’s presentation at this

conference– Especially as regards quality: they transmit

and guarantee this quality

Scope?

• Particularly in relation to a diaspora

• Or simply migration of peoples

– People bring traditions, plants, animals– Often to hospitable climates (often that is the

point of immigrating)

Terroir

• Can it limit these other groups from producing (luxury) products according to traditional methods, bring products to market?

• It is really the human element, I suppose.-same method applied to different raw materials

And so, can we prevent…

• A baked flat dough from being called a “pizza”?

• A cheese made with sheep’s milk from being called “pecorino”?

• A cured ham from being called “prosciutto” … “speck” … “Parma ham”?

Market “rights”

• The ability to produce a product, participate in a market, and name one’s product in an accurate (most accurate?) and efficient (most efficient?) manner

• Efficiency = reducing consumer search costs

If we go to far …terroir becomes a terror.

To some extent, a new problem

• Why? It is with supra-national bodies (EU, TRIPS) that the potential scope for CMs and GIs, and private bodies reach across borders, oceans, etc.

• Moves with international trade

• So how far should these principles extend?

To generic or descriptive terms?

• Generic: If a term becomes the product itself

– Champagne is close, though “sparkling wine” still suffices

– Parmesan cheese?– Mozzarella?– Mozzarella di bufala?

Generic or descriptive terms

Descriptive

•Cepages: Merlot, Syrah, Cabernet, Sangiovese, Reisling

•versus classic blends of these: Chianti, St-Émilion

Confusion

• A time-worn concept in this area

• Not a perfect concept, but does a great deal of work

Use of qualifiers?

• “- style”, “-method”

• “Parma-style” ham, “champagne-method”, etc.

• (or the contrary: Parmigiano Reggiano)

• Can work in certain conditions

Consumer

• How intelligent?

• Cdn champagne case: no consumer would possibly confuse!

• Anne Bartow: if male-targeted product, consumer deemed to be intelligent

Dilution-Diminishment-Tarnishing

• A potentially separate standard for famous marks, that might be applied here too

• Famous marks often high-quality

• Fraught with difficulties (how distinct from confusion?)

Consumers

• Are better equipped than we think

• Are capable of reading labels!– Think of ingrediants

Ironically, the imprimatur

• Helps restrict reach

• As the marks/ GIs/ standards become more well-known, the consumer gets to now them and is less likely to ever be confused

Old world –New world

• New world competition escapes domestic regulations regarding quality in the old world

Old world – new world

• Need to be careful about how foods get transferred over history– Pasta– Pizza– Rice– Beans– Maize– grains

From the sublime …

• Chianti

• Amarone

• Parma Ham

… to the ridiculous

Pasta

Pizza

Polenta

In the end

• Confusion is a workable standard to prevent overreach; use of official standards themselves transmits information so well to consumers that competing products will be seen as inferior

• Ironically, no need to ban the “competitors”, provided they make no false claims, not confusing

Quality

• Will always win out in the end

• The real relation is between terroir and quality

• To some extent GIs will help identify quality, but can’t replace quality

Focus (for agro-food industry)

• Quality (tradition, terroir)

• No terror here!

Grazie

• david.lametti@mcgill.ca