Trademarking Terroir: Geographical Indications as a Form of Cultural Property in the U.S.-EU Trade War

I. Introduction

A. Background and Context

For decades, a trade war has been fought between European and American producers of wines, spirits, and agricultural products. Its battlefields have been courtrooms and boardrooms as manufacturers and trade organizations have sought to protect their right to say a product was made in a region famous for the growth or manufacture of that product. Every victory has given producers the right to exclude others who do not make products in that region from the use of that geographical name. Over the years, distillers have fought to protect the appellation “Armagnac,” butchers to protect the term “prosciutto di Parma,” and farmers to protect the designation “Idaho potatoes.”

These terms are known as geographical indications (GIs), and they ensure products that originate in a particular locality have the benefit of the quality or reputation that is attributable to that locality.1 GIs are classified as intellectual property (IP) and function similarly to trademarks in that they add commercial value to products.2 Consumers will pay more for a product with a GI label that evokes a region with a long history of producing that good because it stands for expertise and high quality.3

The war surrounding GIs started over divergent legal regimes and opposing economic interests. The EU protects its GIs jealously against a backdrop of centuries of production and tradition. European producers also have a strong economic motive: in 2017, worldwide sales of GI-designated products brought the EU €74.8 billion. 4 By contrast, the U.S. legal regime is consumer-oriented and treats many terms that originated as place names as generic references to a type or style of product.5 As a result, U.S. regulators and courts have frequently denied European producers the exclusive right to use place names to differentiate their products in the American market. As a consequence of these decisions, the European legal authorities have become reluctant to protect American terms of origin in its markets. As in many trade wars, a destructive tit-for-tat pattern has emerged and has not been cured by international agreements.

In a recent and typical skirmish, the Fourth Circuit Court of Appeals ruled that, in spite of Swiss and French cheesemakers’ “painstaking” manufacture of gruyere “from local, natural ingredients using traditional methods that assure the connection between the geographic region and the quality and characteristics of the final product,”6 “gruyere” is a generic term in the U.S. and anyone can sell cheese under that name.7 Swiss and French cheesemakers were thus barred from registering “gruyere” as a certification mark in the U.S.8 The court relied on evidence that for decades, most of the cheese sold as “gruyere” in the U.S. was not produced in the Gruyère region, and that American consumers therefore associate the name with a type of cheese, not with a place.9

Wines and spirits are the most high-profile sector in the U.S.-EU GI war. This is mainly because of economics. By value, the U.S. is the EU’s largest wine10 and spirit11 export market, and the EU is the U.S.’s second-largest wine12 and largest spirit13 export market. Because of this prominence, the wine and spirit sector will figure significantly in this Comment as an example of how the trade war has developed. 

Despite some instances of cooperation, differences between the U.S. and EU legal regimes and approaches to GI protection have not been settled by a series of international and bilateral treaties. The parties’ attempts to use multilateral dispute resolution fora like that of the WTO have failed, and the relevant treaties and conventions contain grandfather clauses that allow U.S. producers to use GIs that European producers think should be reserved for them alone. 

Economics has been the dominant lens through which the conflict has been viewed, and commercial considerations have driven the legal agenda to the current stalemate. This Comment proposes a new and more productive perspective on the decades-old trade war: GIs as a form of cultural property (CP). As CP, GIs should be legally protected in accordance with moral considerations, recognition of collective ownership, and willingness to build toward an international consensus surrounding GI protection using bilateral agreements and national legal frameworks.

B. Contributions of the Cultural Property Regime

CP has been defined in various ways, but in this Comment, it means a tangible or intangible possession of a cultural group which entails “some set of collective rights concerning ownership, access, and use, even if title to the property is held by a particular individual.”14 The best-known form of CP is cultural heritage,15 defined as “monuments, town sites, archaeological sites, and works of art which carry and transmit the cultural features of a society.”16 Examples include the Elgin marbles and the Benin bronzes. 

CP is protected in various ways nationally and internationally. Under one international convention, countries first populate notice registers with particular tangible works of cultural heritage. They then enact bilateral agreements with other states parties to interdict the illicit movement of those works across national borders.17 Ultimately, the works are repatriated to the rightful owners. 

Domestic protection regimes can function somewhat differently. For example, a unique U.S. scheme provides that only registered members of Native American tribes can claim to have produced art works marketed as “Indian made.”18 This regime protects the term “Indian” as a form of CP and locates that protection under the trademark umbrella. 

Another type of CP is traditional knowledge (TK), defined as “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”19 Examples include authentic indigenous arts, traditional songs and music,20 and genetic resources in the form of plants cultivated by Indigenous Peoples. TK can be misappropriated or counterfeited and there is a growing movement to protect TK nationally and internationally. 

C. GIs as Cultural Property

The concept of GIs originated in Europe with the French notion of terroir, a belief that agricultural products obtain their distinctive and valuable qualities from the soil, culture, and traditions of the localities in which they were produced.21 GIs owe their value largely to the sense of history, place, and skill that they evoke in the minds of consumers. As such, they are manifestations of the culture of the place that they reference. Those who possess the right to use GIs are owners and stewards of that culture and history. In this way, GIs are cultural property and should be protected as such, even by those on the American side of the trade war.

There is an existing body of largely European scholarship contending that GIs are a culturally significant form of property based on justifications found in the social sciences. This Comment takes that argument into the legal realm by contending that GIs meet legal definitions of CP established by international treaties to which both the U.S. and EU are parties. In addition, this Comment imports the notion that GIs are CP into the U.S. context, where it is largely unknown, by pointing out that GIs are analogous to a uniquely American conception of CP established by federal statute. As such, GI language itself carries cultural meaning and value. This cultural value translates into commercial value, and GI regimes should recognize producers’ property rights in GIs for moral and economic reasons.

D. Argument and Solution Offered

The U.S.-EU trade dispute can benefit in several ways from a new perspective on the IP concept of GIs. GIs are CP under international legal definitions, and they are also closely analogous to American statutory conceptions of CP. Considering the ways in which U.S. and international CP protection regimes can inform GI protection may help break the deadlock between the U.S. and EU. Specifically, the following general CP principles have implications for the GI debate: first, producers of CP have a right to exclusive possession and use of their property; second, this right creates a presumption in favor of legal action against unauthorized users of protected cultural terms and repatriation of stolen CP; third, legal protection of CP can increase cultural strength; and fourth, bilateral arrangements, national legal protections, and CP registers can accomplish international CP goals under multilateral treaties. Though much CP is tangible, the U.S. protects the usage of culturally significant terms on products manufactured by Native Americans.22 Those who use protected terms but are not Native American face civil fines for misusing the terms. As intangible CP, GIs would be protected in a similar way but would be tied to places rather than peoples. 

Relatedly, an analysis of how GIs fit within the American trademark scheme yields the following intermediate observations: greater American recognition of European GIs is advisable for both moral and economic reasons given the long-term interests of American producers, and restricting usage of European GIs will serve consumers better by providing more information than they currently have about available products. These considerations form the basis of this Comment’s recommendations, which counsel that the disputing parties should focus on which GIs are to be protected rather than attempting to reconcile how they are to be protected: 1) there should be balanced American recognition of a greater number of European GIs in exchange for reciprocal European recognition of American ones; 2) the GI debate on the international stage should be connected to the burgeoning movement to protect traditional knowledge, which was the subject of the first new treaty under the World Intellectual Property Organization in the decade preceding May 2024;23 3) engagement between the U.S. and EU on the subject of GIs should continue on a bilateral basis as a prelude to any multilateral efforts; and 4) part of that bilateral interaction should be a notice register of U.S. and EU GIs. 

II. GIs: Current National and International Legal Regimes

A. Rationales for Protection of GIs

As a form of IP, GIs are often thought of in ways that analogize them to trademarks. GIs protect consumers by serving as source indicators and protect producers against unfair competition,24 specifically the anticompetitive practice of “passing off” one’s goods as those of another.25 Also, as with trademarks, possessing and using GIs is thought to provide producers with an incentive to improve the quality of their products.26  

Morally, some traditional concepts within property law are applicable. According to the Lockean view, producers are morally entitled to own and use GIs based on the labor they contribute and the improvements they make to their products.27 Relatedly and crucially, all members of a group of producers can be considered to have a moral right of authorship that extends “throughout a region and across time.”28 In the case of wine, “the group or community would include those who planted and grew the relevant vines, harvested the grapes, and made them into wine, from the beginning down to the present day.”29  This view is often expressed with respect to copyright law and attributed to Kant and Hegel.30 In the GI context, this theory recognizes that agricultural production from a certain terroir in a particular, time-honored way is important for producers’ sense of identity, self-expression, and personhood. This justification, with its related notions of history, tradition, and culture, is central to the non-economic conception of GIs that render them a form of CP.

B. EU Legal Protections

Europe, the birthplace of GIs, maintains three main types of protection that differ in their level of stringency and the products to which they apply. The protected designation of origin (PDO) category can apply to food, agricultural products, and wines, and requires that the production, processing, and preparation of the product take place in the indicated geographic region.31 Protected geographical indications (PGIs) can apply to the same types of products and require that at least one of the stages of production, processing, or preparation takes place in the indicated geographic region.32 For wines, this also means that at least 85% of the grapes used in the product have to come from the indicated region.33 The “geographical indication” category applies only to spirit drinks and requires that at least one of the stages of distillation or preparation takes place in the indicated region.34 As of 2016, around two-thirds of all EU GI registrations were for wine.35

EU caselaw relating to GIs centers on registration of terms and enforcement of the rights of GI holders. In a recent case, a Spanish restaurant company serving a sparkling beverage called champanillo(“little champagne”) attempted to register the mark but was denied permission because it was too similar to the existing PDO “champagne.”36 The GI holder brought an infringement suit against the company, and the Provincial Court in Barcelona requested a preliminary opinion from the European Court of Justice (ECJ).37 In a ruling significant for the breadth of protection it granted to producers, the ECJ interpreted EU regulations to protect PDOs from misuse when similar marks merely “evoke” the product designated by the PDO.38 The ruling exemplifies the strong protection for GIs that the EU maintains across its member countries.

By contrast to the American legal regime, EU regulations provide true geographical protection. The U.S. protects GIs indirectly as various designations within the trademark family, except in the case of selected American wines and spirits.

C. U.S. Legal Protections

The U.S. IP scheme protects GIs as certification marks, which indicate that a product meets standards set by the owner of the mark, the government, or a research entity; or as collective marks, which indicate that the product was made by a member of a union or association and hails from a particular geographic area, is of a certain quality, or uses certain production methods.39 These marks are granted by the U.S. Patent and Trademark Office (PTO).40  

Wines and spirits are also subject to labeling requirements imposed by the Alcohol and Tobacco Tax and Trade Bureau (TTB), which classifies terms of geographic significance as generic, semi-generic, and non-generic.41 Generic terms refer to a style or type of product42 while semi-generic terms are geographically significant but also indicate a type or style of wine. 43 The latter category includes Burgundy, Champagne, Chianti, Port, and Sherry.44 Non-generic terms are classified as either distinctive, which means the product originates from a highly specific area, or not distinctive, which indicates a more general area of origin.45 Examples of the former include Pommard and Bordeaux Rouge and examples of the latter include Napa Valley and French.46

The TTB also administers a nascent GI scheme for U.S. wine producers whereby it reviews and approves petitions to designate American Viticultural Areas (AVAs), which are then used only on labels of products from those areas.47 There are currently 274 AVAs.48

As with EU caselaw, U.S. cases revolve around registration of GIs as types of marks and enforcement of mark owners’ rights against infringers. As in the gruyere case described above, American courts often hold that European GIs are generic designators, but courts occasionally rule for European plaintiffs. In August 2024, the Court of Appeals for the Federal Circuit held that a hip-hop record label seeking to register the mark “Cologne & Cognac Entertainment” potentially infringed the protected common law certification mark “cognac,” which is owned by a French trade group.49 The Court found that “cognac” is not generic and faulted the analysis performed by the Trademark Trial and Appeal Board (TTAB) as to whether the mark was famous.50 The case was remanded to TTAB.51  

Under the recommendations of this Comment, more European GI owners would be permitted to register their marks or assert common law rights to use the marks and U.S. courts would recognize the rights of those owners. The mechanics of how U.S. law protects GIs as marks within the trademark family would not change, at least in the short term.

D. International Treaties

GIs are protected by a series of international treaties, most of which are administered by the United Nations (U.N.) or the World Trade Organization (WTO). These treaties have highlighted the fact that the legal mechanisms by which the EU and U.S. protect GIs are very different, and this difference has been one of the factors preventing international harmonization of GI protection. Multilateral interactions between the parties have been largely unproductive as the EU pushes for greater GI protection and the U.S. resists. 

The only productive interaction between the parties in the recent past has been the 2006 Bilateral Agreement on Trade in Wine. Under this agreement, each side recognized additional GIs protected by the other. As described below, it makes sense to build on this bilateral framework.52

1. Early treaties

The first major international treaty protecting IP was the Paris Convention for the Protection of Industrial Property, concluded in 1883 and administered by the World Intellectual Property Organization (WIPO).53 Article 10 of the agreement provides that any product bearing a false indication of source is subject to sanctions as long as the country seeking enforcement has current laws allowing for the seizure of falsely-labeled imported goods.54 The U.S. and many European nations are some of the 180 signatories.55

The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration was concluded in 1967 and created a system for protection56 of “the geographical name[s] of a country, region or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.”57 The EU is one of the thirty signatories, but the U.S. is not.58

2. Trade-Related Aspects of Intellectual Property Rights, 1995

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered through the WTO and adopted in 1994, was a landmark in the development of the international IP regime. Its signatories include 166 countries, the U.S. and EU among them.59 Article 22 defines GIs as designations “which identify a good as originating in the territory of a Member . . . where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”60 It also provides that countries can sanction parties who use false GI labels and that countries may refuse the registration of a trademark that is geographically misdescriptive.61  

Notably, due to the historical and economic importance of wine and spirit GIs, Article 23 of TRIPS grants them an enhanced degree of protection. It requires member states to provide remedies for parties seeking to prohibit usage of false GI labels even when the real origin of the article is indicated, the GI is in another language, or the GI is used in connection with words like “kind,” “type,” or “style.”62 The Article does not specify the remedies that must be provided, but leaves that choice to the domestic law of each member country.63 Thus, wine and spirit GIs “enjoy a near-absolute degree of exclusivity.”64

However, this strong protection for GIs is qualified by Article 24, which grandfathers in usage of customary generic terms for products in member nations.65 Other exceptions to the protection of GIs arise when terms have been in use since before April 15, 1984, and when a GI has already been registered as a trademark.66  

TRIPS provides that disputes between the parties arising from the treaty’s provisions can be resolved via the WTO’s dispute settlement procedure.67 The U.S. and Australia availed themselves of this mechanism in 1999 when they challenged the EU’s GI regulations.68   This case represented an American attempt “to prevent the EC model of GI protection from becoming a de facto global standard.”69 The WTO Panel held that EU regulations imposed more burdens on non-EU nationals seeking GI protection than on EU applicants, but upheld European regulations that permit GIs infringing existing trademarks to be registered as long as the trademarks have no acquired meaning for consumers.70 Ultimately, both sides claimed the Panel had ruled for them and the process failed to resolve differences between the parties.71

TRIPS also calls for members to engage in talks to build an international register of GIs for wines and spirits, but this initiative has stalled.72 Due to what one scholar refers to as “populist economic nationalism,”73 the U.S. has withdrawn from multilateral engagement in this area, and other scholars have recognized that the parties’ “intransigent” stances on GIs “are unlikely to be resolved other than by serious political compromise.”74

3. Agreement between the U.S. and EU on trade in wine, 2006

The U.S. and the EU concluded a bilateral agreement on trade in wine in 2006 (2006 Agreement) which requires the U.S. to pass laws limiting the use of sixteen semi-generic terms that function as GIs in the EU.75 American producers already using these terms are permitted to continue but no new uses of these terms can be approved.76 In return, the EU agreed to protect all the U.S. GIs that negotiators requested.77 The 2006 Agreement was intended to provide a framework for ongoing talks between the parties, but divergent interests have led to a lack of progress in this forum also.78

4. Geneva Act of the Lisbon Agreement, 2015

The Geneva Act extends the protections that the Lisbon Agreement accorded to appellations of origin to GIs.79 The Act provides that parties register all GIs and appellations of origin on an international register to be maintained by WIPO.80 Parties must ensure that GIs and appellations of origin registered in another member country are not used fraudulently or subject to genericide.81 The EU has signed onto the Act while the U.S. has not.82

E. Ongoing Issues

The dueling legal regimes and economic interests of the U.S. and EU have prevented international harmonization of the law surrounding the use of geographic place names on agricultural products, wines, and spirits.

Europe is the largest producer of wine in the world,83 and 82% of EU wines are protected by some kind of GI.84 The EU is accordingly producer-oriented and advocates for its vintners who “rely heavily on the environmental, traditional, and cultural aspects of origin” when marketing their goods.85 By contrast, the U.S. is largely consumer-oriented86 and disposed to facilitate international trade without restrictions related to GI use. 

Another difference between the parties is the nature of the legal protection each offers to geographic place names. Under the European scheme, GIs are public rights that are available for all producers making products in accordance with certain regulations in a given place.87 Under the American scheme, GIs (as certification or collective marks) are private rights that are owned by individuals or organizations that have petitioned the government for the privilege of administering the use of that mark.88 Producers obtain permission to use GIs by joining those organizations. Thus, the European system has a much larger role for government than the American system. 

III. CP: Relevant National and International Legal Regimes

Given the deadlock that has resulted from considering only GIs’ commercial value, it is useful to consider another perspective that takes into account the significance of GIs to the people and civilizations to which they owe their existence.

A. Rationales for Protection of CP

There is overlap between the domains of IP and CP. Items of IP can have cultural significance, and items of CP can have IP characteristics. In order to qualify as CP, items or ideas must have particular value to the identity, beliefs or activities of a group of people, but scholars differ as to how high the bar of significance must be set for the CP concept to apply. According to some, any “objects of artistic, archaeological, ethnological or historical interest”89 can qualify, whereas according to others, items must have “an important role in the religious, cultural or political life of people of the collectivity by functioning as a symbol of collective ideals, a source of identity for its members, as a ceremonial object, a focus of historical meaning, an expression of their achievements, or as a link with founders or ancestors” in order to be considered CP.90 There are also a wide range of definitions that straddle the space between these two camps.91

Regardless of its definition, many scholars argue that CP deserves protection because of the “significance it has for states, individuals, non-state entities, and groups.”92 Because a group of people has created, inherited, revered, and/or identified with an object of cultural significance, that group can be said to own the object and to have the right to possess it to the exclusion of others. According to this moral argument, when CP is “unjustly taken from its owners, then those wronged can demand reparation.”93 As detailed in subsequent Sections, language can function as CP also, and rights holders should be compensated for misuse of culturally important terms.94 Another rationale holds that CP is worth protecting because it is commercially valuable,95 either because CP in the form of indigenous knowledge contributes to economic activity or because those who possess CP (such as museums) can charge people for visiting and studying artifacts. A further justification holds that protecting CP in the form of indigenous crafts and TK strengthens cultural cohesion and can help ensure cultural survival.96

B. National and International Legal Protections

There are a number of national and international legal regimes protecting CP. This Comment will touch on those that preserve collective ownership, ensure cultural vibrance, achieve restitution of property, and build international connections in order to protect CP in much the same way that this Comment argues GIs should be protected.

1. 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict

The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) was intended to provide protection for CP in war zones. It defines CP as “a movable or immovable property of great importance to the cultural heritage of every people,”97 calls for states parties to register notable items of CP with the U.N. Educational, Scientific, and Cultural Organization (UNESCO), and provides a procedure by which other parties can object to such registration.98 It also provides that the states parties enforce penalties for looting or destruction of CP under national laws.99 The U.S. and many European countries are signatories.100

The Convention’s multilateral notice register, objection procedure, and reliance on national laws are all important provisions that this Comment will consider in the context of GI protection.

2. 1970 U.N. Educational, Scientific, and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property

Under the aegis of UNESCO, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (UNESCO Convention) was signed in 1970 and has been ratified by 147 countries, including the U.S. and many countries in the EU.101 The UNESCO Convention’s goal is to fight international traffic in looted objects of CP.102 The Convention calls for member states to seize and return CP stolen and illegally imported according to their national laws.103 Cooperation requires that the laws of both the source and market nations hold the export/import activity in question to be illegal.104 The Convention also provides that states enter into bilateral CP agreements with other states that govern the imposition of import restrictions.105 The treaty calls for states parties to establish inventories of CP106 which strengthen the case for restitution. 

Caselaw deriving from the enforcement of the UNESCO Convention is less applicable to GIs because it centers on empowering Customs to seize and return tangible objects of CP to their owners.107 By contrast, cases pertaining to GI protection center on ensuring that intangible geographic terms are registered and/or used only by those entities who are entitled to do so. 

Provisions of the treaty that are important to the consideration of GI protection include bilateral engagement, reliance on national laws, and the maintenance of an inventory of CP for preventive purposes. 

3. Indian Arts and Crafts Act, 1935

The Indian Arts and Crafts Act (IACA), passed in 1935 and amended in 1990, was the first federal statute to protect indigenous CP108 by criminalizing the sale of items as “Indian”-made when their creator was not a member of an officially-recognized Native American tribe.109 The law was intended to protect Native American craftspeople from unfair competition in the form of foreign manufacturers “passing off” their products as native-made.110 Under the IACA, “indigenous artists are granted control of the production of their own cultural property.”111

In 1990, IACA was amended to allow for a private right of action and civil sanctions.112 The vast majority of civil cases brought under IACA now result in settlements at the district court level.113 In one of the more notable cases, Native American Arts, an interest group comprised of members of the Ho-Chunk Nation,114 sued J.C. Penney for selling “imitation Indian arts and crafts that the stores misrepresent as genuine Indian-made products.”115 J.C. Penney settled the case for over $1 million.116

Because IACA protects rights in intangible language rather than rights in tangible objects, the IACA is the model of CP protection that is most analogous to the GI model. However, there is a dissimilarity between CP protected under IACA and the legal framework protecting GIs. IACA reserves rights in cultural terms for a particular ethnic group while GI protection reserves rights in geographical terms for people producing goods in particular places. As part of the federal “imperative to protect Indian tribes,” IACA was motivated not only by widespread counterfeiting of Native American crafts, but by the exploitation and dispossession that Native Americans have experienced throughout U.S. history.117 Generally speaking, there is no such history of dispossession animating most GI protection regimes. Nevertheless, the uniquely American IACA regime is highly analogous to the legal treatment of GIs in the U.S. context, and this Comment will use IACA as an example of how GIs can be protected under the existing American trademark scheme.

4. WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, 2024

In May 2024, thirty countries118 signed the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (Treaty on TK), which provides that new patent applicants whose inventions are based on genetic resources and/or TK disclose the source of the genetic resources or the community that supplied the TK at the time of application.119 Adopted mostly by small countries that serve as the source of such TK, the agreement was the first WIPO treaty signed in over a decade, and was the first international treaty that deals with genetic resources and TK.120 Domestically, the U.S. does not yet protect TK or cultural expressions, except inasmuch as IACA can be said to protect them.121

IV. Current Scholarship & Potential Solutions

There is a relative paucity of scholarly literature addressing the international controversy over GIs. As one scholar wrote, “GIs have received little sustained attention” as an academic subject, and “the rationales for protecting GIs” have not been “rigorously analyzed.”122 Potential solutions to the GI dispute have been largely “grounded in political and economic calculations”123 rather than in philosophical, moral, or rights-based rationales. The solutions scholars and practitioners have proposed to solve the GI standoff run the gamut from adopting the U.S. position that international GI protection should decrease to adopting the EU position that international protection should be expanded.124

Those in the U.S. camp tend to argue that the U.S. should maintain its current legal scheme rather than switch to a GI regime because such a move would be costly and would deprive American producers of the use of generic geographic terms. Additional arguments in this vein include that claims to geographic origin are best protected under a trademark scheme,125 that GI protections should be decreased internationally under TRIPS,126 and that the U.S. government should seek additional international markets for American products labeled with “generic” geographic terms, further undermining European claims to those terms.127

Scholars in the EU camp maintain that geographic terms are best protected under a formal GI scheme.128 They argue that, in the long term, American producers will want their famous geographic appellations protected in foreign markets and that it will save American producers a legal battle in the future129 if U.S. authorities protect European GIs to a greater extent now. These scholars point out that the EU has already taken steps post-TRIPS to achieve greater domestic protection for GIs130 and advocate that international GI protection be harmonized up to the heightened TRIPS standard mandated for wines and spirits.131 Another specific recommendation is that the EU should claw back protection for GIs that are currently unprotected in return for European protection of AVAs.132

Legal scholarship connecting the IP and CP regimes is relatively sparse. However, there is some literature exploring the nexus between GIs and indigenous and traditional knowledge. Scholars studying the best way to promote indigenous communities’ production of goods based on biocultural heritage have found that GIs and trademarks can be effective means to achieving that end,133 and scholars studying the most effective way to promote Indigenous Peoples’ ability to achieve economic well-being while discharging their duty to preserve cultural knowledge of medicines and genetic resources is to grant them CP rights.134 Yet other scholars have recognized that GI and IP regimes are limited in their ability to protect CP from appropriation for commercial gain because many expressions of culture cannot be protected in every jurisdiction in which they might be used.135 Still, there is interest in “arguing that GIs serve as a form of poor people’s intellectual property rights because they recognize the knowledge of local weavers, farmers, and craftspeople rather than just the high-technology contributions of multinational corporations.”136

A related body of literature explores the nexus between CP and GIs through the lenses of anthropology, food studies, economics, and other social sciences.137 This scholarship takes for granted the moral justifications underlying legal protection for GIs and is of limited applicability to the transatlantic trade war, as it generally does not focus on the legal aspects of the dispute.

V. Proposed Solution

This Comment recognizes that GIs are CP by legal definition and analogy. Therefore, the legal regimes that protect CP introduce a moral-philosophical reason to protect the property rights of GI owners. This new understanding of GIs leads to the conclusion that GI protection should be expanded rather than contracted. Also, there are complementary economic reasons for U.S. authorities to expand GI protection.

In addition, this Comment recognizes that GI legal regimes can benefit from principles and characteristics of CP protection frameworks. These characteristics include harnessing economic mechanisms to promote cultural well-being, relying on national regulation to designate protected property, using bilateral negotiation as an aspect of international engagement, and deploying notice registers of protected properties. 

A. Applying CP Principles to the GI Debate

There are several areas of convergence between GIs and CP: both types of rights are collective; both are a way of owning history, place, culture, and expertise; both owe their value to the acquired and inherited skill of a group of people inhabiting a particular place and engaged in particular activities; and misappropriation of both GIs and CP can result in moral and economic harm to rights holders in another country. In fact, GIs fit international definitions and American conceptions of CP and should be protected according to the principles governing CP regimes. This is especially true in the U.S., which has ratified both the Hague and UNESCO Conventions and passed IACA. 

This Section argues that imposing principles from the CP regime on the GI debate supplies moral reasons for both the U.S. and EU to recognize additional GIs claimed by their counterparts. It also argues that it is in the long-term economic interests of U.S. producers to recognize additional European GIs in return for European recognition of AVAs. Finally, this Section offers four recommendations to foster the long-term economic well-being of both parties to the trade war by building a legal framework that will ensure GI owners enjoy both the intellectual and cultural dimensions of their property.

1. GIs fit international definitions and U.S. conceptions of CP

Under the Hague Convention, CP is “movable or immovable property of great importance to the cultural heritage of every people.”138 GIs are intangible and therefore movable, and it can be argued that the economic, cultural, and historical value represented by GI designations is of importance to all people. If GIs were wiped out and words like “champagne” and “cheddar” no longer held any meaning with respect to consumable products, the world would have lost the means of denoting the traditions, expertise, history, and quality of geographically-designated products. “Champagne” would become simply “sparkling wine,” a beverage made all over the world in many different ways, resulting in many different levels of quality. The public would be worse off for not being aware of how “champagne” differed from other sparkling wines from places like Romania, Australia, Spain, California, and the U.K. Producers would be worse off for having lost the considerable value of the appellation into which they had invested so much time, money and care. In addition, producers’ strong self-identification with the economic tradition of a particular place would be lost. Without the commercial shield afforded by GI protection, small producers would not be able to sustain niche industries, and cultural communities where such products are currently made could disappear.

The UNESCO Convention offers another definition of CP: property that is “designated by each State as being of importance to . . . history.”139 GIs arguably fit this definition as they are protected by national governments and owe their economic value to the expertise that producers have built over generations.

GIs are also closely analogous to the U.S.’s domestic concept of CP under IACA. According to the statute, “Indian . . . means a person who is a member of an Indian tribe or  . . . is certified by an Indian tribe as a non-member Indian artisan,”140 and an Indian product is “any art or craft product made by an Indian,” meaning “an Indian has provided the artistic or craft work labor necessary to implement an artistic design through a substantial transformation of materials to produce the art or craft work.”141 Thus, the beneficiaries of the Act’s protection are designated by affiliation with a particular cultural group, much like the users of certification marks. Under the Act, Native American craftspeople are entitled to use a “certificate” on their goods that shows the goods are “genuine Indian-made handicraft products.”142 This certificate is a designation of origin and functions like a certification mark. The provisions of IACA show that CP can be both intangible and protected under the American legal system. 

In the first circuit court case to interpret IACA, Seventh Circuit Judge Richard Posner made a direct analogy between the statute’s regulatory scheme and that of GIs when he wrote: “in effect the regulation makes ‘Indian’ the trademark denoting products made by Indians, just as ‘Roquefort’ denotes a cheese manufactured from sheep’s milk cured in limestone caves in the Roquefort region of France.”143 Posner’s endorsement of the similarities between the IACA framework and the GI framework demonstrates the way in which the American legal regime regards both CP and GIs as protectable IP, and the way in which GIs are treated very similarly to CP under U.S. law.

2. Moral imperative to protect producers’ property rights in CP and IP

CP regimes assign rights based on who is producing the goods in question rather than the characteristics of the goods themselves. For example, IACA protects craftspeople affiliated with Native American tribes regardless of whether they produce “traditional or nontraditional goods.”144 Craftspeople protected under IACA receive benefits by virtue of their membership in an organization and because their labor achieves a “substantial transformation” of the raw materials they begin with.145 This Lockean concept of ownership through labor finds an exact match in the activities of a trade organization that bestows a GI (or its U.S. analogue, a certification mark) on members who produce goods in a particular region in accordance with the group’s standards. 

Designation of GIs as “property,” either intellectual or cultural, weighs the conversation toward producer rather than consumer rights in general. This is especially true in the context of regimes protecting CP, which entail recognition of producer ownership and a moral obligation to return misappropriated items. The UNESCO Convention, for example, recognizes that “the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin” and “the States Parties undertake to oppose such practices . . . by helping to make the necessary reparations.”146 These phrases imbue CP with actual value and recognize that the theft of CP imposes real loss.

The waters are muddier with respect to intellectual property because consumers’ right to know the source of the products they buy is one of the major bases of trademark protection in the U.S.147 However, the origin of trademark law is in the tortious concept of unfair competition,148 which protects producers from the misleading practices of other producers. The “initial justification” for GI protection “is the prevention of fraud, of ‘passing off’ a good as if it has been sourced from where it has not, ostensibly preventing the dilution of a geographical production area’s reputation by low quality—or simply different-quality—produce from another region.”149 Also, the parties empowered to sue for trademark infringement are producers, not consumers. Although the test for whether there has been infringement is likelihood of consumer confusion,150 that test is not done wholly in the interests of consumers. Its object is to ascertain whether producers’ rights have been violated by other producers’ activities. If so, the infringer can be found liable to the trademark owner for damages.151 American reluctance to recognize additional European GIs should be tempered by recognition of producers’ property rights in new and disputed GIs. 

3. Promotion of cultural vibrance

The next relevant concept inherent in CP regimes is the promotion of cultural vibrance. CP protection ensures that producers of CP reap the exclusive benefits of their work. This goal is demonstrated by IACA, which explicitly “protect[s] the various enterprises organized by . . . groups of Indian craftsmen.”152 The purpose of this protection is to support the economic well-being of Native Americans “through the development and expansion of the Indian arts and crafts industry in the United States.”153 In this way, IACA “s[eeks] to protect Native cultural property by promoting the artwork of Native artists.”154  

The same ethos links TK with IP protection in the interests of promoting traditional industries and cultural vibrance. An important aspect of the Treaty on TK is the recognition of “the role that the intellectual property system plays in promoting innovation, transfer and dissemination of knowledge and economic development to the mutual advantage of providers and users of genetic resources and traditional knowledge."155 Ideally, forms of CP can be commercialized for the benefit of their cultural originators by the IP regime. However, the “spread of Westernized patent law . . . has created a fertile ground for powerful patent-holders–often multinational corporations–to secure rights in indigenous traditional knowledge.”156 The Treaty on TK aims to mitigate this appropriation by acknowledging the origin of TK that is used in lucrative patents.

As a form of CP, GIs should be protected in a way that ensures only those groups who originated and produced the commodity in question reap the economic rewards of that production. Protection of GIs promotes the cultural development of particular regions by supporting the industries that utilize GIs. This holds true not just for existing producers but also for new producers who could greatly benefit from the shield that GI protection provides to nascent industries. Failing to protect the GIs of emerging producers in developing countries results in these countries being “particularly hard hit as they are deprived of a substantial protection and loss of revenue.”157 Protecting the GIs of developing producers would “promote trade and investment, in particular for all the developing . . . countries which depend on exports of primary commodities.”158

This protection is not only for producers in developing countries, but for small producers in developed regions like the EU. As scholars have written, “a collectively owned IP right could provide an impetus for communities to strengthen their collective values and cultural identity.”159 Indeed, some scholars assert that “[s]mall-scale agricultural and foodstuff producers in Europe have found that both GIs and trademarks have helped to protect and promote traditional methods and products.”160  

As CP regimes protect the cultural vibrance of a particular people, GIs protect the culture of a people in a particular place. Thus, unlike trademarks, GIs cannot be alienated from the enterprise of producing a good in a specific locality. Trademarks are regulated with some geographic considerations but can be sold as long as they retain the meaning consumers have come to associate with them.161 By contrast, the organization that owns an American certification mark used as a GI should not be able to sell that mark to an entity that uses it on goods not produced in the original geographic region designated by the GI. Enforcing this inalienability will ensure GIs foster the cultural well-being of people carrying on their economic activities in a given place.

4. Reliance on national regulation

The final relevant  aspect of CP regimes is national regulation and administration of legal protections. Under leading international treaties, nation-states are the creators, enforcers, and coordinators of the CP rights of groups within their borders. These norms should inform protection of GIs in the specific trade context of this Comment.

a) National legal protection of CP rights and the role of bilateral agreements

National governments are pivotal to CP protection schemes in three main ways. First, nations pass laws establishing CP rights and providing for legal redress and penalties for CP misappropriation. Second, nations enter into bilateral cooperation agreements to ensure there are channels for interdiction of illicit CP trafficking and to facilitate repatriation of stolen CP. Third, nations enter specific items of CP on notice registers.

The Hague and UNESCO Conventions task nations with safeguarding CP within their borders. The former mandates that parties “undertake to prepare in a time of peace for the safeguarding of cultural property situated within their own territory”162 and “respect cultural property situated . . . within the territory of other . . . Parties.”163 The Hague Convention also provides that parties “undertake to prohibit, prevent and, if necessary, put a stop to any form of theft” of CP.164 Furthermore, the Hague Convention relies on each state to take “all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons . . . who commit . . . a breach” of CP law “within the framework of their ordinary criminal jurisdiction.”165

Similarly, states parties to the UNESCO Convention commit to the “formation of draft laws and regulations designed to secure the protection of . . . cultural heritage”166 and “impose penalties or administrative sanctions on any person responsible for infringing” those laws.167 The UNESCO Convention also requires that states “admit actions for recovery of lost or stolen items of cultural property brought by . . . the rightful owners.”168

An essential component of the CP rights scheme at the international level is bilateral agreements between states parties. The UNESCO Convention provides that nothing in the Convention “shall prevent States Parties . . . from concluding special agreements among themselves . . . regarding the restitution of cultural property removed . . . from its territory of origin.”169 In fact, in the U.S. context, bilateral cultural property agreements are the main mechanism by which the UNESCO Convention is implemented. These agreements enable the imposition of restrictions such that “importation of designated objects into the United States is prohibited except under limited circumstances.”170 The goal of these agreements is to “protect cultural heritage by reducing the incentive for . . . pillage” of CP.171

b) National and international CP registers

The third way in which national governments are essential to CP protection is that they are tasked by the Hague and UNESCO Conventions to enter specific items of CP onto notice registers. Under the Hague Convention, this register is called the “International Register of Cultural Property under Special Protection”172 and states parties submit entries to the Director-General of UNESCO.173 Under the UNESCO Convention, the states parties maintain a national register, consisting of “a list of important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage.”174 This treaty also mandates that each party “recognize the indefeasible right of each State Party . . . to classify and declare certain cultural property inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported.”175 The UNESCO Convention thus provides very strong national rights over the regulation of CP and both the UNESCO and Hague Conventions require parties to respect other parties’ CP designations.

Overall, national legal regimes and bilateral agreements are the tools that international treaties mandate be used to protect CP rights. GIs, as a form of CP, should likewise benefit from protection under national standards, bilateral recognition agreements, and notice registers.

B. Complementary Economic Reasons to Expand GI Protection

1. Taking the long view to ensure protection of American GIs

Because applying CP principles to the GI regime involves recognizing producers’ property rights in geographically significant terms, it is necessary to address economic and legal opposition to stronger GI protection on the part of some U.S. officials and industry groups. This discussion forms an economic rationale, separate from and complementary to the CP-related moral rationale, for U.S. recognition of more European GIs.

Much American resistance to greater GI recognition stems from the fact that some American producers wish to use geographic terms that originated in Europe on the products they sell in the U.S. and around the world.176 American producers and economists argue that consumers of American products are accustomed to thinking of specific types or styles of products when they hear certain geographic place names such as Parmesan or Sherry.177 Depriving American producers of those terms by protecting GIs more strictly would result in lost revenue because consumers would be shopping for products under unfamiliar names.178 However, this argument fails to take into account long-term producer interests in protecting American GIs and disregards the possibility that phasing out the usage of some European GIs would likely not be as disruptive as critics assert. The wine market provides an example.

Although European GIs currently rule the wine market, U.S. wines are growing in prominence worldwide and AVAs are multiplying. The easiest and most long-sighted path to protecting these designations is to establish producers’ rights to them now. The reason why European terms like champagne and chianti are considered generic in the U.S. is because they were used for decades without challenge by European producers and came to stand for types rather than places. In order to avoid the same outcome of genericide for American GIs used in Europe, reciprocity is needed. American reluctance to protect the GIs of other countries “opens up U.S. producers to infringement upon American products in markets abroad when the international community refuses to respect the geographical indications of American goods.”179 Recognizing European place names in the American market in return for European protection of AVAs will help to lay this foundation, as already successfully tested in the 2006 Agreement.180 American designations like “Napa” and “Sonoma” are not currently associated with types of wine,181 but presumably someday they will be as American winemakers settle on the best way to make use of U.S. terroir.182 As described in Section V.B.1 below, a process of bilateral negotiation should determine exactly which EU GIs the U.S. will recognize.

Some U.S. industry associations are already in favor of greater GI protection. For example, Napa Valley Vintners “agree that each region is unique and produces wines impossible to duplicate anywhere else.”183 In fact, the organization has joined an international group called the Wine Origins Alliance, which counts among its members winemakers from nine U.S. states and eleven foreign countries.184 The Alliance’s Joint Declaration holds that “geographic place names of wine regions are the sole birthright of the grapes that are grown there,” and that members support “efforts to maintain and protect the integrity of these place names.”185  

 As for the economic disruption that is predicted to result from tightening usage of GIs,186 this disruption may be milder than critics predict. First, GI protection will be selective; not all European terms will be off limits for U.S. winemakers. This is simply because it is unrealistic to believe that U.S. authorities will allow the EU to claw back the dozens of currently generic wine-related terms European producers claim should be fully protected under U.S. law. Second, research shows that, for American consumers, recommendations from others, price, and brand are all more decisive factors in making wine purchasing decisions than region of origin.187 In one study, more than twice as many American respondents (49%) considered price a very important purchase factor than considered the region of origin a very important factor (17%).188 These findings suggest that restricting usage of European GIs in the U.S. will have a small impact on consumer purchasing because Americans derive more information from a wine’s price and brand than they do from any other information on the label. Thus, even if the name of a product changes overnight, American consumers will continue to trust brands and price points. 

For different reasons, restricting usage of European GIs on American products sold in Europe is not likely to result in a large economic disruption for American producers. A recent study shows that, for European consumers, region of origin is the most important attribute that is factored into a purchasing decision, followed by production method and price.189 Another study shows that Europeans choose wines primarily based on food pairing and geographical origin.190 European consumers are opinionated when it comes to geographic origin, so when Europeans choose to purchase U.S. wines, they are making a very conscious decision to do so. This conclusion is bolstered by the fact that Europe strictly controls GI usage, so European customers have specific information about the geographic origin of available products. Changing the names of American wines sold in Europe is therefore unlikely to disrupt the market, because a European consumer purchasing American “sparkling wine” already knows they are purchasing an American product rather than a French champagne. 

2. Restricting usage of GIs to improve consumer knowledge

Far from disadvantaging consumers, restriction of GI usage will give consumers more information about the products in which they are interested. This benefit is both economic, in that greater information decreases consumers’ search costs,191 and cultural. Under the UNESCO Convention, CP’s “true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.”192 Only by restricting usage of place names to products that are actually from the region in question can GIs be given their full educational value as CP.

Under the current system, American consumers who purchase products labeled with geographic terms considered generic in the U.S. lack information as to the true geographic origin of that product. As one scholar wrote, GIs could “be said to promote free trade by facilitating full information, towards perfect market conditions.”193 More restricted usage of GIs would “give[] consumers confidence in the true origin of a product, which has added value and specific qualities due to its geographical origin.”194 Wine drinkers are generally motivated to learn about the wine they purchase because they think it will enhance their appreciation of it and because they want to appear cultured and sophisticated.195 GIs will be more informative for such consumers if their use is restricted. 

C. Recommendations

Although GIs meet the international legal definitions of CP, this Comment does not argue that GIs should be formally integrated into CP protection schemes at this time. Rather, governments and producers involved in the GI debate should note the aspects of CP protection regimes highlighted above and deploy those features to make progress in the GI dispute. These aspects provide moral reasons for both the U.S. and EU to recognize additional GIs. In addition, there are economic reasons why it is in the long-term interest of U.S. producers to do so. These rationales work in tandem to underpin the recommendations of this Comment.

From a legal standpoint, there are two large practical issues at stake in the GI standoff: which GIs are to be protected and how they are to be protected. This Comment recommends that the parties focus on the first issue since the second implicates fundamental differences between the legal systems of the U.S. and EU that will be quite difficult to harmonize. Indeed, CP regimes teach that protection mechanisms need not be harmonized and can be left to national discretion. 

This Comment recommends that the U.S. should commit to protecting more of the GIs that are currently claimed by the EU in return for European recognition of more AVAs. Such protection would recognize that GIs are the cultural property of the producers that use them and that these concessions make economic sense when considering the long-term interests of American wine exporters. Second, discussions about the moral-legal justifications for expanding GI protection should recognize that GIs are a tool not only for large and established companies but for small and nascent producers; GIs allow the latter to commodify their TK for use in exported products. There is recent international momentum behind this premise. Third, increased GI recognition should be instituted within the existing U.S.-EU bilateral framework. Fourth, part of this bilateral relationship should be a notice register that provides a structure for future negotiations over recognition. 

1. Balanced American recognition of additional European GIs

In light of European producers’ property rights in their GIs, and because American producers are unlikely to suffer a great deal of economic disruption from the loss of European geographic terms, American authorities should agree to recognize additional European GIs in exchange for European recognition of a certain number of AVAs. This move would continue the spirit of the successful 2006 Agreement, in which U.S. authorities restricted the usage of sixteen “semi-generic” European terms in return for European protection for designated AVAs in the EU.196  

The trend toward greater GI recognition should be balanced by the understanding that not every GI on both sides of the debate should be recognized. In 2023, the EU maintained protection for 5,376 GIs (across all product categories, not just wines and spirits) while the U.S. protected only 763.197 Some scholars have argued that this European “proliferation of GIs” has “contributed to consumer confusion by eroding the consumer culture of geographical discrimination,”198 which simply means that protecting every minute sub-area of geographical significance dilutes the overall significance of GIs. The goal of increased GI recognition would be to achieve workable regulation of GIs “while at the same time finding a way to keep GIs meaningful.”199

Negotiation toward recognition of more GIs could proceed in a phased bilateral manner. Each side could propose a certain number of GIs for protection and in turn decide how much that protection would be worth in terms of the recognition it would have to give to corresponding foreign GIs. The main stumbling block to this kind of progress is American reluctance to recognize additional European designations. Reading the principles of CP protection into European requests for recognition would help break this deadlock.

2. Link international GI debate to campaign to protect traditional knowledge

Expansion of GI protection should capitalize on recent international enthusiasm for the protection of TK under an IP regime. GIs proposed for recognition in the U.S.-EU forum should thus not be only those that would benefit established producers but those that would allow small producers to commodify their terroir as it pertains to wines and spirits. In a forum where established economic interests are at loggerheads over IP rights, it would be useful to attempt to hook the GI debate onto the protection of TK. 

The Treaty on TK is currently limited to patent applications, but later iterations of this concept may include GI applications as the world recognizes the contributions that indigenous populations make to commerce and agriculture. Granted, neither the U.S. nor the EU have yet signed the Treaty on TK, but its adoption signals to industrialized countries the importance of information, expertise, and resources originating in smaller nations with smaller producers. 

3. Engagement should continue on a bilateral basis

The U.S. has, for political, economic, and diplomatic reasons, withdrawn from multilateral engagement through the WTO, WIPO, and other fora as to GIs. The most recent progress the U.S. has made in this area was the 2006 Agreement with the EU. EU producers acquired some protection of semi-generic names and U.S. winemakers felt that their concerns were “partly addressed” by the Agreement.200 It makes sense that further attempts at progress in the trade war should follow the bilateral model, at least initially. Bilateral in this instance refers to interactions between the U.S. and EU rather than between the U.S. and individual European countries, since the EU protects GIs under a common legal scheme that cuts across national borders. 

International CP protection regimes model how international goals of stopping illicit CP trafficking can be accomplished via bilateral agreements. The UNESCO Convention calls on signatories to develop bilateral CP arrangements that depend on national legal frameworks to punish and deter theft and misappropriation. The bilateral approach is especially practical when national legal standards are at wide variance, as with GIs. “[T]here is virtually no international consensus on the appropriate framework of protection for GIs” and “under the TRIPS Agreement . . . AOCs and definitions for many related [GI] concepts still remain the responsibility of individual member countries.”201  

Hand in hand with the bilateral engagement model is reliance on national law as the arbiter of GI protection and disputes, at least in the short term. Just as the Hague Convention directs states parties to prosecute CP thieves under domestic laws, the presumption under a bilateral engagement framework would be that each party would protect GIs under national legal instruments. International harmonization of legal protections for GIs would be a long-term goal.

Past American withdrawal from multilateral fora makes it unlikely that U.S. officials will engage in international mechanisms of GI dispute resolution in the foreseeable future. Such mechanisms exist both through the WTO’s TRIPS process202 and the WIPO’s Arbitration and Mediation mechanisms.203 However, following the 2005 failure of the WTO dispute resolution mechanism to resolve longstanding differences between the U.S. and EU,204 U.S. authorities have charged WTO appellate bodies with “blatant disregard for [WTO] procedural and institutional rules.”205 The WIPO process is for private parties and has no policy-setting power at the national or international level. The U.S. is also not a party to the latest WIPO treaties governing GIs. Because of these issues, bilateral negotiation with the EU is a practical first step for the U.S. that might eventually result in wider involvement in international IP fora.

4. Bilateral register of GIs, trademarks, certification marks, and collective marks

Though the U.S. has been reluctant to sign on to a multilateral register of GIs,206 it makes sense for the U.S. and EU to initiate and maintain a bilateral register of GIs applicable to wines and spirits. This register would cover all GIs, trademarks, certification marks, and collective marks registered in both countries and would save producers and governments time and resources by alerting all parties to potential conflicts between identical or similar GIs registered in both jurisdictions. “Notice would allow [other parties] to take appropriate steps in reaction to the registration, including denying contemporaneous trademark-registration applications for the [registered] geographical-indication term.”207 This would assist parties in avoiding disputes and would thereby decrease the risk of litigation.208 At the very least, the register would provide transparency: “With a common register, the rules are clear.”209

Inclusion of a term in the bilateral register by one party need not obligate the other party to take any action. It could function initially as a notice register, similarly to the registers of CP under the Hague and UNESCO Conventions. Later on, the register could come to include a process by which new terms would “benefit from a presumption of protection in both systems.”210 Some policymakers have proposed that this register “should come with an opposition procedure, allowing economic actors and name users to assert the generic character of certain denominations” or to object on grounds of absence of protection of a term in the country of origin or misleading usage.211 This opposition procedure “could be the counterweight required to obtain the U.S.’s cooperation.”212

D. Potential Challenge of this Approach

The recommendations of this Comment are intended to be feasible. Several practical challenges to its recommendations have been addressed in the preceding sections, but one theoretical argument merits rebuttal here.

Some scholars dispute the proposition that protecting GIs accomplishes the object of protecting traditional cultural production methods and ways of life. One scholar has characterized GIs as “an international legal mechanism with trade restrictive effects, widely believed to have a positive effect on preserving cultural diversity . . . which in practice, simply does no such thing.”213 This scholar’s evidence is anecdotal case studies in which market forces shaped the course of trade in spite of GI protections.214 It is unsurprising that, in some cases, GI protection has been overwhelmed by market pressures.

However, one need not look any further than studies of consumer behavior for evidence that legal protection of GIs creates pronounced cultural effects that have real economic power. The fact that the EU protects so many GIs so stringently has shaped consumer behavior across Europe such that region of origin is the most important consideration for European consumers buying wine.215 By contrast, Americans look primarily to recommendations from others, price, and brand when purchasing wine because area of origin is not an important attribute in the U.S. system of trademark regulation.216  

Also, the fact that European advocacy of greater GI recognition has continued over many decades belies the conclusion that GI protection does not support traditional producers and their production methods. If GIs were not beneficial, the EU would have abandoned them decades ago. Furthermore, for every case study purportedly showing that GIs do not promote cultural diversity, there is another that shows GIs protect “rural development and the protection of indigenous peoples’ knowledge,” even in developed Europe.217

VI. Conclusion

The international debate over the legal protection of geographical indications is nowhere more acrimonious than in the U.S.-EU wine and spirit trade war. Both parties to this conflict are of great economic importance to each other, but the production interests of the EU are opposed to the consumer interests of the U.S., and the legal regimes of the disputing parties are so different that they seem unable to make progress toward a resolution. In addition, the trade war serves as a striking example of how a government-driven IP regime can clash with a market-driven one. Current scholarship and recommendations as to how to break the deadlock are derived from politics and economics and generally advocate for either the U.S. or EU position. 

In order to provide a new perspective on the longstanding conflict, this Comment turns to the field of cultural property law. CP is an area in which arguments of morality serve as the primary justification for legal protection. GIs, with their elements of place, culture, history, and expertise, can be legally classified as CP, and this Comment borrows from the legal regimes protecting CP to point the way forward in the GI debate. The conventions of CP law emphasize producers’ moral rights to exclusive possession and use of their property. In the GI context, these considerations translate to American protection of more European GIs in return for European recognition of American ones. This measure is bolstered by a complementary economic argument that increased GI recognition will result in greater commercial success for American producers and more information for consumers. In addition, treaties mandating the protection of CP provide for notice registers, a concept that would benefit both parties to the wine and spirit trade war. CP treaties also rely on bilateral legal arrangements and respect for national laws among member states, a practical starting point for ongoing negotiations between the U.S. and EU. Finally, recent advances in the protection of CP on the international stage provide a promising mold in which to recast the GI debate in terms that bridge the gap between cultural and intellectual property, two fields that are more closely related than traditional legal doctrine suggests.

• 1U.S. Agency for Int’l. Dev., International Approaches to the Protection of Geographical Indications (2009).
• 2Cong. Rsch. Serv., R44556, Geographical Indications (GIs) in U.S. Food and Agricultural Trade, 1 (2017).
• 3Stephen M. Jurca, What’s in a Name?: Geographical Indicators, Legal Protection, and the Vulnerability of Zinfandel, 20 Ind. J. of Global Legal Studies 1445, 1456–57 (2013).
• 4European Comm’n, Study on econ. value of EU quality schemes, geographical indications and traditional specialties guaranteed, https://perma.cc/7SQ7-JH6C (2019).
• 5For instance, EU regulations do not permit the sale of cheese labeled “asiago” unless that cheese originated in the Asiago region of Italy, whereas U.S. regulations allow the usage of the term “asiago” on any cheese as a general indicator of its type or style.
• 6Matthew Barakat, What’s in a name? Judge pokes holes in Swiss cheesemakers’ “gruyere” claims, Associated Press, https://perma.cc/9WWJ-JV4N (last visited Oct. 12, 2024).
• 7Interprofession du Gruyere; Syndicat Interprefessionel du Gruyere v. U.S. Dairy Export Council, 61 F.4th 407, 412 (4th Cir. 2023).
• 8Id. 
• 9Id. at 412–13.
• 10Eur. Parliamentary Rsch. Serv., PE 751.399, The EU Wine Sector 4 (2023), https://perma.cc/H9GP-2M2E (last visited Oct. 12, 2024).
• 11EU Spirits Exports 2023, SpiritsEurope, https://perma.cc/3CT6-7Q9Y (last visited Oct. 12, 2024).
• 12U.S. Dep’t Agric. Foreign Agric. Serv., U.S. Wine & Related Products Exports in 2023, https://perma.cc/K6SJ-PN7Q (last visited Oct. 12, 2024).
• 13U.S. Dep’t Agric. Foreign Agric. Serv., U.S. Distilled Spirits Exports in 2023, https://perma.cc/A8UQ-AVCZ (last visited Oct. 12, 2024).
• 14Erich Hatala Matthes, The Ethics of Cultural Heritage, in Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., 2024), https://perma.cc/PJ3S-8NYC (last visited Oct. 12, 2024).
• 15Cultural heritage is internationally protected but is often looted or destroyed during times of armed conflict. Important items often make their way to museums, and there is an ongoing debate over when and how to repatriate them. Cultural heritage and CP are sometimes used interchangeably, but CP is the broader category.
• 16Whose Culture? The Curation and Management of World Heritage, Harv. U. Dep’t of Hist. of Art and Architecture, https://perma.cc/V6QT-XEJ6 (last visited Oct. 12, 2024).
• 17See infra Section ‎III.B.2.
• 18See infra Section ‎III.B.3.
• 19World Intellectual Prop. Org. (WIPO), Traditional Knowledge, https://perma.cc/D29E-3ZPQ (last visited Oct. 12, 2024).
• 20WIPO, Traditional Cultural Expressions, https://perma.cc/R4JC-RACH (last visited Oct. 12, 2024).
• 21Emily C. Creditt, Terroir v. Trademarks: The Debate over Geographical Indications and Expansions to the TRIPS Agreement, 11 Vand. J. Ent. & Tech. L. 425, 427 (2009).
• 22See infra, Sections ‎III.B.3, ‎V.B.
• 23WIPO, WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, https://perma.cc/Q6ZQ-FVFB (last visited Oct. 12, 2024).
• 24Cong. Rsch. Serv., supra note 2.
• 25Bernard O’Connor, The Law of Geographic Indications 69 (2004).
• 26Kal Raustiala & Stephen R. Munzer, The Global Struggle over Geographic Indications, 18 Eur. J. of Int’l L. 337, 359–60 (2007).
• 27Id. at 354–55.
• 28Id. at 359.
• 29Id.
• 30Raustiala & Munzer, supra note 26, at 358; Note, Recovering Personality in Copyright’s Originality Inquiry, 138 Harv. L. Rev. 1123, 1130 (2025).
• 31Directorate-General for Agriculture and Rural Development, Geographical indications and quality schemes explained, European Commission, https://perma.cc/JZ5W-H8MG (last visited Oct. 13, 2024).
• 32Id.
• 33Id.
• 34Id.
• 35Cong. Rsch. Serv., supra note 2, at 6–7.
• 36Case C-783/19 Comité Interprofessionnel du Vin de Champagne v. GB, 2021 E.C.R. ¶ 16.
• 37Id. ˆ¶¶ 1–2.
• 38Id. ˆ¶¶ 60–66.
• 39Chloe J. Marie, An Overview of the Protections for Geographical Indications in the United States and the European Union, Penn. State Law Ctr. for Agric. and Shale L., Pub. No. RP22-001, 5–6, https://perma.cc/F5SE-BARZ (last visited Oct. 13, 2024).
• 40Cong. Rsch. Serv, supra note 2, at 11.
• 41Id. at 14.
• 42Jurca, supra note 3, at 1450.
• 43Id.
• 44Id.
• 45Id. at 1449.
• 46Id. at 1449–50.
• 47Cong. Rsch. Serv., supra note 2, at 14.
• 48Alcohol and Tobacco Tax and Trade Bureau, Established American Viticultural Areas, https://perma.cc/4ZQS-N4ZF (last visited Oct. 13, 2024).
• 49Bureau Nat'l Interprofessionnel du Cognac v. Cologne & Cognac Ent., 110 F.4th 1356, 1362–72, 1374 (Fed. Cir. 2024).
• 50Id. at 1363, 1373–74.
• 51Id. at 1374.
• 52See infra Section ‎V.C.3.
• 53Creditt, supra note 21, at 432.
• 54Id.
• 55WIPO, WIPO-Administered Treaties, Contracting Parties – Paris Convention, https://perma.cc/HK6A-NFEZ (last visited Oct. 13, 2024).
• 56Creditt, supra note 21, at 434–35.
• 57Id.
• 58WIPO, WIPO-Administered Treaties, Contracting parties – Lisbon Agreement, https://perma.cc/2PJJ-EYMT (last visited Oct. 13, 2024).
• 59WIPO, IP Treaties Collection–Contracting Parties/Signatories–Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), https://perma.cc/235H-N2KY (last visited Oct. 13, 2024).
• 60Marie, supra note 39, at 2.
• 61Id.
• 62Creditt, supra note 21, at 436–37.
• 63Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 33 I.L.M. 1197, Art. 23(1).
• 64Tomer Broude, Taking ‘Trade and Culture’ Seriously: Geographical Indications and Cultural Protection in WTO Law, 26 U. Pa. J. Int’l Econ. L. 623, 649 (2005).
• 65Agreement on Trade-Related Aspects of Intellectual Property Rights, supra note 63, art. 24(6) (“Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member.”).
• 66Cong. Rsch. Serv., supra note 2, at 3.
• 67Id. at 2.
• 68Michael Handler, The WTO Geographical Indications Dispute, 69 Mod. L. Rev. 70, 70 (2006).
• 69Id. at 72.
• 70Id. at 73–74.
• 71Id. at 77–79.
• 72Marie, supra note 39, at 3; Creditt, supra note 21, at 439. The EU favors an international register as a step towards establishing a standard of GI protection applicable across countries while the U.S. wishes to keep its GI protections national through the trademark system.
• 73Peter Van den Bossche, The Trips Agreement and WTO Dispute Settlement: Past, Present, and Future (World Trade Inst, Working Paper, Paper No. 02/2020), https://perma.cc/4JES-2LPM (last visited Nov. 7, 2024).
• 74Handler, supra note 68 at 71, 80.
• 75Cong. Rsch. Serv., R43658, The U.S. Wine Industry and Selected Trade Issues with the European Union 8 (2016).
• 76Id.
• 77Id. at 9.
• 78Id.
• 79WIPO, Main Provisions and Benefits of the Geneva Act of the Lisbon Agreement (2015), https://perma.cc/6TRJ-G9DK (last visited Oct. 13, 2024).
• 80Marie, supra note 39, at 4–5.
• 81Id. “Genericide,” the process by which a brand name or mark becomes so well known that it comes to denote a class of products rather than a product by a particular producer, results in the loss of legal protection for that term.
• 82Id.
• 83Eur. Parliamentary Rsch. Serv., supra note 10, at 1.
• 84Id. at 2.
• 85Creditt, supra note 21, at 437.
• 86Id.
• 87Id. at 447.
• 88Id.
• 89John Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J. of Int’l L. 831 (1986).
• 90Janna Thompson, Cultural Property, Restitution and Value, 20 J. of Applied Phil. 251, 252 (2003).
• 91See Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L. J. 1022, 1032 (2009) (stating “Traditionally, cultural property referred to tangible resources bearing a distinct relationship to a particular cultural heritage or identity.”); J. Janewa Osei-Tutu, Cultural IP vs. Commercial IP, 37 GPSolo Magazine 74 (2020) (characterizing “cultural IP” as “intergenerational literary and artistic works, or words and symbols that are not protectable under classic IP law.’); Christa Roodt, Restitution of art and cultural objects and its limits, 46 The Compar. and Int’l L. J. of S. Afr. 286, 287 (2013) (stating “[A] cultural object . . . may embody archaeological, ethnological or historical information about the creative process, and about the identity of the group responsible for its production.”).
• 92Roodt, supra note 91, at 287.
• 93Thompson, supra note 90, at 253.
• 94See infra Section ‎B.3.
• 95Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights, 4 Austl. Indigenous L. Rep. 115, 116 (1999).
• 96William J. Hapiuk, Jr., Of Kitsch and Kachnas: A Critical Analysis of the Indian Arts and Crafts Act of 1990, 54 Stanford L. Rev. 1009, 1014 (2001). As a form of CP, EU GI designations require craftspeople to use traditional methods to make their products, and GIs are often credited with sustaining the rural lifestyles that are necessary to use those methods. See Dwijen Rangnekar, The Socio-Economics of Geographical Indications: A Review of Empirical Evidence from Europe, United Nations Conference on Trade and Development-International Centre for Trade and Sustainable Development Project on Intellectual Property Rights and Sustainable Development, Issue Paper No. 8, at 16–17 https://perma.cc/W9P6-4DJP (last visited Nov. 17, 2024).
• 97Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention), May 14, 1954, 249 U.N.T.S. 240, art 1.
• 98Id. arts. 13–14.
• 99Id. art. 28.
• 100UNESCO, Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, States Parties, https://perma.cc/99SY-X6X8 (last visited Jan. 10, 2025).
• 101UNESCO, About the 1970 Convention, https://perma.cc/VP2A-AXCB (last visited Oct. 13, 2024).
• 102Kelly Elizabeth Yasaitis, National Ownership Laws as Cultural Property Protection Policy: The Emerging Trend in United States v. Schultz, 12 Int’l J. of Cultural Prop. 95, 99 (2005).
• 103UNESCO, supra note 101.
• 104Id.
• 105The U.S. Dep’t of State, Cultural Property Agreements, https://perma.cc/K764-TLTB (last visited Oct. 13, 2024).
• 106UNESCO, supra note 101.
• 107See, e.g., Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012); U.S. v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 597 F.Supp.2d 618 (E.D. Va. 2009); U.S. v. An Original Manuscript Dated November 19, 1778, 1999 WL 97894 (S.D.N.Y. 1999).
• 108Carpenter et al., supra note 91.
• 109Hapiuk, supra note 96, at 1010; 25 C.F.R. § 309.2(a) (“Indian . . .means a person who is a member of an Indian tribe or . . .is certified by an Indian tribe as a non-member Indian artisan”); 25 C.F.R. § 309.26 (“A person who offers or displays for sale or sells a good . . .in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe . . .(a) is subject to the criminal penalties specified . . .and (b) is subject to the civil penalties specified”).
• 110Hapiuk, supra note 96, at 1010.
• 111Id. at 1104–05.
• 112Native Am. Arts, Inc. v. Peter Stone Co., 2015 WL 3561439, at *1, *5 (N.D. Ill., 2015).
• 113Brendan Johnson & Seth Nielsen, The Indian Arts and Crafts Act – A Powerful Tool, Law360 (June 30, 2015),  https://perma.cc/8SBP-6857.
• 114Native Am. Arts, supra note 112, at *2.
• 115Native Am. Arts, Inc. v. J.C. Penney Co., Inc., 5 F.Supp.2d 599, 600 (N.D. Ill., 1998).
• 116Native Am. Arts, supra note 112, at *5.
• 117Carpenter et al, supra note 91, at 1058–62.
• 118WIPO, Signatures of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, https://perma.cc/P4AZ-MCD6 (last visited Oct. 13, 2024).
• 119WIPO, supra note 23.
• 120Id.
• 121U.S. Gov’t Accountability Off., GAO-11-432, Indian Arts and Crafts: Size of Market and Extent of Misrepresentation are Unknown (2011).
• 122Raustiala & Munzer, supra note 26, at 365.
• 123Id.
• 124Danielle Dudding, The Lisbon Agreement: Why the United States Should Stop Fighting the Geneva Act, 18 Vand. J. Ent. & Tech. L. 167, 184 (2015); Jurca, supra note 3, at 1470–71.
• 125Milo G. Coerper, Intellectual Property Law: Certification Marks as a Means of Protecting Wine Appellations in the United States, 15 GP, Solo & Small Firm Lawyer 42 (1998).
• 126Raustiala & Munzer, supra note 26, at 365.
• 127K. William Watson, Reign of Terroir, Cato Institute Policy Analysis no. 787 1 (Feb. 16, 2016) https://perma.cc/A6MP-XLVG (last visited Nov. 12, 2024).
• 128See generally Jurca, supra note 3; Creditt, supra note 21; Alexandre Arnaud, Rethinking the 2006 Agreement on Wine Trade: Protection of Producers and Consumers Through Greater Recognition of Geographical Indications in the U.S., 12 J. Intellectual Prop. & Ent. L. 273 (2023).
• 129See generally Jurca, supra note 3.
• 130Andrea Zappalaglio, The law of geographical indications at the centre of the European green deal, 18 J. Intellectual Prop. L. & Prac. 557 (2023).
• 131Felix Addor & Alexandra Grazioli, Geographical Indications beyond Wines and Spirits: A Roadmap for Better Protection for Geographical Indications in the WTO/TRIPS Agreement, 5 J. World Intellectual Prop. 865 (2002).
• 132Arnaud, supra note 128, at 277.
• 133Graham Dutfield, Summary,Intellectual Property Tools for Products Based on Biocultural Heritage: A Legal Review of Geographical Indications, Trademarks, and Protection from Unfair Competition, Int’l Inst. for Env. & Dev. (2011) https://perma.cc/3AA2-75KV (last visited Oct. 13, 2024).
• 134Carpenter et al., supra note 91.
• 135Osei-Tutu, supra note 91.
• 136Carpenter et al., supra note 91, at 1100.
• 137See, e.g., Taste-Power-Tradition: Geographical Indications as Cultural Property (Sarah May, Katia Laura Sidali, Achim Spiller & Bernhard Tschofen eds., 2017).
• 138Hague Convention, supra note 97, art. 1.
• 139Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention), Nov. 14, 1970, 96 Stat. 2350, 823 U.N. art. 1.
• 14025 C.F.R. § 309.2(a).
• 14125 C.F.R. § 309.2(d)(1).
• 14225 C.F.R. § 308.2(a).
• 143Native American Arts v. The Waldron Corp., 399 F.3d 871, 873–74 (7th Cir. 2005).
• 14425 C.F.R. § 309.2(a), (d)(1).
• 14525 C.F.R. § 309.2(d)(1).)
• 146UNESCO Convention, supra note 139, art. 2.
• 147W. M. Landes & R. A. Posner, The Economic Structure of Intellectual Property Law, 167–68 (2003).
• 148Id. at 166.
• 149Broude, supra note 64, at 647.
• 150Landes & Posner, supra note 147, at 201.
• 15115 U.S.C. § 1117(a).
• 15225 C.F.R. § 308.2(a).
• 153Jon Keith Parsley, Regulation of Counterfeit Indian Arts and Crafts: An Analysis of the Indian Crafts Act of 1990, 18 Am. Indian L. Rev. 487, 491 (1993).
• 154Carpenter et al., supra note 91, at 1104.
• 155WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, May 24, 2024, GRATK/DC/7.
• 156Carpenter et al., supra note 91, at 1099.
• 157O’Connor, supra note 157, at 404.
• 158Id.
• 159Dutfield, supra note 133, at 37.
• 160Id. at summary.
• 161Landes & Posner, supra note 147, at 184–86.
• 162Hague Convention, supra note 97, art. 3.
• 163Id. art. 4(1).
• 164Id. art. 4(3).
• 165Id. art. 28.
• 166UNESCO Convention, supra note 139, art. 5.
• 167Id. art. 8.
• 168Id. art. 13.
• 169Id. art. 15.
• 170U.S. Dep’t of State, supra note 105.
• 171Id.
• 172Hague Convention, supra note 97, art. 8(6).
• 173Id., Regulations for the Execution of the Hague Convention art. 13.
• 174UNESCO Convention, supra note 139, art. 5.
• 175Id. art. 13.
• 176See generally Watson, supra note 176.
• 177Id. at 2.
• 178Id. at 1.
• 179Creditt, supra note 21, at 448.
• 180Cong. Rsch. Serv., supra note 75, at 8.
• 181Watson, supra note 127, at 8.
• 182See generally Jurca, supra note 3.
• 183Napa Name Protection, Napa Valley Vintners, https://perma.cc/8RRG-FPBM (last visited Nov. 12, 2024).
• 184History, Wine Origins Alliance, https://perma.cc/8EKX-C4LH, (last visited Nov. 12, 2024).
• 185Joint Declaration to Protect Wine Place & Origin, Wine Origins Alliance, https://perma.cc/2TC8-6QS4 (last visited Nov. 12, 2024).
• 186Watson, supra note 127, at 12.
• 187Liz Thach, New Survey Reveals How Consumers Select Wine: Taste Trumps Price, Forbes (Sept. 6, 2023), https://perma.cc/34M7-RGZA.
• 188Sarah Neish, Price is most important factor in wine choice, say U.S. drinkers, The Drinks Business (Apr. 15, 2024), https://perma.cc/Y2XC-MPFH.
• 189Raffaele Zanchini et al, How European consumers value wine credence attributes: a cross-country comparison of France, Greece and Italy, Wine and Policy Economics 10, https://perma.cc/MB2Z-TXYM (last visited Nov. 12, 2024).
• 190Thach, supra note 187.
• 191Landes & Posner, supra note 147, at 168.
• 192UNESCO Convention, supra note 139, preamble.
• 193Broude, supra note 64, at 647.
• 194O’Connor, supra note 25, at 404.
• 195Kathryn A. LaTour et al., Developing Wine Appreciation for New Generations of Consumers, 62 Cornell Hospitality Q. 337, 339 (2021).
• 196Cong. Rsch. Serv., supra note 75, at 8.
• 197WIPO, World Intellectual Property Indicators 2024, https://perma.cc/79CJ-SPRW 163 (last visited Nov. 16, 2024).
• 198Broude, supra note 64. at 675–76.
• 199Molly Torsen, Apples and Oranges: French and American Models of Geographic Indications Policies Demonstrate an International Lack of Consensus, 95 The Trademark Rep. 1415, 1435 (2005).
• 200Cong. Rsch. Serv., supra note 2, at 18.
• 201Torsen, supra note 199, at 1437–38.
• 202WTO, Disputes concerning the TRIPS Agreement, https://perma.cc/AD8P-6HJH (last visited Nov. 7, 2024).
• 203WIPO, Alternative Dispute Resolution, https://perma.cc/3KDQ-XVH8 (last visited Nov. 7, 2024).
• 204See supra Section ‎II.D.2.
• 205Van den Bossche, supra note 73.
• 206Dudding, supra note 124, at 183.
• 207Creditt, supra note 21, at 452.
• 208Arnaud, supra note 128, at 289.
• 209Id.
• 210Id.
• 211Id.
• 212Id.
• 213Broude, supra note 64, at 679.
• 214Id. at 662–78.
• 215See Zanchini et al., supra note 189; Thach, supra note 187.
• 216See Thach, supra note 187; Neish, supra note 188.
• 217Rangnekar, supra note 96, at 34.