Government cheese was the byproduct of an agricultural subsidy born of the Great Depression.¹ Committed to maintaining the U.S. dairy industry, the U.S. government began buying the industry’s excess butter and cheese and storing these reserves in caves in rural Missouri.² By the early 1980s, the stockpiles comprised hundreds of millions of pounds of cheese and butterfat.³ Storage of the stockpile had become increasingly expensive, and the butter and cheese threatened to spoil.⁴ To avoid this waste, in 1981, Reagan decided to distribute neon orange hunks of American “processed” cheese,⁵ dubbed “government cheese,” to low-income Americans through the Temporary Emergency Food Assistance Program.⁶ While government cheese was phased out by the 1990s as the dairy market stabilized, the legacy of government cheese, long immortalized in song,⁷ lives on as a symbol of American innovation and industrialization of the food industry. America saw a problem—excess dairy—and turned it into a “food product” to feed its people.

The European Union had a similar stockpile problem in the 1990s–2000s. Against the backdrop of postwar food shortages and rationing, the Common Agricultural Policy (CAP) was formed in 1962 to increase food security and support traditional agriculture.⁸ As a result of the CAP system’s broad subsidies of “fruits of the vine,” France, Italy, and Spain had a collective “wine lake” totaling more than 1.5 billion liters.⁹ In 2006, drastic measures were made to drain the lake by converting table wines into industrial alcohol and biofuel at a cost to EU taxpayers of 131 million euros.¹⁰ This “crisis distillation” measure was the largest conversion of Europe’s beloved vin de table and began a viticulture shake-up resulting in the digging up of roughly 10 percent of European vineyard lands.¹¹

Against the backdrop of dueling food cultures, the United States, with its industrialized government cheese, and the European Union, with its centuries-old Grana Padano, have tried, to no avail, to conclude the Transatlantic Trade and Investment Partnership (TTIP). At the crux of this clash are new and old world food civilizations and geographical indications (GIs).

At minimum, GIs denote the territory, region, or locality from which a good originates where a given quality, reputation, or other characteristic of the good is closely linked to its geographical origin.¹² Similarly, an appellation of origin (AO) is a type of higher-level GI where the quality or characteristics of the goods must be essentially determined by the natural or human factors of the geographical area, such as the soil composition and the traditional modes of production.¹³

This article provides an overview of past multilateral trade instruments on GIs, compares European and U.S. regimes of protections for GIs, and points to potential paths to TTIP compromise.

Multilateral Treatment of Geographical Indications

Paris Convention

The Paris Convention for the Protection of Industrial Property of 1883, one of the first multilateral treaties on intellectual property, is administered by the World Intellectual Property Organization (WIPO) and has 36 member states, including several European countries and the United States. Notably, the Paris Convention made a passing tacit reference to GIs by noting that “indications of source” and “appellations of origin” must be protected as areas of intellectual property, but did not lay out the scope and mode of protection.¹⁴ The Paris Convention further mandated that member states confiscate goods that present a “direct or indirect use of a false indication of the source of the goods.”¹⁵

Madrid Agreement

The 1891 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, with members comprised of the Paris Convention signatories, picks up where the Paris Convention left off. The Madrid Agreement is the first multilateral agreement to enumerate the circumstances for seizure of products marketed under indications that deceive the public as to the source of the goods. Thus, the Madrid Agreement added protection against “deceptive” indications of source as opposed to mere protection for “false” indications.¹⁶

Notably, under Article 4 of the Madrid Agreement, each country can decide which appellations may be generic, with the exception of wine appellations.¹⁷

Inter-American Convention

The 1929 General Inter-American Convention for Trade Mark and Commercial Protection, between the United States and nine of its Latin American trading partners, was the first multilateral treaty to address GIs by name and to institute specific unfair competition enforcement provisions. The treaty mandates: “Every indication of geographical origin or source which does not actually correspond to the place in which the article, product or merchandise was fabricated, manufactured, produced or harvested, shall be considered fraudulent and illegal, and therefore prohibited.”¹⁸

Under the Inter-American Convention, both direct and indirect usage of a GI can constitute a prohibited use of the GI if the “geographical name serves as a basis for or is the dominant element of the sentences, words or expressions used” on the goods themselves or their packaging.¹⁹

Protection for generic geographical place names is excluded unless these indications are “regional indications of origin of industrial or agricultural products the quality and reputation of which to the consuming public depend on the place of production or origin.”²⁰ That is, protection of generic place names is expressly allowed where the quality of the product depends on its place of production.²¹

As to unfair competition, in the absence of “special remedies,” the contracting state’s “domestic sanitary laws, laws dealing with misbranding and the laws relating to trade marks or trade names, shall be applicable.”²² Accordingly, the United States pledged to make a variety of different federal protections to the GIs of its cosignatories and trading partners.

Stresa Convention

The 1951 Stresa International Convention on the Use of Appellations of Origin and Denominations of Cheeses, between France, Italy, the Netherlands, and Switzerland, was the first international treaty on cheese names.²³ The signatories “committed themselves to prohibiting the use of false designations of origin on their territory.”²⁴

Cheeses considered to have AOs (Gorgonzola, Parmigiano Reggiano, Pecorino Romano, and Roquefort) were accorded higher protection and could only be produced in the specific place of origin, regardless of “whether they are used alone or accompanied by a qualifying or even corrective term such as ‘type,’ ‘kind,’ ‘imitation’ or other term.”²⁵ Other cheeses, like Camembert, Danablu, Edam, and Emmenthal, were deemed quasi-generic and could be produced under certain production criteria, e.g., fat content.²⁶

The Stresa Convention was supplanted by later EU regulations on GIs but set out a differentiation between distinctive and quasi-generic GIs, which is carried forward in the European Union’s past and present negotiating position that foodstuff names that are generic in the country of origin can be freely produced outside the country of origin, but terms not generic in the country of origin should be liberally extended and maintained in other member states.

Lisbon Agreement

The 1958 Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration originally covered AOs, but was expanded in 2015 (against fierce objection by the United States, a nonsignatory) to include all GIs.²⁷ The Lisbon Agreement does not allow for genericide of a protected GI. Once an AO or GI is registered, fellow Lisbon members must protect it in their countries.²⁸

TRIPS Agreement

The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the largest multilateral instrument that deals with GIs. Its signatories are committed to minimum standards of protection for GIs by agreeing to protect GIs for foodstuffs through existing trademark regimes or, alternatively, through sui generis protection regimes.²⁹ Specifically, Article 22 expressly mandates that members make available legal means to prevent the use of a GI that indicates or suggests that a good originates in a geographical area other than the true place of origin or in a manner misleading the public as to the geographical origin.³⁰ In other words, permissible GI use under TRIPS can include when the GI is used as part of a compound phrase that identifies the true origin of the goods, like “Wisconsin Roquefort” or “Prosciutto Parma-style.”

Article 23 grants wine and spirit GIs a higher level of protection under TRIPS.³¹ Subject to a number of exceptions, wines and spirits have to be protected even if misuse would not cause the public to be misled, and use of expressions such as “like,” “kind,” or “style” are not permitted.³²

Wine Trade Agreement

As a corollary to TRIPS, in 2006, the Agreement between the European Community and the United States of America on Trade in Wine (Wine Trade Agreement) prohibited the use of 17 of what the United States previously considered to be semi-generic wine names on new U.S. labels, while grandfathering such use for pre-2006 trademarked labels.³³ New labels for any of the 17 semi-generic names, such as Champagne, are no longer approved by the Alcohol and Tobacco Tax and Trade Bureau (TTB), which enforces labeling requirements for alcoholic beverages in the United States.³⁴

European Regimes of Protection

The European Union recognizes three types of GIs for foodstuffs and wines: protected designations of origin (PDOs), protected geographical indications (PGIs), and traditional specialties guaranteed (TSGs).³⁵ The PDO/PGI/TSG protection regime affords a higher level of protection, essentially a “TRIPS Plus.”

A PDO is a designation where a product must be produced and processed within the defined geographical area, exhibiting qualities or characteristics essentially due to that area, roughly akin to the definition of an AO.³⁶ A PGI is a designation where a product must be produced and/or processed in the geographical area, exhibiting merely a specific quality, reputation, or other characteristics attributable to that area.³⁷ A TSG is a designation for a traditional mode of production, not necessarily a geographical area.³⁸ For example, PIZZA NAPOLETANA has been a registered TSG since 2010. The pizza need not be made in Naples, but its ingredients and mode of production are strictly regulated.³⁹ About 1,100 agricultural and foodstuff GIs, some 1,600 wine PDOs/PGIs, and 400 GIs have been registered in the EU.⁴⁰

PDOs, PGIs, and TSGs exist in parallel to domestic protected designations in individual EU member states. For example, France’s appellation d’origine contrôlée or Italy’s denominazione d’origine protetta for foodstuffs and wine are both considered PDOs, and France’s vin de pays or Italy’s indicazione geografica tipica are also PGIs.

United States GI Protection Regimes

The United States currently provides no sui generis protection for GIs. Instead, foreign GIs are protected through the federal trademark system.⁴¹ Specifically, rights holders can register GIs as trademarks, certification marks, or collective marks.⁴² Rights holders can also enforce unregistered GIs at the United States Patent and Trademark Office (USPTO) by opposing or canceling a mark likely to cause confusion.⁴³

The owner of a certification mark does not produce goods; instead, the owner of the certification mark controls the use of its mark by others as it informs consumers that the goods possess certain characteristics.⁴⁴ For example, U.S. Registration No. 571,798 for ROQUEFORT certifies that all cheese sold under the mark is sheep’s milk cured in the French caves of Roquefort by traditional means.⁴⁵ A collective trademark or collective service mark is a mark used by a “collective” for its members to identify their goods or services.⁴⁶ As with certification marks, the collective itself does not use the mark on goods or services; rather, the collective promotes the goods or services of its members.⁴⁷

To the chagrin of old world rights holders, the USPTO does not grant protection for indications that it believes have become generic terms. If, in the USPTO’s or federal courts’ opinion, a geographical designation has become generic in the United States, the rights holder is unable to enforce it in the United States and any domestic producer is free to use the indication.⁴⁸

The United States has its own domestic GIs, from VIDALIA onions⁴⁹ to IDAHO potatoes,⁵⁰ typically controlled via state agricultural boards and protected as U.S. certification or collective trademarks. In addition, U.S. domestic trademarks can be protected under state trademark regimes, for example, “State of Vermont Pure Maple Syrup” is a registered state trademark.⁵¹

In addition to trademark protection regimes, GI owners in the United States are able to benefit from consumer protection regulations controlled by a variety of state and federal agencies. For example, the United States Department of Agriculture (USDA) controls marketing orders for fruits, vegetables, and crops.⁵² Marketing orders are a binding regulation for a given industry in a specified geographical area. Noncompliance with the marketing order, including misidentifying the source of the goods, can result in a USDA enforcement action. The TTB administers the American Viticultural Area (AVA) program. An AVA is defined as “a delimited grape-growing region” distinguishable by geographical features, the boundaries of which have been recognized and defined by the TTB.⁵³ AVA wines must contain a minimum of 85 percent grapes from the specified region.⁵⁴ The U.S. Immigration and Customs Enforcement and Homeland Security Investigations (ICE/HSI) will take action against counterfeit foodstuffs misrepresenting the geographical origins of products. At the state level, state regulations may protect local GIs. For example, Napa Valley Vintners (NVV), a California AVA, lobbied state officials to pass a restriction that NAPA-formative wine names must be made from a minimum of 75 percent Napa County grapes if they are produced or offered for sale in California.⁵⁵

The emerging “foodie culture” has led to an increased interest in loco-specific fare, including exploring the importance of terroir.⁵⁶ Looking in part to capitalize on this trend, the USDA has developed the Value-Added Producer Grant (VAPG) program, a competitive grant program that funds farmers and groups of farmers to actualize value-added products, including, “Being aggregated and marketed as a locally-produced food (e.g., as part of a Buy Local campaign, state-produced branding or labeling effort).”⁵⁷ The USDA has also expressly funded studies to explore the concept of the effect of terroir on agricultural products, including the Vermont maple syrup sector and the Michigan plum and apple industries.⁵⁸

Navigating the TTIP

With this background in mind, let’s return to the TTIP. Negotiations opened in early 2013. Eleven rounds later, no agreement is in sight or likely under the Obama administration.⁵⁹ One of the major stumbling blocks in concluding the TTIP is the protection of GIs.⁶⁰ The European Union seeks expanded protection in the United States, including a “claw-back” provision for marks that the United States views as generic, similar to those available for wine and spirits in the Wine Trade Agreement.⁶¹

As a result, the European Union is concentrating on securing strong bilateral and multilateral agreements that contain the desired claw-back provision⁶² and expanding the scope of existing agreements, such as the Lisbon Agreement.⁶³ In response, the United States has waged an offensive against the European Union’s efforts on GIs by inserting in its bilateral and multilateral agreements clauses obliging signatories not to grant GI protection to common food names and securing priority for existing trademarks.

The European Union has also sought increased protection through other U.S. consumer protection regimes, notably the inclusion of geographical criteria within the “standards of identity” enforced by the Food and Drug Administration (FDA).⁶⁴ That is, the FDA regulates foodstuffs to the extent that a product name is inconsistent with what it purports to be.⁶⁵ Similarly, the European Union has proposed increased marketing claims enforcement through the Federal Trade Commission (FTC). For example, the FTC, which polices the use of “Made in USA” and similar marketing claims, requires all products with such a label be “all or virtually all” made in the United States.⁶⁶

From the European Union’s perspective, stricter consumer protection laws for GIs serve the dual purpose of protecting its producers and providing U.S. consumers with informed purchasing power.⁶⁷ Further, FDA or other federal regulations are clearly “remedies provided by [U.S.] domestic sanitary laws” or “laws dealing with misbranding” with which the United States is already charged to provide to its Inter-American Convention treaty partners.⁶⁸ Nonetheless, the United States has rejected proposals by the European Union to use FDA regulations as backdoor routes to sui generis protection.

Conclusion

Short of inviting U.S. trade negotiators to mangiare⁶⁹ in butter-rich Bologna, and experience the acidic wonders of nearby Modena in persona,⁷⁰ a trade agreement is hard to conceptualize wherein the United States will agree to create a sui generis system for the protection of GIs. The idea of terroir in cuisine is still too “Old Country” of a concept for the United States, and the U.S. dairy and food industries hold great sway in government policymaking.

One potential path forward is to return to the root of why this matters: empowering the consumer to know the source, method of production, and contents of the food and beverages prior to purchasing in an “ethical marketplace.” One tool in creating this ethical marketplace for European producers and American consumers could be the United States’ committing to different federal protections as with the Inter-American Convention. This could be accomplished by FDA enforcement of “standards of identity” for food item labeling that misrepresents its true nature. Likewise, the FTC could be further empowered to enforce false designations or deceptive marketing tactics such as use of the Italian flag, map, or map colorizations, similar to the FTC’s enforcement of “Made in USA” advertising. Through enforcement of “standards of identity” by the FDA and FTC, consumers would be able to decide for themselves whether to buy Wisconsin Gouda or Holland Gouda.

Another potential path forward is following the approach utilized by the European Union and Canada in their recently concluded, but not yet implemented, Canada­-EU Comprehensive Economic and Trade Agreement (CETA).⁷¹ In CETA, instead of the European Union’s full claw-back list, the agreement provides protection for a host of the European Union’s GIs, but places restrictions on what Canada deems to be generic cheese names, namely asiago, feta, fontina, gorgonzola, and muenster.⁷² CETA will allow usage of these terms “when the use of such terms is accompanied by expressions such as ‘kind,’ ‘type,’ ‘style,’ ‘imitation’ or the like and is in combination with a legible and visible indication of the geographical origin of the product concerned.”⁷³ Prior users of these “clawed-back” terms are grandfathered in, if certain criteria are met.⁷⁴

This approach provides clarity for prior users of GI-formative terms, permits truth in marketing for the benefit of competition and consumers, and has clear precedence in both the TRIPS treatment of wine and spirit names and in the Wine Trademark Agreement regulating “semi-generic” wine names.

As Speaker of the House of Representatives Paul Ryan declared, wedge of cheese in hand, “For generations, we’ve been making gouda in Wisconsin . . . [a]nd for generations to come, we’re going to keep making gouda in Wisconsin. And feta, and cheddar, and everything else.”⁷⁵ As such, Brussels must accept the hard truth, as it did in CETA, that some GIs cannot be clawed back from genericism in the U.S. marketplace. The United States should similarly accept the hard truth that European producers, domestic GI holders, and, indeed, U.S. consumers are entitled to transparent and honest marketing and labeling.

Indeed, creating an ethical marketplace for clearly labeled “value-added” goods, like GIs, supports both producers and informed consumerism. In this reimagined stream of commerce, cheese makers and fromagers would be compensated for the quality of their product, and buyers could give informed consent to purchase a higher quality product at a premium or a lower quality item at a discount by making an individualized cost-benefit analysis.

Endnotes

1. Michael Moss, While Warning about Fat, U.S. Pushes Cheese Sales, N.Y. Times, Nov. 7, 2010, at A1; Donald Marron, Euthanized Cows and Caves Full of Cheese: The Government Policies Behind “Got Milk?,” Christian Sci. Monitor (Nov. 8, 2010), http://www.csmonitor.com/Business/Donald-Marron/2010/1108/Euthanized-cows-and-caves-full-of-cheese-the-government-policies-behind-Got-Milk.

2. Moss, supra note 1.

3. Id.

4. Id. Reagan also instituted a program of buying cattle herds, and even paying dairy farmers to euthanize cows to lessen the dairy supply in 1986. Robert A. Hamilton, U.S. Offers Dairymen a Buyout, N.Y. Times, Mar. 23, 1986, http://www.nytimes.com/1986/03/23/nyregion/us-offers-dairymen-a-buyout.html; Robert M. Press, US Marshals Its Forces to Stave Off Hunger in the Land of Plenty, Christian Sci. Monitor (Aug. 18, 1983), http://www.csmonitor.com/1983/0818/081843.html.

5. James L. Kraft of Illinois patented a manufacturing process in 1921 that allowed for mass production of his famous orange cheese “product.” U.S. Patent No. 1,374,141 (filed Sept. 24, 1919). Containing a mixture of colby and cheddar with curds and emulsifiers, the Kraft Company’s almost-cheese was popularized in the early twentieth century. Zey Ustunol, Processed Cheese: What Is This Stuff Anyway?, Mich. Dairy Rev., Apr. 2009, at 16.

6. Ronald Reagan, Statement about Distribution of the Cheese Inventory of the Commodity Credit Corporation, Am. Presidency Project (Dec. 22, 1981),  The government cheese was delivered from the federal government to each state, where it was sent to various warehouses and community centers for free pickup.

7. Jay Z, F.U.T.W., on Magna Carta Holy Grail (Rock Nation/Universal 2013) (“After that government cheese, we eating steak. / After the projects, now we on estates. / I’m from the bottom, I know y’all can relate.”); Keb’ Mo’, Government Cheese, on Live and Mo’ (Yolabelle Int’l 2009) (“Well, it’s late in the evening and I’m on my knees. / It’s late in the evening and I’m on my knees. / Yes I’m all so grateful for my government cheese.”); The Rainmakers, Government Cheese, on The Rainmakers (Mercury Records 1986) (“They’ll turn us all into beggars ’cause they’re easier to please. / They’re feeding our people that Government Cheese.”).

8. Louise Gray, Q&A on the Common Agricultural Policy, Telegraph, Oct. 6, 2011, http://www.telegraph.co.uk/news/earth/agriculture/8808721/QandA-on-the-Common-Agricultural-Policy.html; Dylan Kraslow, Common Agricultural Policy Reform in the EU, Pol. & Pol’y (Oct. 11, 2013)

9. Alex Duval Smith, Mon Dieu! It’s Whisky from Champagne, Guardian, July 8, 2006, http://www.theguardian.com/world/2006/jul/09/france.alexduvalsmith; Svetlana Kovalyova, Italy’s 2011 Wine Harvest Smallest in 60 Years, Reuters (Oct. 18, 2011), http://in.reuters.com/article/idINIndia-59968020111018.

10. Sam Jones, Commission Pulls Plug on EU Wine Lake, Guardian, June 7, 2006, https://www.theguardian.com/world/2006/jun/08/france.eu.

11. Stephen Castle, A Tide of Wine May Drive European Growers from a Way of Life, N.Y. Times, Aug. 4, 2007, at C3; Henry Samuel, French Wine Growers in Crisis, Telegraph, July 5, 2007, http://www.telegraph.co.uk/news/worldnews/1556568/French-wine-growers-in-crisis.html; Bruce Crumley, France’s Wine Terrorists, Time (Aug. 1, 2008), http://content.time.com/time/world/article/0,8599,1828722,00.html.

12. See Geographical Indications, World Intell. Prop. Org., http://www.wipo.int/geo_indications/en/ (last visited July 25, 2016).

13. Famous Appellations of Origin, WIPO Mag., Dec. 2008, at 21, available at http://www.wipo.int/wipo_magazine/en/2008/06/article_0009.html.

14. Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 21 U.S.T. 1583, 828 U.N.T.S. 305 (last amended Sept. 28, 1979). Article 1(2) of the Paris Convention notes: “The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition” (emphasis added).

15. Id. at art. 10(1).

16. Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods art. 1(1), Apr. 14, 1891, 828 U.N.T.S. 389 [hereinafter Madrid Agreement]; see Christine Haight Farley, The Protection of Geographical Indications in the Inter-American Convention on Trademarks, 6 WIPO J. 68, 69 (2014).

17. Madrid Agreement, supra note 16, at art. 4; Haight Farley, supra note 16, at 70.

18. General Inter-American Convention for Trade Mark and Commercial Protection art. 23, Feb. 20, 1929, 46 Stat. 2907, 2918, 124 L.N.T.S. 357 [hereinafter Inter-American Convention]; Haight Farley, supra note 16, at 74.

19. Inter-American Convention, supra note 18, at art. 24; Haight Farley, supra note 16, at 74.

20. Inter-American Convention, supra note 18, at art. 27; Haight Farley, supra note 16, at 75.

21. Haight Farley, supra note 16, at 75.

22. Inter-American Convention, supra note 18, at art. 28.

23. Stresa International Convention on the Use of Appellations of Origin and Denominations of Cheeses, June 1, 1951, Journal Officiel de la République Française [J.O.] [Official Gazette of France], June 11, 1952, p. 5821.

24. Id. at art. 3 & Annex A.

25. Id.

26. Id. at art. 4.2 & Annex B.

27. Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration art. 2, Oct. 31, 1958, 923 U.N.T.S. 205 (last amended Sept. 28, 1979) [hereinafter Lisbon Agreement]; Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications art. 2(1), WIPO Doc. LI/DC/19 (adopted May 20, 2015) [hereinafter Geneva Act]. In the Lisbon Agreement as amended by the Geneva Act, AOs are defined as “the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.” In contrast, GIs do not require that the quality or characteristic of a product is exclusively or essentially related to the environment—rather it sufficient that “a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”

28. Geneva Act, supra note 27, at art. 12.

29. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).

30. Id. at art. 22.

31. Id. at art. 23.

32. Id.

33. Agreement between the European Community and the United States of America on Trade in Wine, U.S.-E.C., 2006 O.J. (L 87/2); 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 14:19 (4th ed. 2007) (discussing legislative changes that will prohibit new uses of semi-generic names on non-European wines).

34. 2 McCarthy, supra note 33, § 14:19.

35. Council Regulation 1151/2012, 2012 O.J. (L 343) (EU).

36. Daniele Giovannucci et al., Int’l Trade Ctr., Guide to Geographical Indications 60 (2009),

37. Id.

38. To qualify for a TSG, a food must be of “specific character” and either its raw materials, production method, or processing must be “traditional.” Council Regulation 509/2006, art. 6, 2006 O.J. (L 93) (EC). Under Article 3 of Regulation 1151/12, “specific character” is defined as “the characteristic production attributes which distinguish a product clearly from other similar products of the same category”; “traditional” is defined as “proven usage on the domestic market for a period that allows transmission between generations; this period is to be at least 30 years.” For a food name to be registrable under the TSG scheme, it must (1) have been traditionally used to refer to the specific product, or (2) identify the traditional or specific character of the product.

39. Commission Regulation 97/2010, Entering a Name in the Register of Traditional Specialities Guaranteed [Pizza Napoletana (TSG)], 2010 O.J. (L 34).

40. Tanguy Chever et al., AND-Int’l, Value of Production of Agricultural Products and Foodstuffs, Wines, Aromatised Wines and Spirits Protected by a Geographical Indication (GI) (2012), available at http://ec.europa.eu/agriculture/external-studies/value-gi_en.htm (a European Commission external study); Alan Matthews, Geographical Indications (GIs) in the US-EU TTIP Negotiations, CAP Reform.eu (June 19, 2014), http://capreform.eu/geographical-indications-gis-in-the-us-eu-ttip-negotiations/.

41. Lanham Act, 15 U.S.C. § 1054 (providing for the registration of certification and collective marks including indications of regional origin); see Bernard O’Connor, The European Union and the United States: Conflicting Agendas on Geographical Indications—What’s Happening in Asia?, 9 Global Trade & Customs J. 66, 66 (2014).

42. 15 U.S.C. § 1054; Geographical Indication Protection in the United States, U.S. Pat. & Trademark Off., 1–2, http://www.uspto.gov/sites/default/files/web/offices/dcom/olia/globalip/pdf/gi_system.pdf (last visited July 25, 2016).

43. Geographical Indication Protection in the United States, supra note 42, at 1.

44. Id. at 2–3.

45. Id. at 3.

46. Id. at 4–5.

47. Id.

48. Although a prohibition on generic marks does not explicitly appear in Lanham Act § 2 (15 U.S.C. § 1052), it is implied as a § 2 requirement when read in tandem with Subchapter I (15 U.S.C. §§ 1051–1072) and with § 14 (15 U.S.C. §1064), which provides for the cancellation of registered marks that have become generic. See, e.g., In re Cooperativa Produttori Latte e Fontina Valle D’Acosta, 230 U.S.P.Q. 131 (T.T.A.B. 1986) (holding FONTINA to be a generic name of a type of cheese rather than a certification mark indicating regional origin, in view of the fact that noncertified producers outside that region use the term to identify noncertified cheeses); cf. Institut National des Appellations d’Origine v. Brown-Forman Corp., 47 U.S.P.Q.2d 1875, 1884 (T.T.A.B. 1998) (holding “Cognac” to be a nongeneric certification mark, as U.S. consumers would understand the “Cognac” designation to refer to brandy exclusively from the Cognac region of France, and because opposers maintained quality control of the designation).

49. E.g., VIDALIA, Registration No. 1,709,019 (certification mark owned by the Georgia Department of Agriculture).

50. E.g., IDAHO, Registration No. 2,914,308 (certification mark owned by State of Idaho Potato Commission).

51. Vt. Stat. Ann. tit. 6, § 486.

52. 7 U.S.C. §§ 671–674; Marketing Orders and Agreements, USDA, http://www.ams.usda.gov/rules-regulations/moa (last visited July 25, 2016).

53. 27 C.F.R. § 4.25(e)(1).

54. Id. § 4.25(e)(3).

55. Cal. Bus. & Prof. Code § 25241.

56. Jane Black, The Geography of Flavor, Wash. Post, Aug. 22, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/08/21/AR2007082100362.html; Kristen Hartke, The Key Fact Americans Are Finally Starting to Understand about Cheese, Wash. Post, June 30, 2015, https://www.washingtonpost.com/lifestyle/food/the-key-fact-americans-are-finally-starting-to-understand-about-cheese/2015/06/29/d98c3dc2-1921-11e5-93b7-5eddc056ad8a_story.html; Dave McIntyre, Does the Vineyard’s Dirt Really Affect the Taste of What’s in Your Glass?, Wash. Post, Jan. 16, 2016, https://www.washingtonpost.com/lifestyle/food/does-the-vineyards-dirt-really-affect-the-taste-of-whats-in-your-glass/2016/01/15/c451aa5a-ba6b-11e5-829c-26ffb874a18d_story.html.

57. Value-Added Producer Grants, Nat’l Sustainable Agric. Coalition, http://sustainableagriculture.net/publications/grassrootsguide/local-food-systems-rural-development/value-added-producer-grants/ (last updated Feb. 2016).

58. Jane Black, Fresh from Vermont’s Maples, a Taste of Terroir, N.Y. Times, Dec. 20, 2006, http://www.nytimes.com/2006/12/20/dining/20mapl.html?_r=0; Warren Cornwall, Far from the Tree, Slate (May 15, 2013), http://www.slate.com/articles/life/food/2013/05/maple_syrup_terroir_vermont_s_efforts_to_make_the_pancake_condiment_more.html; see Know Your Farmer, Know Your Food Compass Map, USDA,

59. Paul Kane & David Nakamura, McConnell Warns That Trade Deal Can’t Pass Congress Before 2016 Elections, Wash. Post, Dec. 10, 2015, https://www.washingtonpost.com/politics/mcconnell-warns-that-trade-deal-cant-pass-congress-before-2016-elections/2015/12/10/b8151f26-9f66-11e5-8728-1af6af208198_story.html (noting that Senate Majority Leader Mitch McConnell said he would be surprised if any major trade initiative could be accomplished before 2017, including the concluded Trans-Pacific Partnership); Quentin Ariès & Hans von der Burchard, TTIP Negotiations Not Even Half Done, Politico (Sept. 30, 2015), http://www.politico.eu/article/ttip-negotiations-not-even-half-done/.

60. K. William Watson, Geographical Indications in TTIP: An Impossible Task, Cato Inst. (Oct. 2015), http://www.cato.org/publications/cato-online-forum/geographical-indications-ttip-impossible-task.

61. Adam Behsudi, U.S. to Europe: Don’t Move My Cheese, Politico (July 21, 2015), http://www.politico.com/story/2015/07/us-to-europe-dont-move-my-cheese-120387.

62. Comprehensive Economic and Trade Agreement (CETA), Can.-EU, art. 7.4 & Annex I pt. A, negotiations complete Aug. 2014 [hereinafter CETA Agreement],  (noting that Neufchâtel, Taleggio, and Pecorino Romano must be protected as GIs in Canada); Geographical Indications, Eur. Commission on Trade, http://ec.europa.eu/trade/policy/accessing-markets/intellectual-property/geographical-indications/ (last visited July 25, 2016).

63. Geneva Act, supra note 27, at art. 2(1).

64. Commission Note for the Attention of the Trade Policy Committee: E.U.-U.S. Transatlantic Trade and Investment Partnership (TTIP). Line to Take on Geographical Indications (GIs) (Feb. 23, 2015) [hereinafter European Commission Note], available at https://www.documentcloud.org/documents/2162242-15-02-23-dg-agri-uber-gi-geschwarzt.html (leaked European Trade Commission memo on GIs in TTIP negotiations).

65. 21 U.S.C. § 343 (providing reasons for which food is deemed mislabeled, including if advertising is false or misleading in a material respect).

66. Enforcement Policy Statement on U.S. Origin Claims, 62 Fed. Reg. 63,756 (Dec. 2, 1997).

67. European Commission Note, supra note 64.

68. See Inter-American Convention, supra note 18, at art. 28.

69. Mangiare, Italian for “to eat.” A pertinent proverb for GIs, “Mangiare senza bere è come il tuono senza pioggia” (eating without drinking is like thunder without rain).

70. Modena is home of prized “Aceto Balsamico Tradizionale di Modena DOP[, which] is known and appreciated all over the world and was granted DOC protection in 1986 (L.93 del 03/04/86) and DOP recognition on 17/04/2000 by the European Community.” Aceto Balsamico Tradizionale di Modena DOP, Acetaia La Bonissima, http://www.acetaialabonissima.it/eng/aceto-balsamico-modena-dop-storia.aspx (last visited July 25, 2016).

71. See generally CETA Agreement, supra note 62.

72. Id. at art. 7.4 & Annex I pt. A; Geographical Indications, supra note 62.

73. CETA Agreement, supra note 62, at art. 7.6(1).

74. Id. at art. 7.6(2).

75. Behsudi, supra note 61.