Wednesday, February 14, 2007

The Shifting Sands of Terroir

Yesterday afternoon, I was discussing with a friend the differences between English and American chocolate (specifically Cadbury's), which devolved into jokes about the temperaments of cows in different countries and how that would affect the milk chocolate.

I know; I have odd friends. The point is, though, that it shouldn't have surprised me that I woke up this morning thinking about Geographical Indications (GI's).

The TRIPS definition of a GI is a good place to start, with slight editing. GI's are "indications which identify a good as originating in the [a certain geographical region], where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."

Pay attention to that last bit, essentially attributable. The idea is that there's something ineffably particular in the combination of local factors -- including soil, microclimate, trace elements in the water, whatever -- that makes a product from a certain place unique and at some level not reproducable if grown in another place. The term for that is terroir, particularly with respect to wine; when I'm in my less charitable moods I think of it as the magically delicious principle.

(I'm eliding, for this discussion, the idea of GI as it applies to traditional handiwork and goods produced by labor; there is a line of thought that applies a quasi-terroir to crafts, such that the basket woven by an indigenous basket weaver in Region X is somehow different from the basket woven by the same basket weaver, even using materials imported from Region X, once that basket weaver moves to someplace that's not Region X. It's so dumb it makes my head hurt.)

GI protection can be accomplished either by a sui generis scheme of protection (the French model) or by looking at already existing protections and seeing how they can be made to cover GI's. In the US, trademark law is generally considered to adequately protect GI designations, particularly under the rubrics of Certification Marks and Collective Marks.

The "regular" level of GI protection (as reflected in TRIPS 22.2) doesn't really raise any hackles; it requires protection against the use of GI's in a manner that US practitioners would recognize. You can't mark a good as RegionX unless it's actually from Region X or if it's not from Region X but the public isn't going to be mislead into thinking it is.

It takes only a little imagination to understand how that level of protection fits nicely inside of Certification or Collective Marks. The US system pays no attention to terroir, and so far it doesn't really have to.

Problems arise, though, when it comes to TRIPS Section 23, which covers heightened protection for Wines and Spirits. A number of countries are looking to extend that heightened protection beyond Wines and Spirits, as well. The protection under Section 23 is much more dilution-ish. There's no inquiry as to whether or not the use of the term in question causes confusion or misleads the public. The protection afforded is more similar to ownership of term per se; even use of "kind," "type," "style," "imitation," or the like is banned at this level.

What I was thinking about this morning was as follows, though. If terroir is real, then you don't really need the second level of protection. That is to say, if it's really true that something in the dirt (or the water, or the slant of the sun, or the wind, or whatever the wind passed before it hit the vines) in the Champagne region of France makes the grapes there somehow different from grapes anywhere else, then it's really true that {sparkling wine made by the same process with grapes from California} is really different from Champagne. You could even make a good argument that the one from California isn't even Champagne-like, or -style, or -imitation.

On the other hand, if terroir is not real, then it's hard to think of a good justification for the heightened GI protection of Article 23. If Champagne that's not from Champagne can still be Champagne, then it can certainly be Champagne-style.

Moreover, even if terroir is real, what happens when the magically delicious principle begins to fail? As technology advances, perhaps that essentially attributable aspect of the land will become less ineffable. (See, for example, the advances in understanding red wine.) As that happens, the arguments underpinning the heightened GI protection will become less and less compelling, and it's not impossible to imagine the entire structure of GI protection trembling as its foundation is weakened.

It might be worthwhile for the bodies looking into GI protection to more explicitly address the question of terroir; particularly interesting would be to see some explicit recognition or (more likely) disavowal of terroir in the US Code.

--Ben D. Manevitz

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