In just a decade, geographical indications (GIs) have transitioned from being a mostly European niche—a Euroobsession, some would say—to a globally recognized and appreciated form of intellectual property, according to an analysis by John Clarke, former Chief EU Negotiator in Agriculture and former head of the EU delegation to the WTO and UN in Geneva, published by Euractiv. He negotiated the EU-China GI Agreement and several others.

A Dark Future?

To understand the phenomenon, we need to go back around 2010, when two things happened.

Several things happened in that year. Chilean miners were rescued, an earthquake occurred in Haiti, and South Africa became the first World Cup host country to be eliminated in the first round.

But for today's purpose, two things. First, as part of the periodic renewal of the Common Agricultural Policy (CAP), the EU decided to accelerate the shift from quantity to quality, increasing its support for the development of GIs (and organics).

Then came the "Quality Package," aimed at reforming and simplifying the EU's GI systems.

What is the Lamy Doctrine?

Second, after the collapse of the Doha Round of multilateral trade negotiations, where the EU unsuccessfully tried to create a WTO registry of all geographical indications and others, it decisively shifted—promiscuously!—to negotiating bilateral free trade agreements with all who would accept to achieve through bilaterals what it failed to do in Geneva—including the protection of GIs, which quickly became the centerpiece of IP chapters in each successive free trade agreement (FTA).

The Lamy Doctrine, "No FTAs until we conclude the Doha Round," was replaced by the Mandelson Doctrine: "FTAs, buckle up, folks—here we go."

The first wave of FTAs—Central America, the Andean Community, South Africa, and even Canada—was with major agricultural product exporters. GIs were, at least implicitly, the currency for the agricultural concessions that the EU had to offer these partners.

It was never as blunt as the "I give you sugar/beef/bananas, you give me Cognac/Feta/Mortadella Bologna" relationship, but it was implicit.

This author, involved in several of these negotiations, acknowledged that European agricultural communities grumbled—and agriculture ministries could accept it, as long as their main GIs received protection in other parts of the world where usurpation by local or American brands had been the rule, and given that we had to make some agricultural concessions anyway.

Korea, an early FTA, was the anomaly here: GIs were the redemption for reducing auto tariffs in the EU; not agriculture. But this gentle trade approach (whispering horses!) changed.

The Second Wave

With the second wave of FTAs—Japan, Vietnam, Singapore, Mexico, and even Chile—geographical indications ceased to be mere bargaining chips and began to be negotiated and assessed on their own merits.

To the point that many countries, even former skeptics like Japan, Korea, and Singapore, decided that geographical indications are a GOOD THING—for rural development, for agrotourism (wine routes, anyone?), and for increasing the incomes of struggling farmers, usually aging.

These countries began to pluck their own local geographical indications from the bush—Kobe beef, Korean ginseng, sticky rice from Vietnam, in Japan's case, some remarkable white wines—and even instituted sui generis regimes inspired by the EU. Unthinkable ten years earlier!

The EU itself was pleasantly surprised by this.

Not only did geographical indications become appreciated in partner countries, but the quality of protection in each successive FTA improved like a ratchet.

The first FTAs were flawed—heavy approval procedures for each name, fees to be paid, no direct protection through agreements, no possibility to add new names in the future (a problem in light of new EU accessions), no government actively enforcing against counterfeiting, and considerable freedom for existing owners of commercial trademarks of a commercially significant EU GI name—Feta, Gorgonzola, Gruyere, etc.—to continue using their mark in perpetuity.

Fixing the Flaws

Later FTAs fixed most of these flaws.

Starting in 2016, FTAs were to include direct protection of a list of GIs through agreement with easy procedures and no fees, administrative and ex officio enforcement becoming the norm, gradual elimination of competing trademarks in about five years, and a ban on further genericization.

But also the right to add new names over time (vital for Romania, Bulgaria, and Croatia, which came late to the wine and cheese party), longer lists (the first FTAs protected on average a hundred European GIs by 2020, there were usually 200 names protected in each agreement), and a guarantee that each member state would have at least one protected GI.

This is a priority for the current Commissioner for Agriculture, who has seen it as a smart way to involve southern European interest in Europe so far.

The wheel has turned full circle. From being seen—by some—as a bargaining chip for agricultural concessions, GIs are increasingly negotiated as autonomous, internally balanced agreements.

A significant achievement of this European Commission was the conclusion in 2020 of an exclusive EU-China GI agreement, to date the only commercial agreement with that strategic (and competing and rival) partner.

A Protective Agreement

The agreement protects 100 geographical indications of each party (China understandably insisting on balance), although due to Brexit, four indications from the UK lost protection, so only 96 EU GIs are now protected.

After "losing" the UK market, China was not prepared to replace the four removed geographical indications with four new European ones.

The agreement is now extended to include 350 new geographical indications of the parties, including Prosecco and Peking Duck, which—I recently suggested to China's Deputy Minister of Commerce—are a wonderful culinary match!

Similarly, India and the EU launched standalone negotiations last year, extracting geographical indications as a molar from the mandate of ALS negotiations, which shook in 2013 and resumed slowly.

So India and China are now paid-up members of the pro-GI brigade—China even has more GIs than Europe.

Like the EU, they see geographical indications as an instrument that helps struggling rural areas, adds value at the farm gate, and serves as a symbol of heritage in a world of delocalization—which former Commissioner for Agriculture Phil Hogan once called "rural intellectual property."

The EU is the world's largest exporter of agri-food products, knocking the US out of that spot about ten years ago, with exports of €230 billion annually and a trade surplus of €50 billion.

GIs led the charge. Being an €80 billion business, more than 15% of EU products with geographical indications are exported worldwide, cementing Europe's reputation for food quality, authenticity, safety, and the like, and thereby burnishing Europe's broader credentials for food and beverages.

So, without exaggeration, geographical indications have been a success story for EU agriculture, CAP, and trade. FTAs have been the main engine of GI success.

But the success story of the FTA of GIs had two unexpected consequences that were never considered in Europe's initial negotiation strategy.