Trump Administration urged to seek stronger commitments to protect generic cheese names

New steps needed to ensure our trading partners fully vet geographical indications.

Editor’s note: In testimony Wednesday before the Office of the U.S. Trade Representative, U.S. Dairy Export Council's Shawna Morris, who also serves as senior director of the Consortium for Common Food Names, urged the U.S. Administration to secure "firm and explicit commitments" with trading partners to assure the future use of specific generic food and beverage names targeted by EU monopolization efforts, and to reject the use of geographic indications (GIs) as barriers to trade.

Morris suggested the administration build upon the list of common terms established in the U.S.-Mexico-Canada Agreement as a tool to “carry forward aggressively” U.S. market access rights “in the strongest manner possible.”

For more on the testimony, see the news release, “CCFN urges Trump administration to seek stronger commitments on generic names.” In addition, see CCFN’s 21-page written comments filed on Feb. 6 and Morris’s oral testimony.

Here is a portion of Morris' written testimony:

Countries need to fully vet geographical indications targeting common cheese, wine and other food names. 

Unwilling to compete head to head with others in the marketplace on the traditional factors of product quality and pricing, the EU has instead sought to stamp out competition by banning the use in its market and increasingly in other markets the use of commonly used product terms.

Anti-competitive practice

This anti-competitive practice denies U.S. companies a level playing field by prohibiting them from marketing their products with accurate labels that can correctly convey to consumers the type of product they are purchasing. Intellectual property protections serve a vital goal in protecting innovation and company’s investments.

CCFN is not at all opposed to robust IP protections, whether for genuine geographical indications or for other forms of IP such as trademarks. However, the EU’s pursuit of market restrictions for commonly used product terms undermines the integrity and independent functioning of IP systems around the world by pressuring countries to shun their own judgements about which unique terms merit protection and which are commonly used in the market.

Putting intellectual property principles “up for sale” by horse-trading GI protection for other trade concessions runs directly counter to the safeguards that IP systems are intended to uphold for terms already in the common domain and relied upon by a variety of other individuals and companies. And if a bedrock element of IP systems – generic terms – can be effectively nationalized to the benefit of a foreign government, may privately registered IP terms be next on the government auctioning block?

Recognized by U.S. trademark law

U.S. trademark law is clear and well-established about the important role that generic terms play in fostering healthy competition and commercialization of products by a variety of companies. This principle is just as relevant in our market as it is in others around the world.

In a case dating back to 1888 the U.S. Supreme Court found that: “No one can claim protection for the exclusive use of a trade-mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself….Nor can a generic name…be employed as a trade-mark, and the exclusive use of it be entitled to legal protection." The court found that if a trademark could restrict the use of a generic term, “the public would be injured, rather than protected, for competition would be destroyed.” (Goodyear’s Rubber Manufacturing Co. v. Goodyear Rubber Co)

EU's push must be combated 

As will be reflected in our comments, there is a persistent push by the European Union and other European interests to dismantle competition and erect barriers to trade which must be more strongly combated.

Simply put, the EU’s GI policies are anti-trade, anti-competitive, anti-free market, and anti-intellectual property, and are being paid for by consumers, producers, and its trading partners and third parties. This is particularly evident in countries such as the U.S. that experienced waves of European immigration in the past or in developing countries that are former European colonies.

All the while the EU professes a commitment to promoting trade, competitiveness, free markets and the intellectual property system, it is instead misusing those principles to gain advantages for its own producers. As a result, countries around the globe are under pressure from EU trade negotiators to ignore the rights of third-party countries (including the U.S.) and non-EU companies, and to sacrifice basic intellectual property principles, in order to grant EU producers monopolies in their country in exchange for market access into the EU.

In addition, users of common food names are being exposed to significant legal costs and jeopardy as entities supported by European governments attempt to register GIs, trademarks, and threaten litigation in order to clear the field of non-EU competitors in many markets, including the U.S.

The EU’s agenda is not limited to bilateral abuse as they also seek to undermine and even usurp individual countries’ IP systems through their World Intellectual Property Organization (WIPO) GI efforts. American companies, their employees and supplying farmers are harmed greatly by these EU efforts as barriers to the trade of these products and increased risks of doing business result in lost sales, jobs and economic development.

Not a "victimless wrong"

The U.S. is not alone in confronting the impact of these actions; workers and farmers in a number of other countries around the world, including developing countries, are also impacted by these EU efforts and their trading partners’ acquiescence.

In addition to GI-specific concerns, we are also concerned about efforts to use similar types of regulatory restrictions such as the EU’s “traditional terms” program and its “traditional specialty guarantee” program to impose limits on the fair use of common food terms.

What the EU is perpetrating on the world is not a victimless wrong. Their actions impact real U.S. companies employing American manufacturing sector workers who are making their goods with American farmers’ products. Moreover, they specifically undermine the value of market access concessions gained by the U.S. in its trade agreements with these countries by barring producers outside the EU from using terms that have become the common names for various types of products.

Simply put, what is the value of the U.S. gaining no or low tariffs into a country’s market in an FTA if U.S. producers are then banned from selling that product into that country due to their later GI concessions to the EU?

Efforts underway to work with USTR

A catalogue of profiles of some of the companies that are negatively impacted by the EU’s GI strategy can be found on our website: http://www.commonfoodnames.com/un-common-heroes/.

We look forward to continuing to work closely with the Office of the United States Trade Representative (USTR), the United States Patent and Trademark Office (PTO), the United State Department of Agriculture (USDA), the Department of Commerce, and the Department of State to ensure that our trading partners live up to their commitments under the World Trade Organization (WTO) and bilateral trade agreements with respect to common food names and to use all necessary tools to dismantle illegitimate trade barriers that the EU is working to erect through their bilateral trade negotiations and in international forums.

Shawna Morris is vice president of trade policy at the U.S. Dairy Export Council.

Learn more:

• Dairy Industry Applauds Secretary Perdue’s Commitment to Protect Common Names; Perdue Points at GIs as Trade Barriers
• (Video) Vilsack Tells Congress: `We Can't Afford to Lose This Race With EU' Over Cheese Names
• EU’s Global Move to Control Common Food Names Threatens U.S. Cheesemakers

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The U.S. Dairy Export Council fosters collaborative industry partnerships with processors, trading companies and others to enhance global demand for U.S. dairy products and ingredients. USDEC is primarily supported by Dairy Management Inc. through the dairy farmer checkoff. How to republish this post.