YOU SAY TOMATO, I SAY CREOLE: The Case For Louisiana To Valorize Its Geographical Indications By Following A European Approach

YOU SAY TOMATO, I SAY CREOLE: The Case For Louisiana To Valorize Its Geographical Indications By Following A European Approach

By Suzaan Laing

  1. INTRODUCTION

Economic advantages to GIs

Louisiana has a population of 4,681,666 people[1].  Regrettably, it finds itself at 47th on the USA’s list of richest to poorest states[2].  The three most important industries in Louisiana are agriculture, the petrochemical industry and tourism[3]. The state has 29 093 farms which produce agricultural commodities on over 8 million acres of farmland.[4] The economic impact of agriculture in Louisiana is $3.8 billion per year.[5]  Commercial fishing in the state produces 25% of all seafood in the nation, and Louisiana is the USA’s top producer of crawfish, shrimp, alligator, menhaden and oysters[6]. Identifying, enhancing and protecting Geographical Indications within these industries is a way to add value to Louisiana’s agricultural and fishing industries.

Geographical Indications (GIs) can be a driver of socio-economic development in agricultural economies[7].  They have an obvious economic advantage in that they serve to valorize local agricultural commodity produce.  A GI ‘imparts notions of quality and locality to the products it is attached to, distinguishing those products’[8]  from generic commodities. It capitalizes on consumers’ desire for niche, specialty products over indistinct mass-produced commodities, coupled with consumers’ preparedness to pay a premium for such quality goods, which has been described as ‘production fetishism – the fetish for authentic locally produced goods’[9]. Simply put, GIs add value.

Fertile opportunity: Louisiana is uniquely suited to capitalize on GIs

The frazzle-toed boot shape of Louisiana escorts the Mississippi river on the last stretch of its long journey into the Gulf of Mexico. Louisiana accounts for 41% of the USA’s wetlands and has the longest coastline in the nation at 15,000 miles long[10]. Its landscape is filled with alluvial flatlands and prairie, swamps, bayous and lakes teeming with wildlife and fertility.  In addition to its topography, Louisiana is unique in the USA for its history, culture and French civil law system which traces back to the Code Napoleon and Roman law. This former French and Spanish colony, purchased from Napoleon by Thomas Jefferson in 1803, can be likened to its official state dish[11], the gumbo, a big culture pot into which diverse people have put their know-how, traditions and savoir faire, and cooked those slowly to exceptional distinction.  Part of the state’s historic French leaning is its sense of place and its celebration of food.  Louisiana reveres its Creole tomatoes, wild-harvested Cajun shrimp and oysters, Tasso ham, Louisiana strawberries, Zydeco music and a Cajun-Creole food tradition.

The State has every incentive to protect and build on such gifts of culture and environment in order to enhance the value of its goods and services, and thereby to gain a competitive advantage for its producers over other products and services in the market.   It stands uniquely poised to spur a renaissance in GI-thinking in the USA, and to lead by delicious examples.

  1. CONCEPT OF GEOGRAPHICAL INDICATIONS

European countries were the first to have harnessed the blend of economic opportunity, marketing potential, collective benefit and cultural protection that GI’s represent.

Any mention of Geographical Indications (GIs) typically starts with evocative examples such as ROQUEFORT, GRUYERE or PROSCUITTO DI PARMA.[12] These names hardly need introduction.  They powerfully tie a place and its producers to reputable products of quality for which a premium price can be commanded. But how are they ‘born’, how do they come to be protected, and where do they fit into the scheme of how and why we market agricultural produce?

Legislation to protect the commercial reputation of agricultural producers in discrete geographical localities evolved in Europe[13]. Before the Industrial Revolution commenced, international trade was mainly comprised of agricultural products.[14] As trade developed, it became clear that products from particular regions were more marketable than the same products from other regions because of their superior quality. This quality resulted either from natural geographic advantages, such as climate and geology (e.g. SEVILLE oranges), or from traditional food processing techniques of a region (e.g. BURGUNDY wine).[15] To protect the commercial reputation of local communities against counterfeiters, local legislators next passed laws to preserve these indications of origin and their production methods.[16]

It is illuminating to analyze this progression of GI protection by example of a few of its most successful ambassadors.

  1. Roquefort

By the Middle Ages, Roquefort cheese had already enjoyed a reputation in the Mediterranean region.[17] In the 15th Century, Charles VI, granted a monopoly to the people of Roquefort to refine their cheese in state protected lime caves, and by 1666 Charles VII granted a decree allowing for the punishment of producers of imitation Roquefort cheese.[18] Roquefort was coined “King of Cheeses” by French philosopher Diderot during the Age of the Enlightenment, and, by the 19th Century, many ambassadors’ reports stated that Roquefort contributed (as Champagne also did) to the reputation of France in the United States.[19] In 1925 it was the first cheese to be granted the title Appellation d’Origine in France; and by 1951 Roquefort was confirmed through international treaty as an appellation of origin.[20] Today, Roquefort is registered in the European Union as a ‘protected designation of origin’ (PDO). The terms of its production are precisely codified. [21]In the USA ‘Roquefort’ has been registered as a certification mark by the United States Patents and Trademarks Office (USPTO) trademarks[22] since February 1952 in name of the Community of Roquefort, a municipality in France.  Its first date of use in commerce in the USA is indicated as 1886. It is certified for use ‘upon the goods to indicate that the same has been manufactured from sheep’s milk only, and has been cured in the natural caves of the community of Roquefort, department of Aveyron, France’.[23] Alongside it on the trademarks register is Roquefort’s collective trademark registration no. 4680603:

Whereas the certification mark is registered in name of the municipality/community of Roquefort, this collective mark is registered in name of Confederation Generale des Producteurs de Lait de Brebis et des Industriels de Roquefort association (the association of Roquefort cheese producers).  The date of first use in commerce in the US is indicated as 1965.[24]

  1. Gruyere

The story of Gruyere cheese[25], and its production in the district of La Gruyère in Switzerland can be traced back to 1115. Medieval chronicles mention the expertise of its inhabitants, who turned the milk production of their herds into full fat cheese which was sold as far afield as in France and Italy at the time. Recognition and commercial marking of the name Gruyere as an appellation came in the 17th century, as did a boom in exports. With quality as its only means of defense, Gruyère was often imitated. By the mid-19th century a campaign began to structure the Gruyere trade, and to fight for it to become a protected designation of origin (PDO). In 1981 the Confrerie du Gruyere was founded with 1600 members.  They signed the Gruyere charter in 1992, wherein milk producers, cheesemakers and refiners agreed to production procedures and quality criteria for Gruyere cheese.  In 1997 Swiss federal regulations followed, and the Interprofession du Gruyere was formed. However, it was only in 2001 that GRUYERE cheese was granted Controlled Designation of Origin (AOC) status at the Swiss national level. By 2012, it achieved the Protected Designation of Origin (PDO) status for all of Europe.[26] The mark ‘Le Gruyere Switzerland AOC label’ was registered by the Interprofession du Gruyere as a certification mark with the USPTO in 2013 and provides: ‘The certification mark, as used by persons authorized by the certifier, certifies that the cheese originates in the Gruyère region of Switzerland including the cantons of Fribourg, Vaud, Neuchatel, Jura, and the districts of Courtelary, La Neuveville, Moutier, and the communes of Ferenbalm, Guggisberg, Mühleberg, Münchenwiler, Rüschegg and Wahlern of the canton of Bern.’[27]

  1. Darjeeling

Old World European countries are by no means the only ones to have recognized and fostered the economic benefits of GIs. Tea was first planted in the Indian district of Darjeeling in 1841[28]. Darjeeling lies to the north east of India, among the Himalayas, in the state of West Bengal. The quality of Darjeeling Teas is reputed to be as a result of its locational climate, soil conditions, altitude and meticulous processing. About 10 million kilograms are grown every year, spread over 17,500 hectares of land. There are 87 ‘gardens’ (plantations) that produce the highly prized black teas of Darjeeling. All teas produced in Darjeeling are administered by the Indian Tea Board, under India’s Tea Act of 1953. The Tea Board has protected this ‘treasured icon of India’s cultural heritage’ as a GI worldwide. The Tea Board is the owner of the Darjeeling registered certification mark under the Indian trademark system, and of the first GI to be registered under India’s GI registration system. Darjeeling is also protected as a certification trademark in other countries, including in the USA, and as a collective trademark in the European Union. It has further been registered as a Protected Geographical Indication (PGI) in Europe since 20th Oct 2011[29]. The Tea Board has formulated and put in place a comprehensive certification scheme wherein the definition of Darjeeling Tea has been formulated to mean only tea that is cultivated, grown or produced in one of the 87 tea gardens in the defined geographic areas and which have been registered with the Tea Board; and has been processed and manufactured in a factory located in that defined geographic area; and when tested by expert tea tasters, is determined to have the distinctive and naturally occurring organoleptic characteristics of taste, aroma and mouth feel, typical of tea cultivated, grown and produced in the region of Darjeeling, India.[30]

  1. What the European examples teach

GIs start with a unique geographic place and its skilled local producers who combine to render a unique product. This product gains a reputation over time for its special qualities, which leads to high demand and premium prices in the marketplace. Recognition of, and local/national protection for the name follows. Imitators who want to hop on the bandwagon follow along and become problematic – either because they cause consumer deception or confusion as to the true origin of their wares, or because they dilute and destroy the value of the well-known GI over time. Control over the name typically falls to a government agency/commission who strives to ensure the integrity and protection of the GI together with (and in the interest of) a collective body of local producers.  These parties (government and producers) together agree on the rules of production of the goods, and their quality criteria.

As trade expanded after the Industrial Revolution, businesses and developed countries’ governments also became concerned with the protection of GIs in international markets.[31] The most comprehensive system for the protection of geographical indications was developed in France[32]. Its Appellation d’Origine Controlee (AOC) system to designate origin and engage in quality control was created in 1935 and became the precursor to the EU’s GI system[33].  And it has been Europe who has led the charge for GIs in the international framework.

  1. REGULATORY FRAMEWORK

International Framework

The only multilateral agreement to deal with GIs is the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS define GIs as indications which ‘identify a good as originating in a WTO country’s territory, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin’[34].

A GI is a collectively owned, sui generis intellectual property right which links the geographic origin of a product to its qualities.  In TRIPS it stands as a category of intellectual property apart from trademarks. Although GIs seem at first blush to be akin to trademarks, they differ in material ways.

Unlike a trademark right, it is not owned and used by one person or entity but belongs to a collective body of producers as they may be found from time to time in a defined geographic locale.  Its distinctiveness is not found necessarily in the mark (as with a trademark), but rather in a blend of unique characteristics derived from the geographic and human production factors which are represented under the mark.  It does not identify goods from one producer, but rather from one defined region. For this reason, GI’s cannot be sold or assigned out of the production area. They are ‘tethered to the land’.[35] To be fanciful, they are the nearest intellectual property rights to real rights, serving almost as easements on the land.

And they serve a combination of interests beyond the private economic. These interests include cultural protection and the preservation of tradition for the benefit of a community of local producers and residents, and consumer protection.  To consumers, they are a ‘means of identifying the source and quality of goods’ on labels, and they ’convey a quality associated with a particular soil, climate, and method of production’.[36]

In the international framework, GI’s find themselves under a larger umbrella covering all Indications of Source (of which a simple factual indication such as ‘Made in Louisiana’ would be the broadest). And they stand there alongside a more exacting relative called Appellations of Origin. All GIs and Appellations of Origin are Indications of Source, but not vice versa.

An understanding of these terms, and how GIs developed at international level, start with the World Intellectual Property Organization (WIPO), one of the most successful United Nations agencies.  WIPO administers several treaties[37] that deal with indications of source.

The first such international treaty was the Paris Convention for the Protection of Industrial Property (1883). It applies to industrial property in the widest sense, including indications of source and appellations of origin[38]. It laid down a common rule that all contracting states (including the USA as one of its 177 members) must take measures against direct or indirect use of a false indication of the source of goods or the identity of their producer, manufacturer or trader. Indications of source and appellations of origin were not defined in the Paris Convention. The aim of the provision is (1) the protection of consumers against fraud, and (2) the prevention of unfair competition in the market. These two themes (i.e. protection of consumers and competitors alike) follow the development of GI law throughout.

Then came the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, in 1891, which provides that all goods bearing a false or deceptive indication of source, by which one of the contracting states, or a place situated therein, is directly or indirectly indicated as being the country or place of origin, must be seized on importation, or such importation must be prohibited, or other actions and sanctions must be applied in connection with such importation. It prohibits the use, in connection with the sale, display or offering for sale of any goods, of all indications in the nature of publicity capable of deceiving the public as to the source of the goods.[39] The USA is not one of the 36 contracting states[40].

The heights of international GI protection are reached in the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958). The Lisbon Agreement protects and defines an appellation of origin 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 geographic environment, including natural and human factors’[41]. Such denominations are registered by the International Bureau of WIPO in Geneva who keeps an International Register of Appellations of Origin. A registered appellation is protected against usurpation or imitation, even when used in translation or accompanied by words such as “kind”, “type” or the like[42], and may not be deemed to have become generic in a member state as long as it continues to be protected in its country of origin[43].

Appellations of origin are more exacting than GI’s in that they may only be actual geographical place names, and that their quality or characteristics must be due exclusively or essentially to their geographic environment.  All Appellations of Origin are GIs, but not all GIs are Appellations of Origin. The Lisbon Agreement has only 26 contracting parties and the USA is decidedly not one.

The basic means to protect GI’s are typically provided by WTO member countries through a mixed bag of trademark systems (such as collective and certification marks), sui generis or administrative systems, unfair competition laws and consumer protection laws[44].

US Federal Framework

The USA is a founder member of the WTO and bound to provide the legal means to prevent the use of designations or presentations of a good that indicates or suggests that the good in question originates in a geographical area other than its true place of origin in a manner which misleads the public as to the geographical origin of the good, or which constitutes an act of unfair competition.[45]

But the American way, unlike the French-Continental way, has been skepticism, wariness and resistance to heightened and stand-alone GI protection. This approach has denied the full potential which heightened GI protection may have for both US producers and consumers[46].

The USA is wary of the extra-territoriality of the Lisbon Agreement and committed to maintaining the genericism of many European appellations within its jurisdiction (‘Parmesan’ and ‘Champagne’ being examples).  It may also view itself as having less of a vested interest in expanding the protection of geographical indications beyond what its trademark system allows for. IDAHO POTATOES, FLORIDA ORANGES and WASHINGTON STATE APPLES are examples of successful US GI’s[47], but they don’t enjoy the Old-World stature of PROSCIUTTO DI PARMA, GORGONZOLA and CHAMPAGNE. The USA views GI’s as ‘a subset of trademarks’[48] and has adopted the position that its TRIPS compliancy requires no more than to protect GI’s through the trademark system, and specifically, through protection offered via either certification or collective trademarks under the Lanham Act[49].

A certification mark is any word, name, symbol, or device (or any combination thereof) which is used by a person other than its owner to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization[50].

In the US it is typically a governmental body or agency that owns and exercises control over the use of GI certification marks.[51] It is argued that competitors and consumers are those with the greatest interest in maintaining accuracy and high standards in the certification process and that US government agriculture inspectors have nothing to do with certification marks.[52] The US seems to pride itself on GI protection housed inside the existing trademark system where the rigorous quality standards of GIs will be exacted through opposition and cancellation proceedings launched by those with contrary interests, notably competitors and imitators.[53] Certification marks may be a suitable vehicle for GIs, but a vision of them as a passive government property whose quality standards are maintained out of fear of adversarial action by competitors is skewed.  The integrity of GIs is driven from the inside, from a collaboration between producers and regional government, both of whom are interested in furthering not just trade, but preserving regional production and culture.

The other special trademark that more closely reflects the internally driven nature of GIs is a collective mark, which is defined as a trademark or service mark used by the members of a cooperative, an association, or other collective group or organization and includes marks indicating membership in a union, an association, or other organization[54].

A collective mark is used only by the members of the collective. Membership of the organization is required, on top of which the organization may have internal rules dictating how the GI may be used. It distinguishes the goods or services of members from those of non-members. An agricultural cooperative of produce sellers is an example of a collective organization, which promotes the goods and services of its members.[55]

Although the US resists the notion that GI’s can be better maintained via sui generis systems, it nonetheless has such a system for its wine appellations of origin[56]. The Federal Alcohol Administration Act governs the bottling packaging, marketing, and labelling of wine.  Regulations under the Act are delegated to the Bureau of Alcohol, Tobacco, and Firearms who provide protection to GI’s in wine labelling according to a classification system[57].

State of Louisiana Framework

  1. ‘Louisiana Grown’ Brand

Louisiana’s Agriculture Department is keenly aware that a program of branding and collective marketing of Louisiana agricultural produce can add value to the industry, as exemplified by its ‘Louisiana Grown. Real. Fresh. Logo’ (see below) program. Farmers, and the retailers and wholesalers of their produce, can apply for a free license to use the trademark on 100% Louisiana harvested and grown specialty crops (which include fruits and nuts, vegetable, herbs and spices).[58] The branding program is laudable, but its aim falls short of GI protection, as it is focused only on creating consumer awareness and increased consumption of Louisiana specialty crops, and it focuses its efforts only on intrastate trade. This is a pure trademark-based initiative.

 

  1. Cajun and Louisiana Creole Consumer Protection Law

Effective 2 June 2006, the State of Louisiana enacted the Cajun and Louisiana Creole Goods and Services Consumer Protection Law[59] after a finding that the terms CAJUN and LOUISIANA CREOLE refer to the unique and distinctive culture and lifestyle that originated in, are connected with, and have continued to flourish in a region within the state of Louisiana[60].

From there the legislature recognized that these terms, when used in commerce in connection with goods (including agricultural goods) and services, are ‘generally recognized and accepted’ by consumers (local and foreign) as ‘referring to, originating in or being substantially connected with’ the state of Louisiana and its unique and distinctive Cajun and Louisiana Creole cultures and lifestyles[61]. The state accordingly recognized an existing reputation and consumer expectation linking these names to the region; and identified that they have commercial value.

The legislature found that the commercial use of the terms CAJUN and LOUISIANA CREOLE, in connection with goods or services that do not originate in, are not substantially connected with, or are not substantially transformed in the state of Louisiana, or in or with that unique and distinctive Cajun and Louisiana Creole cultures and lifestyles that originated in, are connected with and have continued to flourish in a region within the state of Louisiana, are primarily geographically deceptively misdescriptive and are likely to cause confusion, mistake or deception as to the origin, sponsorship, affiliation, connection or approval of said goods or services in, by, with or of the state of Louisiana[62].

  1. Cajun and Louisiana Creole as Certification Marks

Out of this recognition of reputation and consumer expectation grew a resolution ‘to adopt, appropriate, and establish’ the terms ‘and any derivative or combination of either term, as certification marks’ to be owned by the state.  They are to be used by ‘others engaged in commerce’ to certify Louisiana as the geographical origin of good and services ‘that originate in, are substantially connected with or have been substantially transformed’ in the state, with use limited only to such goods, and to protect and enforce the certification mark against misuse and infringement – to ensure that consumers are not deceived or confused ‘as to the origin, sponsorship, affiliation, connection or approval of said goods or services in, by, with or of the state of Louisiana’[63].

The State then determined to adopt and own these terms as certification marks.[64]As for what is being certified, Louisiana Revised Statute 3:4704 now provides that the terms ‘CAJUN’ and ‘LOUISIANA CREOLE’ may only be used to identify goods and services in commerce if ‘the services or goods originate in, are substantially connected with, or have been substantially transformed in the state of Louisiana’. It is accordingly envisioned that the terms will function as little more than indications of source (indicating a product made in Louisiana), rather than as GIs, for which certain qualities or characteristics of the goods have to relate back to the geographic origin.

The authority to protect and enforce the certification marks (owned by the state of Louisiana) vests in its commissioner of agriculture.  This authority includes registering Louisiana’s claim to the certification marks in any state, national, or international office as may be required or desirable in order to give full force and effect to said certification marks[65].

A search on the business filings register of the Louisiana Secretary of State’s website reveals the following pertinent trademarks there:

  1. 57-7552 CERTIFIED CREOLE PRODUCT OF LOUISIANA WITH LOGO in name of Louisiana Department of Agriculture & Forestry (Baton Rouge) in respect of ‘meat & processed foods’ – registration date 04/01/2003.
  2. 57-7943 CERTIFIED CREOLE PRODUCT OF LOUISIANA & LOGO in name of Louisiana Department of Agriculture and Forestry (Baton Rouge) in respect of ‘staple foods; natural agricultural products;

light beverages; wines & spirits’ – registration date 05/02/2003;

 

  1. 66-0665 CERTIFIED CREOLE PRODUCT OF LOUISIANA & LOGO (rectangular shape) in name of Louisiana Department of Agriculture & Forestry (Baton Rouge) in respect of ‘meats & processed foods, staple foods, natural agricultural products, light beverages, wines & spirits, miscellaneous’ – registration date 08/12/2015;

 

  1. 49-0037 CERTIFIED CAJUN PRODUCT OF LOUISIANA & LOGO in name of Louisiana Department of Agriculture & Forestry (Baton Rouge) in respect of ‘meats & processed foods’ – registration date 01/02/1991;

 

  1. 57-7942 CERTIFIED CAJUN PRODUCT OF LOUISIANA & LOGO in name of Louisiana Department of Agriculture and Forestry (Baton Rouge) in respect of ‘staple foods; natural agricultural products; light beverages; wines & spirits’ – registration date 05/02/2003;

 

  1. 66-0666 CERTIFIED CAJUN PRODUCT OF LOUISIANA & LOGO (rectangular shape) in name of Louisiana Department of Agriculture & Forestry (Baton Rouge) in respect of ‘meats & processed foods; staple foods; natural agricultural products; light beverages; wines& spirits; miscellaneous’ – registration date 08/12/2015.

 

Louisiana’s Trademark Statute does not allow for the registration of certification marks, only for trademarks and service marks.[66] These state register registrations are accordingly only garden-variety trademarks.  They are not tied to certifiable standards, and they are not protected as GIs.

A search conducted on the federal USPTO’s website, using its TESS[67] search function, revealed no registrations for these terms as certification marks of the state of Louisiana either.  For the search term ‘LOUISIANA CREOLE’ there is only one live record, and that is for a ‘Colonel Lee’s Louisiana Creole Seasoned Salt label’, registered since October 2015 for ‘seasonings, namely seasoned salt’, in name of Creole Gourmet Spices LLC of Louisiana. For the search term ‘LOUISIANA CAJUN’ there are 5 live records that incorporate the phrase, including three of those for ‘Louisiana Cajun Zydeco Festival’, one for ‘House of Blues Louisiana Cajun Hot Sauce’, and one for a ‘Lights Out Spices Louisiana Cajun Seasoning label’. A search for all live federal trademarks incorporating CREOLE revealed 86 live records (including trademarks such as PAPA CREOLE’S, KING CREOLE, CREOLE GODDESS, LET THE GOOD TIMES CREOLE and even CAROLINA CREOLE[68]). A search for live federal trademarks incorporating CAJUN revealed 305 live records.  The terms CREOLE and CAJUN by themselves are evidently well established in both generic use, and as part of the prior trademarks of several other persons.

  1. Cajun Statute

In addition to the broad-sweeping efforts to protect CAJUN and LOUISIANA CREOLE as certification marks/trademarks, LSA-R.S. 3:4617 (under Louisiana’s Weights and Measures Law) provides further (as ‘fraud by vendor or by purchaser’) that:

‘D. No person shall advertise, sell, offer or expose for sale, or distribute food or food products as “Cajun”, “Louisiana Creole”, or any derivative thereof unless the food or food product would qualify for the ten percent preference for products produced, processed, or manufactured in Louisiana under R.S. 38:2251 and R.S. 39:1595. Food brought into and processed in Louisiana shall not be considered as food or food products made in Louisiana, for purposes of this Section, unless the food has been substantially transformed by processing in Louisiana.

  1. No person shall advertise, sell, offer or expose for sale, or distribute food or food products that do not qualify under this Section for labelling as “Cajun”, “Louisiana Creole”, or any derivative thereof in any packaging that would lead a reasonable person to believe that the food or food product qualifies as “Cajun” or “Louisiana Creole” food or food products, as defined in this Section.

This statute tries to address the problem by resorting only to consumer protection as the rationale for protecting these terms, i.e. use of the terms that ‘would lead a reasonable person to believe’ that product is made in Louisiana.

  1. PROBLEMS

International lack of consensus

The on-going difficulty in resolving the mandate to negotiate for greater multilateral GI protection under the TRIPS agreement is a result of a New World vs Old World divide[69], rather than the more typical North vs South (or Developed vs Developing World) debates at the WTO. Immigrants to the new world carried with them their know-how and traditions, and continued using their old-world names for products in their new home countries.  Those names have as a result become generic in the new world.  They now typify a kind of product, rather than a product produced in a specific region[70].  Arguably they have fallen into the public domain.

TRIPS provide an exception for such grandfathered terms[71], and there is no obligation under TRIPS for a country like the USA to be deprived of the generic use of GIs (e.g. Parmesan) made before TRIPS came into being.  ‘Each member country determines whether a term is generic (for its internal purposes) based upon the term’s customary usage within that country.  This practice allows for considerable deterioration of GI protection.’[72]. The USA has relied on the exception to generic use of GIs in TRIPS considerably.[73] The argument could be asked where GIs would end and generic names begin?  Will we soon not be able to use SPAGHETTI, SAUERKRAUT, MOZZARELLA and other names that originated in Europe, if we give in on CHAMPAGNE and PARMESAN now?

Frustrated by the failure thus far to secure greater protection for its GIs at multilateral level, the EU has made them a key feature of its bilateral and plurilateral trade agreement strategies.  It is succeeding to a substantial degree at this level to ‘claw back’ generic names which it had heretofore been unable to do at WTO level.

An example of the success of such a claw back strategy can be found in South Africa’s Economic Partnership Agreement[74] with the EU which includes a prohibition on the use of a list of names for cheeses, meats, olive oils, beers, vinegars, fruits and other foodstuffs including FETA, FONTINA, GORGONZOLA, GOUDA HOLLAND, GRANA PADANO, ROQUEFORT, PARMIGIANO REGGIANO, TALEGGIO, WHITE STILTON/BLUE STILTON CHEESE (for cheese), PROSCIUTTO DI PARMA (for meats) and ACETO BALSAMICO DI MODENA (for vinegar)[75].

Some of the names on the list, such as FETA, are used generically in South Africa to describe a style or variety of food product.  If the prohibition on FETA, by way of example, is adopted, this will mean that South African cheese producers and retailers may only use FETA in future on cheese produced in, and exported from, Greece. Local feta cheese will have to be relabeled and consumers re-educated, all of which will be costly.

In Europe itself, FETA, as a Greek Protected Designation of Origin (PDO) for a white cheese in brine produced from ewes’ milk, had a long claw-back from genericism with challenges brought by Denmark, France and Germany, who produced cheese under the same name from cows’ milk [76].

The same success with cheese names has been achieved for the EU in its Comprehensive Economic and Trade Agreement with Canada.[77]

GI protection plays a key role in the agricultural industry of the EU.  They are perceived as promoting the cultural heritage of EU member states, as well as serving the EU’s agricultural economy.  Stronger protection for GIs in the EU ‘reflects European cultural values and the national pride and traditions of Europeans citizens’[78]. GI goods with their consumer perceptions of greater quality through originality and specialty mean that such goods achieve higher prices thereby raising both commercial awareness of these quality goods and achieving rural development policy objectives.[79] The USA, by contrast, sees the EU’s GI regime as little more than market protectionism.  When you consider the ‘slippery slope’ of GI protection in Europe, where even the slicing, dicing, grating, packaging and labelling of the GI hams and cheeses may have to be done within the geographic area to entitle the product to GI use[80], the market protectionism suspicion isn’t entirely without foundation.

Since 1992 the EU has had a sui generis regime to provide protection throughout the EU for GIs for agricultural products and foodstuffs. Registration under the scheme is open to third countries. The latest EU rules on quality schemes for agricultural products and foodstuffs is European Parliament and Council Regulation 1151/2012 which came into force in January 2013. This new regulation provides the rules for Protected Designations of Origin (PDO), Protected Geographical Indications (PGI), and Traditional Specialties Guaranteed (TSG) and optional quality terms. Protected Designations of Origin (PDO) are defined as originating in a specific place, region, or in exceptional cases, a country; a quality or characteristics of the product are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors; the production steps all take place in the defined geographical area (e.g. Parma ham). Protected Geographical Indications (PGI) are defined as originating in a specific place, region or country; quality, reputation or other characteristics is essentially attributable to the geographical origin; at least one of the production steps takes place in the defined geographical area (e.g. Gruyere). Traditional Specialties Guaranteed (TSG) scheme applies to foodstuffs with a ‘traditional’ character. Products are eligible for TSG registration if their specific character results from a traditional production or processing method (e.g. Mozzarella). The time period before a product can be considered ‘traditional’ is at least 30 years.[81]

US Resistance To Do More

Although settling on protection via the trademark system sees the USA compliant with the minimum standards required by TRIPS (and thereby its international obligations), it does not help to realize the USA’s own potential in the field. The USA has not registered any of its own GIs as either PDOs or PGIs in Europe, whereas other countries have taken advantage of such protections, e.g. Colombia with CAFÉ de COLOMBIA[82] and India with DARJEELING[83].

Refusal to claw back generic terms, and adhering to principles of private registration and enforcement over collective, state-involved requirements of true GI protection, are hamstrings. Margaret Ritzert[84] argues that the disagreements between the EU and the USA on how to protect GI’s can be explained by the evolution of the market system in both cultures.  The USA has had a competitive market from the beginning, and therefore relies on private trademarks.  The EU developed from feudal or pre-liberated economies where reliance on GI’s predated the development of brand names.

Problems faced by Louisiana

  1. GIs for services?

The Cajun and Louisiana Creole Consumer Protection Law[85] refers not only to goods, but also to services, thereby raising the question as to whether the marks are appropriate as geographic indications for services at all, having been identified predominantly as products of culture and lifestyle (and hence being movable out of the area, and not fixed to a physical environment). Nothing in TRIPS precludes a state from providing GI protection also for services, although the definition of GIs does not include services[86].  What of Swiss banking services, Swedish massages…and Creole Cooking?  I would argue that a service mostly cannot be tied to a place in the same way that a good can, with some exceptions where the rendering of the quality service is per force tied to the environment from whence performed (e.g. Swiss banking that relies on banking regulations unique to Switzerland).  The reputation for service GIs may be present, but terroir (a connection tying the characteristics or qualities of the service to a particular place) is free of foot.  Services can travel out of an area with the persons skilled to render them.   Cajun-Creole food can be cooked and served anywhere. As demonstrated by Louisiana’s celebrity chefs such as Emeril Lagasse and the late Paul Prudhomme, who have practice their Creole-Cajun cuisine beyond the borders of Louisiana.

As for its services industry, the state had adopted LSA-R.S. 51:1265 (Logo for authentic Louisiana Cajun-Creole cuisine) which authorized the office of tourism to develop and adopt an official logo to indicate authentic Louisiana Cajun-Creole cuisine by registering the logo as a trademark and protecting it from misuse or infringement; licensing the use of it and adopting rules to determine who would be allowed to use it.  The office may charge fees for the use of the logo. Any restaurant located in Louisiana shall be eligible to utilize the Louisiana Cajun-Creole cuisine logo, subject to rules and fees determined by the office (who would promote the logo in turn)[87]. This initiative must be seen as a quality and marketing initiative under a trademark right, rather than as a GI.

  1. Non-place names

CAJUN and LOUISIANA CREOLE are not geographical place names. GIs typically consist of the place names from whence the goods originate, such as DARJEELING. But, unlike appellations of origin, non-geographical names, such as FETA, CAVA or GRAPPA, or symbols commonly associated with a place (such as New Orleans’s Fleur De Lis might be), can also constitute a GI.  The field is accordingly available to names such as CREOLE TOMATO and TASSO ham which are not place names.

  1. Reliance solely on consumer protection rationale

The ‘Cajun Statute’ came under review in Piazza’s Seafood World, LLC v. Odom[88]. The outcome illustrates that Louisiana should not have phrased its state interest as being only to protect Louisianans from misleading and deceptive uses of trade names.  The Cajun and Louisiana Creole Goods and Services Consumer Protection Law made clear that the state’s interest in these terms goes further, namely to reap commercial benefit for the citizens and producers of Louisiana and to preserve cultural heritage.

Piazza, a Louisiana company, had been importing seafood (including catfish) from China, and selling it wholesale in Louisiana under the Louisiana registered trade names “Cajun Boy” and “Cajun Delight”. Piazza’s customers were mainly institutional buyers that resold the Chinese fish to wholesalers and restaurants, but Piazza also sold about one percent of its products to grocery stores who sold directly to the public.

The Chinese catfish are descendants of American catfish imported to China for farming purposes, and they are biologically identical to American catfish. In 2004 the Louisiana Agriculture and Forestry Commissioner ordered several of Piazza’s customers not to “sell, offer for sale, apply, move or remove” any of Piazza’s products. The Louisiana legislature had repealed the “grandfather clause” in the Cajun Statute that had previously safeguarded use of the word “Cajun” in a product name if that name was a registered trademark or trade name in the state of Louisiana as of May 15, 2003[89]. Without the protection of the grandfather clause, all of Piazza’s inventory violated the Cajun Statute. Piazza accordingly sought an injunction against the Commissioner and argued that the Cajun Statute was unconstitutional under the First Amendment.

The Commissioner argued on appeal that Piazza’s First Amendment rights were not violated by the Cajun Statute because Piazza’s use of the word “Cajun” in its trade names is misleading and deceptive; alternatively, that even if the use of the word “Cajun” is not misleading or deceptive, Louisiana has substantial governmental interests in regulating use of that word that are directly advanced by the Cajun Statute, and the statute is narrowly tailored to achieve those goals. Piazza countered that the Cajun Statute, as applied to Piazza, violated all four prongs of the relevant Central Hudson Gas v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) test and thus constitutes an impermissible restriction on Piazza’s First Amendment right to use the “Cajun Boy” and “Cajun Delight” trade names.

In commercial speech cases a four-part analysis has developed. At the outset, it must be determined whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, the asserted governmental interest must be substantial. The court found (1) that Piazza’s use of the “Cajun Boy” and “Cajun Delight” trade names was only potentially misleading, not actually or inherently misleading, because Piazza largely sells its products to wholesalers and it labels its products with their country of origin and (2) that Louisiana’s interest in protecting Louisianans from misleading and deceptive uses of trade names was substantial.

(I disagree that the trade names, applied by a Louisiana company who had in the past sold most only Louisiana seafood, and then had switched to selling most only imported seafood, were not actually or inherently misleading simply because it sold to wholesalers, and because its labels said, ‘Made in China’ somewhere. The term CAJUN, applied to seafood sold in Louisiana, to be consumed in Louisiana, would most definitely have triggered a connection or association with the state and its culture.  And the use of the trade names (be they of long-standing use, registered, or not) were designed to reap that benefit where the Piazza company has not sown.)

As both inquiries yielded positive answers for the court, it then turned to whether the Cajun Statute directly advanced Louisiana’s asserted interest in protecting Louisianans and whether the statute was more extensive than necessary to serve that interest. It found that the state’s interest in protecting Louisianans from deception was not enhanced by application of the state statute to Piazza because there was no deception present to be prevented. The court also found that the state statute was more extensive than necessary when applied to Piazza because it contained no exception for sellers like Piazza who disclose truthful information (country of origin) on their food labels that eliminates the deceptive nature of the labelling. The Cajun Statute is not facially invalid, only invalid as applied to Piazza.

 

The cases of seafood were later released for sale after Piazza agreed to stamp the word “Chinese” above the word “catfish” on each case. Each case was already marked “Product of China,” and the parties did not dispute that Piazza had always marked its foreign products with their country of origin.

After this case section F. of the Cajun Statute now provides: –

  1. (1) The legislature hereby finds, determines, and declares that the terms “Cajun” and “Louisiana Creole” are terms that refer to the unique and distinctive culture and lifestyle that originated in, are connected with, and have continued to flourish in a region within the state of Louisiana.

(2) The legislature hereby finds, determines, and declares that the terms “Cajun” and “Louisiana Creole,” when used in commerce in connection with goods, including agricultural goods or services refer to, and are generally recognized and accepted by Louisiana, national, and foreign consumers as referring to, originating in or being substantially connected with the state of Louisiana and the unique and distinctive culture and lifestyle that originated in, are connected with and have continued to flourish in a region within the state of Louisiana.

(3) The legislature hereby finds, determines, and declares that the use of the terms “Cajun” and “Louisiana Creole,” when used in commerce in connection with goods, including agricultural goods or services that do not originate in, are not substantially connected with, or are not substantially transformed in the state of Louisiana, or in or with that unique and distinctive Cajun culture and lifestyle that originated in, are connected with, and have continued to flourish in a region within the state of Louisiana, are primarily geographically deceptively mis descriptive and are likely to cause confusion, mistake, or deception as to the origin, sponsorship, affiliation, connection or approval of said goods or services in, by, with or of the state of Louisiana.

(4) No person shall, on or in connection with any goods, including agricultural goods, or services, or any container for goods including agricultural goods, use in commerce the terms “Cajun” or “Louisiana Creole” or any derivative or combination thereof, in any manner which (a) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with the state of Louisiana, or as to the origin, sponsorship, or approval of such person’s goods, including agricultural goods, services, or commercial activities in or by the state of Louisiana; or (b) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of said person’s or another person’s goods, including agricultural goods, services or commercial activities’.[90]

  1. d) Claw-back and Prior Trade Marks

Louisiana had bumped up against the ‘claw back’ problem that has plagued the EU where generic/common names and/or prior registered trademarks are concerned. It has also come up against the USA’s predominant rationale for GI protection, namely consumer protection against misleading or deceptive names. Consumer protection is but one half of the picture.

But, the Louisiana legislature has demonstrated the right instinct to protect these important marks as a public, rather than as private property for the benefit of the producers and citizens of Louisiana as a collective.  GIs are not in league with privately owned trademarks. GIs denote more than consumer protection (deception and confusion as to a product’s origin), as per the result in Piazza.  They also denote geographic community (producer) benefit and protection of regional cultural/traditional expressions.  These interests are a public good, and they should not be measured and protected only in terms of valuing consumer protection against deception, but also against dilution and deterioration of this community property.

  1. What is lacking in Louisiana’s efforts?

Louisiana adopted trademark registrations on the one hand, and consumer protection laws on the other to try to achieve standards of GI protection.  These efforts have apparently not been successful, as the sales of ‘Cajun catfish’ imported from China would seem to demonstrate.

Codes of Practice, certification standards and agricultural regulations for production and processing are lacking. Collective associations or consortiums of producers have not yet been brought together and organized for their communal benefit.  The roles and interplay between private and government institutions to be involved and the procedures of the GI implementation schemes have to be developed and agreed. Existing, specific products of excellence that can carry a GI have not been singled out.  Not just the name LOUISIANA CREOLE, but CREOLE TOMATOES, not just CAJUN but CAJUN SHRIMP, not just CATFISH but DES ALLEMANDS CATFISH.  These products must be selected for GI treatment based on the criteria for success proposed below. And defined geographic production areas for such specific agricultural goods must be demarcated.

“Not only the intellectual property right itself must be taken into account. Other related policies are crucial. …From the beginning of the registration procedure, measures like the publication of the code of practice and the opening of an opposition procedure are important. They legitimate the definition of the product negotiated by the actors themselves (delimitation of the area of origin and definition of conditions of production). Otherwise, given that after the registration, the code of practice becomes mandatory for all the users of the name, there is a risk of serious loss of efficiency of other related policies. For example, when the definition of an area of origin is too large or the conditions of production too vague, the internal competition and stimulation between small scale farmers or processors can be lost very rapidly. Indeed, new producers, which compete on costs with completely different production methods, can easily capture the image of the product.’[91]

 We have to first ask what qualities, reputation or other characteristics of goods already produced in the region have specificity, typicity and the potential for collective and institutional co-ordination so as to render successful GIs?  Starting with the declaration of a GI (CAJUN, for example) without identifying the particular goods for it, and without specifying the characteristics and quality criteria by which it is to be grown, processed or harvested, and without a finer geographic area demarcated other than Louisiana, is to put the cart before the horses. GI success stories work from the bottom up and not from the top down.  They start with the goods themselves, the area of production and the producers.

  1. RECOMMENDATIONS FOR LOUISIANA

The process starts by identifying GIs that have developed organically in Louisiana, and that have the potential for success if protected and promoted.  There are several good candidates for GI attention in Louisiana, ranging from Tasso Ham[92] and Louisiana Strawberries, to Cajun Shrimp and Creole Tomatoes.

Before settling on a potentially successful Louisiana GI, there are key ingredients for the success of GI products to consider, which include[93]:

  1. Product specificity: the GI goods must be differentiated from other standard comparable goods in the market by specific measurable characteristics. These include characteristics which consumers can identify on buying them (they smell sweeter) or production characteristics (they require less irrigation to grow). The different factors that can contribute to product specificity are the geography, production area, production practices, production system and specific species[94].
  2. Mode of production: This entails a codification of production processes and a link to geographical origin;
  3. Typicity: The GI good should be connected to a certain terroir. Terroir is a homogeneous and defined production area which links the difference and uniqueness of the roses grown there to a combination of human (know-how, tradition) and natural (soil, topography, climate) production factors typical of that zoned environment. Terroir consists of (1) a natural site, (2) a set of knowledge and human practices and (3) deep rooted traditions and cultural customs. Typicity is rooted in a historical and geographical context specific to the region of origin.[95]
  4. Customer appeal or market demand for the product: Consumers must have a positive perception of the good and share cultural affinities with it. ‘Long-standing ties between the product and the region instill habits and traditions reinforcing this appeal’.
  5. Collective initiative and action of producers: The farmers in that region must have the motivation and ability to achieve specificity and typicity collectively, and to apply rules and policy on the quality and origin of their roses. There must be an agreed-upon code of production;
  6. Institutional support, most typically from government agencies or commissions.

Creole tomatoes are grown in Louisiana, usually along the Mississippi River parishes of St. Bernard and Plaquemines, in rich alluvial soil.  They are reputed to be sweet and unique in flavor as a result of their terroir and the cultivation practice of keeping them on the vine for longer.[96] Perceived characteristics include that they are medium-sized, often misshapen, and that they taste rich and beefy. Another visual characteristic of a true Creole could be that it has “green shoulders,” or shades of green encircling the area around the stem, whereas most other tomatoes are bred to be thoroughly red.

Creole tomatoes do not stem from a single variety of tomato plant, and that matters not. Although there had been a tomato variety named ‘Creole’, which was released by Louisiana State University in 1969, it was not commonly grown and has fallen into obscurity. An LSU study conducted in 2015 planted Creole seeds from 11 different companies and found marked differences in the germination rate, size of fruits and more. The bulk of Creole tomatoes may come from the Celebrity Tomatoes varietal.[97]

LSU Agricultural Center’s consumer horticulture specialist Dan Gill maintains that in the 1950s and 1960s, tomato growers in south Louisiana grew several kinds of tomatoes, and referred to them collectively as “Creole” to distinguish them from others grown elsewhere. The conclusion uneasily reached by some is that Creole is little more than a marketing term for any tomato grown locally in Louisiana, and that ‘all tomatoes labeled Creole are not equal’. [98]

Despite the absence of a single plant varietal to typify it, the Creole tomato was designated the official vegetable plant of Louisiana in 2003.[99] And the city of New Orleans celebrates it with an annual Creole Tomato Festival every June[100]. The term has acquired a reputation in the region over decades.

When you buy a Creole Tomato at any market, what you are buying is a tomato that was grown in Louisiana soil, has travelled a short distance to get to you, and has purportedly unique and delicious flavor characteristics as a result of growing in silt runoff from the Mississippi River mixed in the soil and other environmental factors such as a hot and humid climate.

A search of the Business Filings registers of the Louisiana Secretary of State for the term CREOLE[101] revealed the following active trade names, trademarks and service marks:

 

No. 63-0863 CREOLE TOMATO in name of Belina, LTD.[102] (New Orleans) in respect of ‘natural and agricultural products, staple, processed and unprocessed foods, festivals and markets, internet, history, lodging, dining, nightlife, sightseeing, shopping, events, maps and related services and products – registration date 7/21/2011;

No. 66-9239 CREOLE TOMATO FESTIVAL RUN/WALK in name of New Orleans Running Systems, Inc (Kenner) in respect of ‘run/walk event trade name’ – registration date 11/30/2016; and

No. 62-1065 SAINTS ALIVE! CREOLE TOMATO PEPPER JELLY W/PHOTO OF CREOLE TOMATOES & JALAPENOS in name of Preserving Louisiana Jellies, Jams & Sauces, LLC (Harahan) in respect of ‘jellies, jams, sauces’ – registration date 12/17/2009.

(There is an expired trademark no. 55-1818 LOUISIANA CREOLE TOMATOES which was registered for ‘natural agricultural products’ in name of Creole Tomato Vegetable Growers Association, Inc. (Chalmette).  It was actively registered from 7/7/1997 until 7/7/2007.)

A search conducted on the USPTO database revealed one registration incorporating ‘Creole Tomato’, namely registration no. 85129825 for FRENCH MARKET’S ANNUAL CREOLE TOMATO FESTIVAL in service class 41 for ‘organizing community festivals featuring a variety of activities, namely, food fairs, art exhibitions, flea markets, heritage markets, music performances and the like’.  The trademark has been registered since September 2010.  Its first commercial use was in January 1986. It is registered in name of French Market Corporation of New Orleans.

As far as existing (prior) trademark rights are concerned, the field is relatively clear and manageable.

CREOLE TOMATOES could be an ideal GI for Louisiana in as far as the produce have a reputation, quality and characteristics which tie them to a region in southern Louisiana.  What they will require is a geographically demarcated production area, buy-in and establishment of a collective association of producers, an agreed production code for producers to follow, regulations inclusive of inspection rights and penalties imposed by the state through state legislation, institutional support from the Louisiana Commissioner of Agriculture toward the registration of a federal certification mark for the Creole Tomato GI as well as industry marketing support, registration of a separate collective mark (guarantee logo) of the producers[103] that ties in with membership of the collective to provide additional marketing advantage.

A positive analogy has been drawn to the Vidalia Onions of Georgia[104], which support the Creole Tomato recommendation and its likely success well. VIDALIA[105] is a federal certification mark for ‘fresh onions’ in name of Georgia Department of Agriculture[106]. It is endorsed as follows: ‘The certification mark is intended to be used by persons authorized by certifier, and will certify that the goods in connection with which it is used are yellow Granex type onions and are grown by authorized growers within the Vidalia onion production area in Georgia as defined in the Georgia Vidalia onion act of 1986.’ Georgia enacted the Vidalia Onion Act of 1986[107] which provides for the designation ‘Vidalia Onions’[108], registration of the certification trademark for the sale and promotion[109], rules and regulations for quality standards, grades, packing, handling, labelling, and marketing practices for the marketing of the onions[110], unlawful conduct and civil penalties, shipping date of the marketing season, standards for grades of Vidalia onions, and the establishment of a Vidalia Onion Advisory panel[111]. Persons who wish to grow, pack, process, market and/or sell Vidalia onions, or use the mark Vidalia on onions must enter into a license agreement with the Georgia Department of Agriculture and pay license fees.  Features of the Vidalia scheme include limitations on the production area, limitations on the allowable onion varieties, strict rules regarding labelling and handling, and a right for the Department to inspect any production area or any packaging, processing and storage facility, including transport vehicles. [112]   There are 20 seed varieties of Vidalia onions[113] (as there are many varieties of Creole tomatoes too).

‘Vidalia onion growers consistently command a premium price compared to growers of other spring onions because of the consumer’s perception of Vidalia onions as a higher value product. By protecting the name, quality and image of the Vidalia onion through state ownership … the Vidalia onion is a successful example of producing a branded and premium priced agricultural product.’[114]

  1. CONCLUSION

Louisiana must fully appropriate for its agricultural industry the philosophy and practice of geographical indications as a category of intellectual property rights which embodies the value-adding qualities, characteristics and reputation of goods produced in unique geographical locations and conditions with the addition of local human skill, culture and traditions.  It must devise its future GI strategy free from traditional US concerns in the field of GIs that keep interests tied to the traditional trademark system and narrow consumer interests, and it must look more toward a European model of identification and protection of its GIs. GIs cannot be created by the state from the top down. They exist already. The task for the state and its producers is to identify the potentially successful GIs (such as Creole Tomato); define their geographic production areas; agree upon and codify their production, harvesting and packing processes; protect the viable names (i.e. not CREOLE for all goods, but CREOLE TOMATO for tomatoes), and regulate their use and characteristics specifically at state level; form collective and institutional frameworks to safeguard the GI integrity and the quality of GI goods; and proceed to promote trade and awareness to stimulate consumer preference both in and out of state. It’s more than ‘you say tomayto, and I say tomahto’. I say Creole Tomato. And thereby I not only gain added value for an otherwise commonplace agricultural commodity, but I also celebrate and preserve Louisiana’s regional distinction and culture.

________________________________________________________________

Suzaan Laing

December 2017

 

 

 

[1] Based on the U.S. Census Bureau’s 2016 annual population survey, released in September 2017 – http://247wallst.com/special-report/2017/09/14/americas-richest-and-poorest-states-5/

[2] It has the 3rd highest unemployment rate and the 2nd highest poverty rate in the USA. http://247wallst.com/special-report/2017/09/14/americas-richest-and-poorest-states-5/

[3] https://www.farmflavor.com/louisiana-agriculture/

[4] https://www.farmflavor.com/louisiana-agriculture/

[5] https://www.farmflavor.com/louisiana-agriculture/

[6] https://www.farmflavor.com/louisiana-agriculture/

[7] DWIJEN RANGNEKAR, The Socio-Economics of Geographical Indications – A Review of Empirical Evidence from Europe, May 2004, Intellectual Property Rights and Sustainable Development, UNCTAD-ICTSD Project on IPRs and Sustainable Development, Issue paper no. 8

[8] JUSTIN M. WAGGONER, Acquiring A European Taste for Geographical Indications, 33 Brook. J. Int’L 569 (2008)

[9] BENJAMIN ROBERT HOPPER, Whither (Wither?) Geographical Indications? The Case Against Geographical Indications and for Appellations of Origin in an Era of Glocalization, 16 Chi.-Kent J. Intell. Prop. 210, 212 (2016)

[10] https://www.farmflavor.com/louisiana-agriculture/

[11] ‘The official state cuisine shall be gumbo.’ – La. Stat. Ann. § 49:170.12

[12] KAL RAUSTIALA & STEPHEN R. MUNZER, The Global Struggle over Geographic Indications, 18 Eur. J. Int’L. 337, 338 (2007)

[13] Blakeney M. (2016) Intellectual Property and Food Labelling: Trademarks and Geographical Indications. In: Steier G., Patel K. (eds) International Food Law and Policy. Springer, Cham

[14] Id

[15] Id

[16] Id

[17] http://www.roquefort.fr/en/news/discovering/the-cheese/origins/

[18] Id

[19] Id

[20] Id

[21] Id

[22] Registered under number 0571798 for ‘cheese’

[23] Certification mark registration number 0571798, USPTO trademarks register

[24] Collective trademark registration number 4680603, USPTO trademarks register

[25] https://gruyere.com/en/history/

[26] Annual Report 2016 of the Interprofession Du Gruyer, Message from the President, p3 – see gruyere.com

[27] Certification mark registration number 4398395, USPTO trademarks register

[28] https://en.wikipedia.org/wiki/Darjeeling_tea

[29] Registered under no. IN/PGI/0005/0659 – see European Commission, Agriculture and Rural Development, DOOR database at http://ec.europa.eu/agriculture/quality/door/list.html

[30] http://www.teaboard.gov.in/TEABOARDCSM/NQ==

[31] JUSTIN M. WAGGONER, Acquiring A European Taste for Geographical Indications, 33 Brook. J. Int’L 569 (2008)

[32] BERNARD O’CONNOR, The Law of Geographical Indications, 2004, Cameron May (book), p 27

[33] MARGARET RITZERT, Champagne Is from Champagne: An Economic Justification for Extending Trademark-Level Protection to Wine-Related Geographical Indicators, 37 AIPLA Q.J. 191, 192 (2009)

[34] Section 3, Article 22.1 TRIPS

[35] BENJAMIN ROBERT HOPPER, Whither (Wither?) Geographical Indications? The Case Against Geographical Indications and for Appellations of Origin in an Era of Glocalization, 16 Chi.-Kent J. Intell. Prop. 210, 212 (2016)

[36] MARGARET RITZERT, Champagne Is from Champagne: An Economic Justification for Extending Trademark-Level Protection to Wine-Related Geographical Indicators, 37 AIPLA Q.J. 191, 192 (2009)

[37] www.wipo.int

[38] Article 1(2), Paris Convention for the Protection of Industrial Property, 1883 (last amended 1979), http://www.wipo.int/treaties/en/text.jsp?file_id=288514

[39] Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, 1891, http://www.wipo.int/treaties/en/text.jsp?file_id=286779

[40] www.wipo.int

[41] Article 2, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 1958 (as amended 1979)

[42] Article 3, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 1958 (as amended 1979)

[43] Article 6, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 1958 (as amended 1979)

[44] BERNARD O’CONNOR, The Law of Geographical Indications, 2004, Cameron May (book), p 26

[45] Article 22.2 of TRIPS

[46] IRENE CALBOLI, Time to Say Local Cheese and Smile at Geographical Indications of Origin? International Trade and Local Development in the United States, 53 Hous. L. Rev. 373 (2015):

“A rigorous system of GI protection…would provide more accurate product information to U.S. consumers and could motivate U.S. producers to invest in and maintain high(er) quality local products. In turn, this could lead to more innovation in the U.S. food and agricultural sectors and higher quality products for U.S. consumers.”

[47] Geographical indications protection in the United States, 1A Lindey on Entertainment, Publ. & the Arts § 2:11.60 (3d ed.)

[48] Geographical indications protection in the United States, 1A Lindey on Entertainment, Publ. & the Arts § 2:11.60 (3d ed.)

[49] 15 U.S.C.A. § 1054

[50] (15 U.S.C.A. § 1127)

[51] Geographical indications protection in the United States, 1A Lindey on Entertainment, Publ. & the Arts § 2:11.60 (3d ed.)

[52] Id.

[53] Geographical indications protection in the United States, 1A Lindey on Entertainment, Publ. & the Arts § 2:11.60 (3d ed.)

[54] 15 U.S.C.A. § 1127

[55]Geographical indications protection in the United States, 1A Lindey on Entertainment, Publ. & the Arts § 2:11.60 (3d ed.)

[56] IRENE CALBOLI, Time to Say Local Cheese and Smile at Geographical Indications of Origin? International Trade and Local Development in the United States, 53 Hous. L. Rev. 373 (2015)

[57] MARGARET RITZERT, Champagne Is from Champagne: An Economic Justification for Extending Trademark-Level Protection to Wine-Related Geographical Indicators, 37 AIPLA Q.J. 191, 192 (2009)

[58] http://www.louisianagrown.com/

[59] La. Stat. Ann. § 3:4701

[60] La. Stat. Ann. § 3:4702 A.

[61] La. Stat. Ann. § 3:4702 B.

[62] La. Stat. Ann. § 3:4702 C.

[63] La. Stat. Ann. § 3:4702 D.

[64] La. Stat. Ann. § 3:4703

[65] La. Stat. Ann. § 3:4705

 [66]La. Stat. Ann. § 51:211

[67] Trademark Electronic Search System

[68] The CAROLINA CREOLE trademark has been registered in name of Luquire Family Foods, LLC of South Carolina, for ‘prepared food kits’, since January 2012. Exclusive rights to the word ‘creole’ has been disclaimed in an endorsement on this registration.

[69] LISA BENCH NIEUWVELD, Is This Really About What We Call Our Food or Something Else? The WTO Food Name Case over the Protection of Geographical Indications, 41 Int’l Law. 891, 893 (2007)

[70] JUSTIN M. WAGGONER, Acquiring A European Taste for Geographical Indications, 33 Brook. J. Int’L 569 (2008)

[71] Article 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.” TRIPS Agreement

[72] JUSTIN M. WAGGONER, Acquiring A European Taste for Geographical Indications, 33 Brook. J. Int’L 569 (2008)

[73] Id.

[74] http://ec.europa.eu/trade/policy/countries-and-regions/countries/south-africa/

[75] http://www.thedti.gov.za/business_regulation/SA_EU.jsp

[76] BERNARD O’CONNOR, The Law of Geographical Indications, 2004, Cameron May (book), pp96-1-1

[77] BENJAMIN FARRAND, Two Continents, Divided by Deep Philosophical Waters? Why Geographical Indications Pose a Challenge to the Completion of the TTIP, 7 Eur. J. Risk Reg. 269 (2016)

[78] JUSTIN M. WAGGONER, Acquiring A European Taste for Geographical Indications, 33 Brook. J. Int’L 569 (2008)

[79] BENJAMIN FARRAND, Two Continents, Divided by Deep Philosophical Waters? Why Geographical Indications Pose a Challenge to the Completion of the TTIP, 7 Eur. J. Risk Reg. 269 (2016)

[80] ‘Asda loses battle with Italians over sliced Parma ham’, The Telegraph, 21 May 2003 – see http://www.telegraph.co.uk/news/worldnews/europe/italy/1430756/Asda-loses-battle-with-Italians-over-sliced-Parma-ham.html

[81] http://www.usda-eu.org/topics/geographical-indications/

United States Mission to the European Union, Foreign Agriculture Service, last modified: 26 January 2017

[82] Registered under no. CO/PGI/0005/0467– see European Commission, Agriculture and Rural Development, DOOR database at http://ec.europa.eu/agriculture/quality/door/list.html

[83] Registered under no. IN/PGI/0005/0659 – see European Commission, Agriculture and Rural Development, DOOR database at http://ec.europa.eu/agriculture/quality/door/list.html

[84] MARGARET RITZERT, Champagne Is from Champagne: An Economic Justification for Extending Trademark-Level Protection to Wine-Related Geographical Indicators, 37 AIPLA Q.J. 191, 192 (2009)

[85] La. Stat. Ann. § 3:4701

[86] JUSTIN M. WAGGONER, Acquiring A European Taste for Geographical Indications, 33 Brook. J. Int’L 569 (2008)

[87] La. Stat. Ann. § 51:1265

[88] 448 F.3d 744, 745–53 (5th Cir. 2006)

[89] Section F. of the Cajun Statute, prior to amendment, had read: ‘The provisions of Subsections D and E of this Section shall not infringe upon rights acquired pursuant to any trademark or trade name legally registered with the state of Louisiana as of May 15, 2003.’ House Bill 891 repealed subsection (F).

[90] La. Stat. Ann. § 3:4617

 [91] BARJOLLE, DOMINIQUE; PAUS, MARGUERITE; PERRET, ANNA O., Impacts of Geographical Indications – Review of Methods and Empirical Evidences, Conference Paper/Presentation delivered at International Association of Agricultural Economists (IAAE) in Beijing, China (2009)

[92] Tasso ham is a specialty of south Louisiana cuisine. Tasso is not made from the hind leg of a hog, but rather from the hog’s shoulder, and hence isn’t strictly a ‘ham’. This cut is typically fatty, and because the muscle is constantly used by the animal, has a great deal of flavor. The butt, which will weigh 7 to 8 pounds, is sliced across the grain into pieces about 3 in (7.5 cm) thick. These are dredged in a salt cure, which usually includes nitrites and sugar. The meat is left to cure briefly, only three or four hours, then rinsed, rubbed with a spice mixture containing cayenne pepper and garlic, and hot-smoked until cooked through’ – Wikipedia.

[93] BARJOLLE, D AND SYLVANDER, B. (2002). Some factors of success for “origin labelled products” in Agro-food supply chains in Europe: Market, Internal Resources and Institutions. Économies et Sociétés, 25, 9-10: 1441.

[94] ESTELLE BIENABE, CERKIA BRAMLEY, JOHANN KIRSTEN and DIRK TROSKIE, IPR DURAS Project – Linking Farmers to markets through valorisation of local resources: the case for intellectual property rights of indigenous resources (scientific report) (2006)

 

[95] ESTELLE BIENABE, CERKIA BRAMLEY, JOHANN KIRSTEN and DIRK TROSKIE, IPR DURAS Project – Linking Farmers to markets through valorisation of local resources: the case for intellectual property rights of indigenous resources (scientific report) (2006)

[96] Posted 5:24 PM, June 10, 2015, by Kenny Lopez, What’s a creole tomato? How’s it different? How to pick one? June 11, 2015 (WGNO ABC) http://wgno.com/2015/06/10/whats-a-creole-tomato-hows-it-different-how-to-pick-one/

[97] http://www.southboundgardens.com/blog/creole-tomatoes-are-not-real-not-really-anyway Creole Tomatoes Are Not Real (not really anyway) 6/9/2015

[98] Kathryn Fontenot and Robert Williams, Will the Real Creole Tomato Please Stand Up?, 20 July 2016

http://www.lsuagcenter.com/profiles/lbenedict/articles/page1469026887857

[99] ‘There shall be an official state vegetable plant. The official state vegetable plant shall be the Creole Tomato. Its use on official documents of the state and with the insignia of the state is hereby authorized’ – La. Stat. Ann. § 49:170.11

[100] https://www.frenchmarket.org/event/30th-annual-creole-tomato-festival/

[101] https://coraweb.sos.la.gov/CommercialSearch/CommercialSearch.aspx?Reuse=Yes, search performed on 18 October 2017

[102] An internet search reveals that “Belina, Ltd. was founded in 2011, and is located at 2627 Dauphine St in New Orleans. It employs 2 employees and is generating approximately $69,000.00 in annual revenue”[102]. A future strategy for the GI Creole Tomato must incorporate a plan to either cancel this registration or to procure its assignment through cooperation.

 [103] See the example of the Roquefort producers’ collective mark above

[104] MARIANNA RUBINO & ELIZABETH M. WILLIAMS, Food, Geography & the Law, 54 La. B.J. 12 (2006)

[105] Vidalia is a place name, being the name of a city in Georgia where Vidalia sweet onions were first grown – https://en.wikipedia.org/wiki/Vidalia,_Georgia

[106] Registration number 1709019, with registration date of August 18, 1992

[107] Ga. Code Ann. § 2-14-130

[108] Ga. Code Ann. § 2-14-132 – ‘Only onions which are of the Vidalia onion variety and which are grown within the Vidalia onion production area may be identified, classified, packaged, labeled, or otherwise designated for sale inside or outside this state as Vidalia onions. The term “Vidalia” may be used in connection with the labeling, packaging, classifying, or identifying of onions for sale inside or outside this state only if the onions are of the Vidalia onion variety and are grown in the Vidalia onion production area.’

[109]Ga. Code Ann. § 2-14-132.1 

[110] Ga. Code Ann. § 2-14-133

[111] Ga. Code Ann. § 2-14-138 – ‘The Commissioner shall appoint a Vidalia Onion Advisory Panel, to consist of individuals involved in growing, packing, or growing and packing Vidalia onions; at least one county cooperative extension agent from the Vidalia onion production area; and any other person or persons selected by the Commissioner, for the purpose of rendering advice upon his or her request regarding the exercise of his or her authority pursuant to Code Sections 2-14-136 and 2-14-137. Members of the advisory panel shall receive no compensation for their service as such members.’

[112] MARIANNA RUBINO & ELIZABETH M. WILLIAMS, Food, Geography & the Law, 54 La. B.J. 12 (2006)

[113] http://www.vidaliaonion.org/farming/planting_and_growing_vidalia_onions

[114] Id.

 

 

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