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Hughes on Geographic Indications & Developing Countries

By Lawrence Solum

Justin Hughes (Benjamin N. Cardozo School of Law) has posted Coffee and Chocolate ? Can We Help Developing Country Farmers Through Geographical Indications? on SSRN. Here is the abstract:

Despite extensive provisions for their protection in the TRIPS Agreement, ?geographical indications? (GIs) remain one of the least harmonized and most debated components of the international intellectual property system. Yet to date there has been little discussion as to how economic growth from GI-based marketing occurs. This study explores the potential for GIs as a tool to promote developing country agriculture in two specific products: coffee and chocolate (cocoa). The study explores and refutes a conceptual error that strengthening GI law will, by itself, substantially help developing countries. This error mistakes the piling up of laws for the accumulation of reputational capital, the real way to help developing world agricultural products. Concerning the international debate about strengthening GI law ? that is, the ?extension? of TRIPS Article 23 to protect all GI names without consumer confusion ? the study concludes that such ?usurpation? protection generally will not help developing world agricultural products, although it could help coffee and cocoa producers better control the use of coffee names in ?blends.?

Instead of advocating new legal norms, the study looks at the practical barriers to promotion of coffee and cocoa GIs and concludes that most developing countries which hope to promote their coffees and cocoas through GI-based marketing will need to rely on large corporations to make the investment in building GI consumer awareness. This trend ? western companies using developing world GIs to differentiate their products ? is well underway and moving toward narrower and narrower geographic specifications. These narrower specifications are good for farmers and means that GI-based marketing of coffee and cocoas may actually move closer to a true terroir theory ? without any changes in law. Eschewing any a priori role of the state or central government in GI systems, the study looks at the quality control and marketing experiences of Jamaica (Jamaica Blue Mountain Coffee) and Ethiopia (Harrar, Yirgacheffe, and Sidano), concluding that the weakness of public institutions in many developing countries and the history of central governments extracting rents from farmers should caution us against any GI laws that rely too heavily on government regulation. The study also seeks to debunk the more strident advocacy that GI protection is a good means to protect developing countries? ?traditional knowledge? (TK) and ?traditional cultural expressions? (TCE). The connection between legal protection of GIs and the protection of TK/TCE is complex and includes cases where extremely successful GIs actually are detrimental to local traditions.

Full post as published by Legal Theory Blog on October 01, 2010 (boomark / email).