Trade Law

The purpose of this article is to reassert the primacy of each state’s territorial jurisdiction as a fundamental basis for resolving international IP disputes. It identifies the principle that I have elsewhere termed the “territorial independence of IP laws” as specially relevant to the problems of parallel imports and cross-border IP infringement, and it explains how the proper application of the territorial independence principle resolves IP disputes in a manner that avoids running afoul of international law, maintains the integrity of basic U.S. principles of statutory construction, and remains consistent with the various federal statutes protecting IP rights. The territorial independence principle arises from the basic doctrine of international law that states have primary prescriptive jurisdiction with regard to their own territories, and this has important implications for how IP laws should be interpreted in multinational IP disputes.

Geographical indications (GIs) designating wines, spirits, and agricultural products have been the subject of a trade war between the U.S. and EU for several decades. The American legal regime often denies European producers exclusive rights to use GIs in the American market because U.S. authorities consider many European terms generic. As a result, EU regulators are reluctant to protect American designations of origin in the European market. Little progress has been made toward reaching a consensus about which terms should be protected and how they should be protected in transatlantic trade.

Economics has been the dominant lens through which the U.S.-EU conflict has been viewed, and commercial considerations have driven the parties to the current stalemate. This Comment proposes to break the impasse by suggesting that GIs should be understood in a new legal context: as a form of cultural property (CP). GIs are CP by definition and analogy, and several principles in national and international CP regimes have implications for the GI debate: producers of CP have a right to exclusive possession and use of their property, CP protection increases cultural strength, and bilateral arrangements in conjunction with national legal regimes can accomplish international goals of CP protection.

The principles in this Comment apply generally to all types of agricultural products marketed using geographically specific terms, but the piece will use the wine sector as a central example. To that end, this Comment makes the following recommendations for achieving progress in resolving the trade dispute: 1) for moral and economic reasons, 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; 3) engagement between the U.S. and EU on the subject of GIs should continue on a bilateral basis; and 4) part of that bilateral interaction should be a notice register of U.S. and EU GIs. 

I. Introduction

I. Introduction