Page1

European Intellectual Property Review

2009

The intellectual properties of geography

Dwijen Rangnekar
Subject: Intellectual property. Other related subjects: International law
Keywords: Geographical indications; Intellectual property; International law

*E.I.P.R. 537 Introduction

Geographical indications (GIs) are a relatively recent entrant into the growing pantheon of global
intellectual property rights (IPRs), though its antecedents can be traced to other intellectual property
(IP) instruments, like Indications of Source and Appellations of Origin, and conventions and customs,
like guilds-organising traders. In contrast to other areas of IP, GIs at the World Trade Organisation
(WTO) are different. To begin with, they entertain an entirely different constellation of interests with
demandeurs for stronger protection emerging from the Global South. Moreover, we also witness
intra-Quad disagreement. All this makes for reticence in the Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement, as it raises only an obligation for legal means for protection
without prescriptions on the means, thus, the proliferation of various legal means to protect GIs. Does
this suggest otherwise about the entry of GIs into the IP-pantheon? Are GIs any less of IP? An
immediate answer would point to GIs inclusion as a category of IP in TRIPS (art.1.2).1 In an Opinion
in this journal, Stephen Stern2 suggests otherwise calling GIs a form of IP, and dealing with GIs in IP
treaties, does not make GIs a form of IP. Using his article as a point of reference and departure, I call
for a critical GI scholarship that also recognises the idiosyncratic features of its logic and construction.
Let me begin by narrating Stern's thesis. Finding no definition for IP in various multilateral IP treaties,
which only lists instruments of IP, Stern settles on the common denominator of involvement of
intellectual input3 as the litmus test for IP. With respect to GIs, he sees no intellectual process
involved, nothing is conceived and no originality or creation involved.4 For that matter, he is also
dismissive of the names of GIs The geographical name inevitably pre-existed the product that
subsequently became known by that name..5 He advises against falling for the seduction of labelling
GIs as IPRs6 and that while having propertylike characteristics, are not in fact property as they
cannot be sold or licensed.
Like Stern, I am puzzled by the absence of any definition of IP in the multilateral treaties and the
resort to a sleight of hand in listing instruments. A first step towards a definition is to follow
philosophers who advise delineating between intellectual objects which constitute the subject matter
of ownership and ownership which is effected through institutions (copyright, patents, trade marks
and customs and conventions).7 Meanings ascribed to these terms are historically contingent and
reflective of our normative considerations about what things ought to be.8 These differences are
further explicated by adopting a Hohfeld-Honor bundle of rights metaphor which sees property as
a complex aggregate of rights (or claims), privileges, powers and immunities9 ; thus, taking us to an
idea of regimes of property and thereby defeating any suggestion of a singular notion of property.
There are nuances to this idea of regimes of property. For instance, consider the popular
representation of commons by economists, the peasant may use the open commons as pasture for
his sheep; he may not prevent others from doing the same.10 This construction suggests a regime
where no one has the right to exclude others (i.e. res nullius ); however, this representation of the
commons miserably fails to capture the spectrum of reality which also includes regimes, such as
common pool resources that are collectively managed *E.I.P.R. 538 by members of a group
through shared contracts, social custom and convention.11
In focusing on the intellectual object of GIs, the suggestion would be to part ways with the
philosophers and instead join company with anthropologists, geographers and cultural theorists. For
instance, Ploeg uses the expression of art de la localit to capture the cultural stabilisation of
particular practices:
[E]very location acquired, maintained and enlargened its own cultural repertoire: its own norms
and criteria that together established the local notion of good farming.12

Electronic copy available at: http://ssrn.com/abstract=1568188

Page2

In a study on carpets, Brian Spooner tells us how closely related peoples come to work with closely
resembling designs and that this merging of identities of peoples and motifs is preferably appreciated
in genealogical and tribal terms.13 Societies curate their surroundings and actively engage in the
creative generation of their habitat and the various artefacts that co-constitute their surroundings. This
localised specialisation is apparent in a number of products and is seen to increase at lower levels of
aggregation: for example, despite widespread distribution (internationally and within nations) of the
species Vitis vinifera, the major production areas are highly localised with each grape variety
acquiring its own distinctive geographic pattern.14 These distinctive geographic patterns aren't
illusionary as quality characteristics are associated with habitat and local practices. An examination of
Basmati varieties that included traditional cultivars from India and Pakistan and the varieties bred by
RiceTec, an American seed company making dubious claims of Basmati-like properties, found that
the latter failed to exhibit either the genetic structure of Basmati or the full range of agronomic
attributes.15 In this vein, GIs are the juridical reification of these localised specialisations and norms
of good farming.
No doubt, appreciation of this creativity and recognition of this localised specialisation is culturally
mediated. Reckoning with the subjectivities of cultures remains problematic, hence the continuing
intra-Quad disagreement on GIs. For that matter, popular narratives on GIs are adequate testimony to
culturally situated readings of GIs. But, are the standards of GIs really all that bad? Here, I find
resonance with copyright and its requirements for originality. Consider the increasing proliferation of
works and the ease with which certain types of works, in particular compilation of data and lists, can
now be produced. In Feist Publications Inc v Rural Telephone Service Co Inc, it was stated that:
originality is not a stringent standard; it does not require that facts be presented in an innovative or
surprising way. It is equally true, however, that the selection and arrangement of facts cannot be
mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it
does exist.16
A similar logic could be discerned in the functioning of GI laws where standards exist even if some
may consider them to be low. Of relevance is genericity as a defence against the inclusion of
particular subject matter as a property right. Consider the fact that West Country Farmhouse
Cheddar is a Protected Designation of Origin while the term cheddar remains a generic term and
available for and used by a retinue of cheese-makers.
It is with Stern's dismissal of the nature of the property right in GI where my proposed reading of GI
has further significance. There should be little disagreement that GIs are not private property in a
sense similar to other IPRs: they cannot be bought, sold, or transferred.17 Even in jurisdictions with a
sui generis legislation, the scope of protection does not include the right to assign an indication--a
right that exists for trade marks (art.20) and patents (art.28.2) within the TRIPS Agreement. Quite
simply, transferring and/or licensing a GI defeats the fundamental premise of a GI which requires the
product to originate in a particular geography. Consider the predicament confronting Newcastle
Brown Ale when closing its landmark Tyne brewery after more than 100 years of operation to move
elsewhere. Recognising that this move to another site meant that the specification is not any longer
respected in relation to the delimited geographical area originally stipulated that it surrendered their
*E.I.P.R. 539 protected GI.18 How do we understand these predicaments--particularly in today's
transglobal world of time-space compression and infinite mobility? Here, recall that the subject matter
of GIs are predicated on establishing locational specificity; thus, the law responds by constructing
locational immobility into the rights in GIs. This, I suggest, is a structural logic of GIs which results in
the obvious absence of a right to license.
But, GIs are not empty of rights as they are endowed with a right to exclude. This right to exclude has
been asserted on numerous occasions in a variety of jurisdictions across a range of different GIs. It
matters little if the legal means to assert this right emerges out of laws on business practice or
consumer protection or through institutions of sui generis systems or trade mark systems. Consider
case law at the European Court of Justice that concerned the grating of Grana Padano cheese19 and
the slicing and packing of Parma ham.20 While these procedures occur closer to the retail end they
are stipulated in the specifications submitted for registration under Regulation 510/2006.21 The Court
had to decide whether they constitute an exclusive right that is also directly enforceable. In both
instances, the Court agreed that the rules are an exclusive right that is also enforceable. More
specifically, it concluded that specifications:
determines both the extent of the obligations to be complied with for the purposes of using the
PDO [i.e. Protected Designation of Origin] and, as a corollary, the extent of the right protected against

Electronic copy available at: http://ssrn.com/abstract=1568188

Page3

third parties by the effect of registration of the PDO.22

This clarifies that GIs are endowed with a right to exclude, and, as some would argue, establishes the
foundation for the edifice of property to preside upon:
the power to exclude certain competitors, just as any residential tenant holds the right of quiet
enjoyment even if she is barred from subletting or assigning her lease. The power to exclude is the
power of property.23
What is possibly more fascinating, and less noted, in the literature on GIs is the inherent duality
between obligation and prohibition; thus, establishing the basis for club-like rights. The specifications
themselves, as explained earlier, are the juridical reification of the norms of good farming. For those
who adhere to the norms, the right to use the GI exists, whereas those not abiding by these norms
are prohibited from using the GI. It is in this duality that GIs become a club, so to speak. And, by
extension, less of a private property right and more like what Carol Rose in a different context termed
limited common property as property held as commons amongst the member of a group, but
exclusively vis--vis the outside world.24
GIs do speak of certain traditions of invention and that these traditions themselves constitute a
compelling normative justification for recognition and right. In appreciating and acknowledging these
traditions of inventions, lets us not idealise them entirely. There will be, in some of these GIs, invented
traditions.
Dwijen Rangnekar is a Research Councils UK Academic Fellow and Assistant Professor of Law jointly
at the School of Law and the Centre for the Study of Globalisation and Regionalisation, Warwick
University, UK. He is currently researching Geographical Indications (GIs) under an Economic and
Social Research Council-funded project (RES-061-23-0119), details can be found at
http://www.warwick.ac.uk/go/feni [Accessed August 17, 2009]. He is also writing a monograph on
plant breeders' rights.
E.I.P.R. 2009, 31(11), 537-539

1.

Amy P. Cotton, 123 years at the negotiating table and still no dessert? The case in support of TRIPS geographical indication protections
(2007) 82 Chicago-Kent Law Review 1295, 1309 adopts this as part of a larger argument on the intellectual property (IP) status of GIs.

2.

Stephen Stern, Are GIs IP? [2007] 29 E.I.P.R. 39; although with no reference to Amy Cotton's work.

3.

Stern, Are GIs IP? [2007] 29 E.I.P.R. 39.

4.

Stern, Are GIs IP? [2007] 29 E.I.P.R. 39, 40.

5.

Stern, Are GIs IP? [2007] 29 E.I.P.R. 39, 39-40. This short article is not the place to do any justice to the complicated relationship
between things and names. Suffice to say that there are numerous examples of potential and actual GIs where the name is entirely
creative--and only confining myself to India, I identify the following: Basmati (for rice), Pashmina (for shawls) and Aranmula Kannadi (for
mirrors).

6.

Stern, Are GIs IP? [2007] 29 E.I.P.R. 39, 41.

7.

E. Hettinger, Justifying Intellectual Property (1989) 18 Philosophy and Public Affairs 31.

8.

C.B. Macpherson, Property: Mainstream and Critical positions (Blackwell and University of Toronto Press, 1978); see especially
Macpherson's Introduction.

9.

This approach can be and has been criticised for adopting a narrow legal matrix and also for glossing over the wider context of obligation
and responsibility with respect to rights, see M.A. Heller, The tragedy of the anticommons: Property in the transition from Marx to
markets (1998) 111 Harvard Law Review 621.

10.

J.M. Bchanan and Y.J. Yoon, Symmetric tragedies: Commons and anticommons (2000) 43 Journal of Law & Economics 1, 3.

11.

Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990).

12.

J.D. Van der Ploeg, The Reconstitution of Locality: Technology and Labour in Modern Agriculture in Terry K. Marsden et al. (eds),
Labour and Locality: Uneven Development and the Rural Labour Process (D. Fulton Publishers, 1992).

13.

Brian Spooner, Weavers and Dealers: The Authenticity of an Oriental Carpet in Arjun Appadurai (ed.), The Social Life of Things:
Commodities in Cultural Perspective (Cambridge University Press, 1986).

14.

W. Moran, Rural Space as Intellectual Property (1993) 12 Political Geography 263.

15.

P. Bhattacharjee et al., Basmati rice: a review (2002) 37 International Journal of Food Science and Technology 1; and S. Kamath et al.,
Basmati rice: its characteristics and identification (2008) 88 Journal of the Science of Food and Agriculture 1821.

16.

Feist Publications Inc v Rural Telephone Service Co Inc 449 U.S. 340 (1991) at 53. This approach was restated in very similar terms in
Tele-Direct (Publications) Inc v American Business Information Inc (1997) 76 C.P.R. (3d) 296.

17.

To an extent, comparing intellectual objects in terms of either their standards of protection or the rights granted therein is a facile and
futile debate, particularly if it is driven by using one or the other as a standard.

Page4

18.

Regulation 952/2007 cancelling a registration of a name in the Register of protected designations of origin and protected geographical
indications (Newcastle Brown Ale (PGI)) [2007] OJ L210/26.

19.

Ravil Sarl v Bellon Import Sarl (C-469/00) [2003] E.C.R. I-5053.

20.

Consorzio del Prosciutto di Parma v Asda Stores Ltd (C-108/01) [2003] E.C.R. I-5121 at [33].

21.

Council Regulation 510/2006 on the protection of geographical indications and designations of origin for agricultural products and
foodstuffs, [2006] OJ L93/12.

22.

Ravil Sarl v Bellon Import Sarl [2003] E.C.R. I-5053 at [80].

23.

Jim Chen, A sober second look at appellations of origin: how the United States will crash France's wine and cheese party (1996) 5
Minnesota Journal of Global Trade 29, 39.

24.

C.M. Rose, The several futures of property: Of cyberspace and folk tales, emission trades and ecosystems (1998) 83 Minnesota Law
Review 129, 132.
2009 Sweet & Maxwell and its Contributors