By: Maurizio Crupi
Geographical indications (hereinafter GIs) are signs used to safeguard the existence of a link between a product and its place of origin, focusing on quality and tradition.
The European vision comes from the concept of terroir, an interpretation of the link between product and territory that emphasizes the role played by land and soil. This approach is historically rooted in French wines production, which initially led to the concept of appellation of origin. Moving from this historical background, the EU developed a more flexible system based on a twofold link to origin: protected denomination of origin (hereinafter PDO) and protected geographical indications (hereinafter PGI).
Concerning the link of the product with the territory, PDOs provide a stronger link since they include all production and processing elements. On the contrary, PGIs present a looser link with the territory. In this sense, the causal link between the place to the origin and the quality of the product may be a matter of reputation rather than a verifiable fact. Furthermore, the raw materials do not have to emanate from the region, provided that a step of the production or processing occurred there.
The existing literature highlights a problem of recognition of the EU PDO/PGI symbols among EU consumers. According to a study, only 51% of survey respondents correctly identified that the symbols identify a product produced in one specific area. Further, just 42% correctly identified that the symbols mean that “guarantee of origin and compliance with product specifications are certified by a controlling body”. About a quarter of survey respondents erroneously believed that the PDO or PGI symbol referred to a product being produced in an environmentally friendly way (a characteristic of Organic products) or using a traditional recipe and distinguishing features (a characteristic of Traditional Specialty Guaranteed).
The scope of protection defined in the GIs international treaties (Lisbon and TRIPS Agreements) is quite broad, encompassing all categories of products. On the contrary, the scope of protection of the sui generis GI system of the European Union is category-based and (for the time being) limited only to certain categories of products, with the exclusion of non-agricultural ones. GIs protection is quickly evolving all around the world as a result of international negotiations. For example, for over twenty years, Canada has maintained a system to protect GIs for wines and spirits. After the EU-Canada Comprehensive Economic and Trade Agreement (“CETA”), a free-trade agreement between Canada and the European Union, Canada expanded its GI protection to 24 categories of food and agricultural products (in addition to wines and spirits) on 21 September 2017.
In the EU, the link to origin is carefully described in the product specifications. Taking as reference EU Regulation 1151/2012 on agricultural products and foodstuff, Art. 7 requires product specifications to contain information regarding, among other things, the definition of the geographical area, evidence of the origin of the product from the area, method of production and linking factors. Such links include a description of the characteristics of the place, its natural and human factors, such as the specific properties of the raw materials and the ancient and local know-how currently used.
After highlighting the importance of the link to origin described in the product specifications, it is necessary to understand whether this link is evolving. Is there a progressive loosening of the link to origin?
The fact that both PDOs and PGIs are deeply rooted in tradition, which is confirmed by the high occurrence of keywords like ‘traditional’, ‘longstanding production techniques’, and ‘handed down from one generation to the other’, does not exclude that they undergo a process of incremental development (alias innovation). The fact that traditional know-how is passed down from one generation to another argues in favour of a notion of dynamic tradition. In particular, the analysis of the single documents shows that innovation does occur in three different moments:
‘historical innovation’ occurred in the past before the product specifications were drafted;
‘collective innovation’ happened at the time when GI product specifications were drafted. The definition of the production standards is indeed a collective effort that has to represent the interest of all GI beneficiaries;
‘contemporary innovation’ coinciding with the amendments of the product specifications after the registration of the product. Amendments belong to two sub-categories: compulsory ones requiring compliance with legal provisions, such as a new safety regulation, and voluntary ones adopted by producers for strategic reasons, such as technological development.
Innovation is necessary to be competitive in the market. Producers have to continue improving their products and the processes, reconsidering their traditional know-how and adapting to new safety standards, change in consumers’ needs, and technological developments. The enlargement of the production area, due to ungrounded historical reasons and the commercial reputation of the product, could be detrimental to the culture of production of a given product and a further loosening of the link between the product and the territory.
The difference regarding the origin of raw materials for PDOs and PGIs has been assessed with an analysis of the amendments of single documents for processed meat products (class 1.2). The analysis reveals that PDOs did not amend the provisions concerning the origin of raw materials. In particular, PDOs did not restrict said geographical origin despite the broad exception under Art. 5 (3) of the EU Regulation No 1151/2012, which allows raw materials (such as live animals and meat) to come from a larger area. On the contrary, PGIs tend to loosen said link to origin. In particular, 4 PGIs have amended the link to the origin of raw materials, allowing them to come from outside the production area.
These findings are confirmed by the analysis of the reasons for the amendments. As regards raw materials, most PDO producers are more concerned with the respect of traditional practices and the quality of their products. In contrast, PGI producers seem more interested in adapting the specifications to the new market needs and production methods that have become common practice in the sector. Regarding the method of production, both PDO and PGI producers are interested in achieving more flexibility to adapt their product to new market needs, modern practices of production, and new food safety standards.
In conclusion, the analysis of the product specifications shows that not only tradition but also innovation is strictly connected to GIs. The problem mainly relies on keeping high the threshold of local distinctiveness, avoiding both ‘invented traditions’ and consumers’ confusion. Traditional elements have to be identifiable, avoiding a general reference to “authentic and unvarying local methods”, without establishing the longstanding history of the product, this would inevitably dilute the cultural rationale of protection. The results of the above-mentioned analysis are limited to processed meat products and are not representative of the entire GI population. This means that there is room for further research on GIs and their amendments.
Maurizio Crupi holds a master’s degree in Intellectual Property law from the University of Alicante, as well as a law degree from Bocconi University (Milan). After his studies, Maurizio has gained professional experience in law firms and at the EUIPO, drafting decisions on trademarks and designs matters.
Starting from September 2017, Maurizio is conducting his doctoral research at Alicante and Maastricht Universities, with a thesis titled ‘PDOs and PGIs: a pragmatic approach to the link to origin’, aimed at analyzing the link between products’ characteristics and their geographical area, proposing policy solutions for a better protection of both agricultural and non-agricultural products.