In July 2013, the EU and US started negotiations on a new trade and investment agreement – the Transatlantic Trade and Investment Partnership (TTIP). So far, there have been five negotiation rounds and negotiations are intended  to be completed by the end of 2014. Nevertheless, it seems that before any bargain can be struck, an armistice is required in the cheese war currently being fought between the two trade giants. Cause of this war is the level of protection to be afforded to Geographical Indications (GIs), cheese being a product that is typically marketed using a GI. The EU considers a strong protection of Feta, Parmesan and Camembert to be a vital element in a trade agreement with the US. The US, on the contrary, fervently opposes a level of protection that would require US cheese farmers to alter the names of ‘their’ Brie, Roquefort and Gouda.

Following TRIPS, Member States must grant protection to GIs which identify a good as originating in the territory of a TRIPS Member State where that good possesses a quality, reputation or other characteristic which is essentially attributable to its geographical origin. Examples include Champagne, Parma ham and Feta, which each bear characteristics of quality and originality and ensure to consumers they were produced in accordance with a specific or authentic manufacturing method. The idea is to preserve high quality standards and protect farmers and rural regions by giving them a competitive advantage on domestic and international markets.

The US and EU are both members of TRIPS and must therefore grant protection to GIs. There is, however, a difference in perception and implementation of GI protection in the EU and US, which in part may explain the cheese dispute. 

The EU developed a strong, separate body of legislation protecting GIs. There are, for example, a number of Regulations, such as Regulation 510/2006 on the protection of agricultural products and foodstuffs and Regulation 110/2008 on the protection of spirit drinks, which protect GIs against various acts of misuse as well as practices misleading consumers as to the true origin of a product. Any goods specifically linked to a certain geographical area that are produced using recognised know how can in principle obtain protection under the EU GI protection regime.

In the absence of a specific regime protecting GIs similarly to that in the EU, protection for GIs in the US is to be sought in trade mark law. In addition, GIs may be protected by certification marks and collective marks. A certification mark is described by the USPTO as “any word, name, symbol or device used by a party of parties other than the owner of the mark to certify some aspect of the third parties’ goods/services”. Hence, GIs may enjoy protection as certification marks because they certify a certain origin and quality attributable to their origin. Similarly to the situation in the EU, certification marks are not owned by the producers of the goods protected by the GI, but are typically owned by governmental institutions. Collective marks distinguish the goods of members of a certain collective, such as an association, union or cooperative, from the goods of non-members. The marks are owned by the collective and are used by all its members. Similarly to trade marks, collective marks indicate commercial origin, but instead of indicating origin in one specific party, collective marks indicate origin in members of a group.

Protection for GIs therefore seems available under US law, albeit through a different legal regime than in the EU. However, theory is not directly applicable to practice as many terms susceptible to GI protection, such as Parmesan and Feta, are in the US typically considered as being geographically descriptive. As descriptive terms are evidently not protected under trade mark law, many GIs are left unprotected unless they have acquired distinctiveness.

Nevertheless, certification marks do not indicate origin and are therefore not required to be distinctive in order to be protectable. Roquefort, for example, is registered in the US as a certification mark. However, safeguarding the extensive protection it wishes to offer to its farmers, the EU does not agree to any US protection offered to products originating from geographical areas in Europe.  

It is as yet difficult to predict whether the two trade giants will be able to settle their differences. With the EU seemingly not being prepared to make alterations to its strong GI protection regime and the US fervently preventing its famers from being forced to market their products as ‘Imitation Gouda’ or ‘Roquefort Style’ cheese,  there is allegedly a long way to go for the TTIP to become law.

written by Denise Verdoold