Ryan Yevcak
LL.M. II, Faculty of Law, McGill University
15 November 2018
Castilla la Mancha, Spain. The name brings to mind images of Don Quixote gallivanting across the plains, tilting at windmills, defending his honour. The region is also home of the eponymous cheese, queso manchego. According to the Regulatory Council of the Denomination of Origin for Manchego Cheese, the dairy product traces its origins back thousands of years and is unique to the region due to its use of ewe’s milk of the Manchega breed.[i]
During the colonisation of present-day Mexico, the Spanish conquistadores ‘imported’ the methods for producing manchego cheese to the colony along with all other dairy products; today, most manchego cheese in Mexico is produced with cow’s milk, having been adapted to the resources and tastes of the country.[ii] But is it manchego cheese if it comes from Mexico rather than Spain, and it is made from cow’s milk instead of ewe’s milk? What’s in a name?
To protect the quality and reputation of regional foodstuffs, in 1992 the European Union introduced a series of geographical indications similar to the appellation system used in viticulture: a geographical indication is a legally defined and protected identification. Advocated by producers to safeguard their products and provide quality assurance to consumers, the appellation and geographical indication systems introduce a method of gustatory regulation for commercial and consumer ends.[iii] As Oskari Rovamo states, “the legal protection of geographical indication has traditionally been based on the idea that geographical origin endows a product with exclusive qualities and characteristics.”[iv] The protected designation of origin prohibits the import and sale of items within the EU that do not comply with the geographical indicator or appellation. But how does the exclusivity of this designation cohere with the European Union’s fundamental principle of free movement of goods and services? The leading cases on this issue are Cassis de Dijon[v] and Exportur[vi], both judgments of the EU’s Court of Justice. read together, they suggest that the exclusive rights granted with geographical indications are not completely incongruent with the principle of the free movement of goods. In Cassis de Dijon, the arguments of “the defence of the consumer” and the “fairness of commercial transactions” succeeded[vii]. In Exportur, indications of origin were considered to be included in the concept of “protection of industrial and commercial property”[viii] prescribed as one of the limitations to the free movement of goods in Article 30 EC. Thus, the guiding principle of the free movement of goods does not entail an absolute free market nor does it prohibit the protection of consumer interests.
Manchego cheese from Mexico. Milking process and production
As part of Mexico’s foreign policy to diversify its foreign trade, the government has been seeking to broaden its Free Trade Agreement with the European Union, originally signed in 2000. Geographical indications proved to be one of the issues causing most resistance, with the Spanish government vehemently opposing the inclusion of Mexican cheeses unless Spain could retain an exclusive right to use of the “manchego” name.[ix] This attitude of fierce opposition from local producers is not unique to the Spanish Brotherhood of the Manchego Cheese; Mexico is also protective of its geographical indication, such as tequila. Geographical indications provide a monopoly-like branding right to classify food and drink items. While the assurance of taste and quality control for consumers is related to this regulatory measure, it would appear that it is the financial benefits that derive from the enforcement of the exclusive rights against “imitators” producing a similar variant that are particularly sought after or coveted.
In the context of the free trade agreement, the European Union reached the conclusion that manchego could refer to both a general type of cheese and denote a geographical indication. Geographical indications, understood as an extra-territorial regulation of taste, delimit a physical region in which manufacturers who produce their goods within that area will benefit from the exclusive labelling right. While this right is intended to ensure quality control, the industry’s marketing effect preconditions consumer’s perceived degustation and creates a hierarchy of added-value to the sense of taste.
Regarding ‘extra-territoriality’, a state’s legal power is generally confined to its geo-political limits in recognition of its own sovereignty but also the sovereignty of foreign states.[x] In my use of extra-territorial regulation, I incorporate Professor Dan Svantesson’s term ‘extraterritorial effect,’ which he defines as “an assertion of jurisdiction ought to be regarded as extraterritorial as soon as it seeks to control or otherwise directly affect the activities of an object outside the territory of the state making the assertion”. [xi] In the example of Mexican manchego cheese, the regulatory effects of the Free Trade Agreement between the EU and Mexico had the potential to prohibit the import of Mexican manchego cheese, whose effect would be to restrict consumers’ access to (and taste of) the food type within the European Union.
The European Union has treated the case of manchego cheese differently to other protected food items, by permitting the Mexican dairy industry to utilise the ‘indicator’ (manchego), while insisting that it be differentiated by a labelling of origin requirement. For the geographical indication mark, the decision taken may be seen as in conflict with the strict protections granted, however the conclusion recognises the issue as one of type rather than geographical production alone.. In a similar instance, cheddar cheese originated in the English village of Cheddar. Through export, the same variety of cheese is produced in other countries such as Canada and the United States. As the type of cheese became widely popular, and thus generic, the village of Cheddar could not apply for an exclusive geographical indication for cheese produced within the physical borders of the village. Nonetheless, the more specific name of “West Country Farmhouse Cheddar” is protected within the European Union with a geographical indication while still allowing cheddar cheeses from around the world to be sold alongside.[xii]
An example of a case where the territorial origin has led to an exclusive right is the nomenclature and use of “champagne” as discussed in the case of Bollinger v Costa Brava Wine Co Ltd [1960] RPC 16.[xiii] This case is commonly referred to as the Spanish Champagne case: the English High Court found that the Costa Brava company had benefitted from a form of extended passing-off as the labelling of the sparkling wine suggested that champagne could come from Spain and that the reputation of the geographical region of Champagne, France could be damaged by this “misrepresentation.” In a similar proceeding, the Australian Manuka Honey Association (AMHA) opposed the United Kingdom Trade Mark Registry’s decision to allow a New Zealand group to trade mark the term Manuka Honey.[xiv] As reported in The Guardian, “manuka honey is produced from bees feeding on the pollen of the Leptospermum scoparium plant, known as ‘manuka’ in New Zealand and ‘tea tree’ in Australia, “ which might seem to support the New Zealand group’s claim, but “Australian beekeepers have challenged the ruling, saying the island state of Tasmania in Australia was the first in the world to produce the distinctive honey.”[xv]
What’s in a name? In the cases considered here, the names reflect particular (legal) disputes about taste, and these disputes have extended, or extraterritorial, effects that shape consumer perceptions. Names can monopolize taste.
All links accessed 1 November 2018
Further Reading:
European Court of Auditors, Special Report No 11: Do the Design and Management of The Geographical Indications Scheme Allow It To Be Effective? (2011)
Nadia Serementakis, “The Memory of the Senses: Historical Perception, Commensal Exchange and Modernity” (1993) 9:2 Visual Anthropology Review 1
Oskari Rovamo, “Monopolising Names? The Protection of Geographical Indications in the European Community” (2006) Helsinki University
Sam Jones and Daniel Boffey, “Cheesed off: Spain’s manchego makers vow to fight EU name ruling” in The Guardian 24 April 2018
Department for Environment, Food and Rural Affairs “EU Protected Food Names Scheme”
Notes:
[i] http://www.quesomanchego.es/historia?set_language=en
[ii] https://web.archive.org/web/20100610080549/http://www.fmvz.unam.mx/fmvz/reportajes/quesos/quesos.htm
[iii] See EU quality logos at https://ec.europa.eu/agriculture/quality/schemes_en.
[iv] See Oskari Rovamo, “Monopolising Names? The Protection of Geographical Indications in the European Community” at II: http://ethesis.helsinki.fi/julkaisut/oik/julki/pg/rovamo/monopoli.pdf.
[v] Case 120/78 Rewe-Zentral AG v Bundesmonopoleverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1530889477104&uri=CELEX:61978CJ0120.
[vi] Case C-3/91 Exportur v LOR and Confiserie du Tech (Exportur) [1992] ECR I-5529: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1530889601925&uri=CELEX:61991CJ0003.
[vii] Para 8, supra note 7.
[viii] Para 24, supra note 8.
[ix] https://www.theguardian.com/world/2018/jan/15/spain-mexico-trade-deal-manchego-cheese-dispute
[x] See Dan Svantesson’s blog post: “The concept of ‘extraterritoriality’: widely used but misguided and useless” (17 November 2015): “[S]tates have exclusive powers in relation to everything that occurs within their respective territories, and this right is combined with a duty to respect the exclusive powers of other states over their respective territories”.
[xi] Ibid.
[xii] http://www.qualigeo.eu/en/prodotto-qualigeo/west-country-farmhouse-cheddar-cheese-dop/.
[xiii] Summary of the case can be read at: https://www.thedrinksbusiness.com/2010/12/50th-anniversary-of-champagne-case/
[xiv] https://www.theguardian.com/world/2018/jan/12/australia-and-new-zealand-at-loggerheads-over-manuka-honey-trademark.
[xv] Ibid.
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