Wine Law and Policy From National Terroirs to a Global Market 2020033722, 2020033723, 9789004438309, 9789004438316
194 55 29MB
English Pages [837] Year 2020
Half Title
Title Page
Copyright Page
Contents
Abbreviations
Illustrations
Notes on Contributors
Foreword: Apéritif
Chapter 1 An Introduction to Wine Regulation in a Globalized Market: Prospects and Limits of Wine Governance
1 Introduction
2 The Wine Market: Past, Present and Future in a Global Economy
3 The Role of Intellectual Property Law in the Wine Industry
4 Beyond the Market: Consumer Expectations and Social Concerns
Part 1 The Wine Market: Past, Present and Future In a Global Economy
Chapter 2 The Rise and Fall of the World’s Largest Wine Exporter – and Its Institutional Legacy
1 Introduction1
2 The Growth of the Wine Industry in Algeria in the Late 19th Century
2.1 Technological Progress in Wine Production
2.2 Devastation of French Vineyards
2.3 Expansion of Algerian Wine Production and Exports
3 Recovery of French Production and Government Regulations in the Early 20th Century
3.1 Raising Import Tariffs
3.2 The Introduction of French “Quality Regulations”
4 Further Expansion in Algeria and More Regulations in France
5 The Collapse of the Wine Industry in Algeria
5.1 Export Constraints after Independence
5.2 Nationalization and Poor Management
5.3 The Arab Spring and the Future of Algeria’s Wine Industry
6 Conclusion: the Institutional Legacy of Algerian Wine
Chapter 3 Tradition, Territory, and Terroir in French Wine: Role, Function, and Purpose of the Institut National De l’origine Et de la Qualité in the French Wine Law Model
1 Introduction
2 From the Wine Crisis at the End of the 20th Century to the Creation of the cnao in 1935
2.1 1905: the Premises of the Regulation Tending towards an Administrative Framework for Quality Products
2.2 1911: towards the Law of 6 May 1919
2.3 1927: Legislative Recognition between Origin and Variety of Grape
3 The Creation of the cnao
3.1 1935, a Pivotal Year in the Creation of an Organization Dedicated to the Protection of Registered Designations of Origin
3.1.1 The Initiative for the Creation of the cnao
3.1.2 The Initial Mission of the cnao
3.2 Towards the Current form of the inao
4 The Current Organization of inao
4.1 inao Organization
4.1.1 The Permanent Council (Conseil Permanent)
4.1.2 The National Committees (Les Comités Nationaux)
4.1.3 The Approval and Control Board (Le Conseil des Agréments et des Contrôles)
4.1.4 The Regional Committees (Les Comités Régionaux)
4.2 Financing of inao
4.3 inao’s Missions and Competences
4.4 The Official Quality Signs Framed by inao
5 The Protection of pdo/aoc s in France Focused on Innovation and the Renewal of Production Methods
5.1 inao Control over Registered Designation of Origin
5.2 Actions Implemented by inao in 2018
5.2.1 The Evolution of Vine Varieties, a Freedom Given to Winegrowers to Fight against Climatic Hazards
5.2.2 Individual Supplementary Volume, Better Management of the Wine-Growing Holding
6 Conclusion
Chapter 4 Exploring Italy’s Wine Law Reforms: Experiences, Challenges, and Prospects
1 Introduction
2 A Brief History of Wine Law in Italy
2.1 The Influence of the EU on Italian Wine Legislation
2.2 The Progressive Transformation of Italian Wine Law
2.3 A New Framework: the Act of 12 December 2016
3 The New Italian Law on Wines and Vineyards
3.1 The Establishment of a Grapevine Register
3.2 The Storage of Oenological and Chemical Products
3.3 The Designation of Origin and Geographical Indication
3.4 The Control Instruments
3.5 The Impact of the EU Wine Legislation
4 Understanding Italian Wines: the doc and docg Wines
4.1 The Tradition of Geographical Origin
4.2 The First Protection Consortiums
4.3 The Birth of “Quality Wines Produced in Designated Areas”
5 Designations of Origin and Geographical Indications in Italian Law
5.1 The Consolidated Wine Act: Scope and Significance
5.2 The Consolidated Wine Act: Some Key Innovations
6 Conclusion
Annex 1
Chapter 5 “Innovative Tradition”: Austrian Wine Regulation between Past and Future
1 Introduction
2 The Context of Austrian Wine Regulation: from the Global to the National – from Adulteration to Acclaim
Quantitative Limitation [Mengenbeschränkung]
3 The Austrian Wine Act 2009: from the Past to the Future
4 Reconciliation of Opposites: Innovation from Tradition
Chapter 6 Between Wines and Spirits: Classification Challenges of Polish ‘Fruit Wine’-based Products in EU Perspective
1 Introduction
2 Particular Aspects of the Polish Wine Market
3 The Development of Polish Regulations of Fruit Wines in the Context of EU Economic and Legal Policies
4 Specific Regulations for Fruit Wine and Other Fermented Products as Enacted in Poland and Differences with Regard to Provisions on Grape Wines
5 Classification of Products Based on Non-grape Fruits Fermentation and the EU Law
5.1 Inconsistencies of the Combined Nomenclature
5.2 Polish Application
6 Conclusion
Chapter 7 Wine Law in Australia: Challenges of Local Identity in a Global Marketplace
1 Introduction
2 The Contemporary Australian Wine Industry
2.1 Defining and Regulating Wine in Australia
3 Contemporary Regulatory Challenges
3.1 The Case of “Alcopops” and Low Alcohol Wines
3.2 Protection of Geographical Indications
3.3 Access to Export Markets and Engaging International Law
4 Conclusion
Chapter 8 Libiam Ne’ Lieti Calici: EU and Chinese Policies in Support of Wine Production
1 Introduction1
2 History of Grapevine and Winemaking
3 Wine Culture
4 The Relationship between Production, Consumption and Trade
5 Data on Global Wine Production, Consumption and Trade
6 Wine Production, Consumption and Trade in the EU
6.1 Data on EU Wine Production, Consumption and Trade
6.2 EU Wine Regions
7 China Wine Production, Consumption and Trade
7.1 Data on China Wine Production, Consumption and Trade
7.2 China Wine Regions
8 EU and China Wine Policies
8.1 Introduction
8.1.1 Types of Wine Regulations
8.2 EU Wine Policies
8.3 China Wine Policies
8.4 Reflections on EU and China Policies in Support of Wine Production
9 Conclusions
Chapter 9 Wine and Liquor Laws in Canada – Trends and Regulatory Challenges
1 Introduction
2 An Overview of the Canadian Regulatory Landscape and the Provincial Liquor Control Regimes That Govern It
2.1 Characteristics of the Canadian Market for Wine and Other Liquor Products
2.1.1 Regulation is De-centralized and Differs Across Canada’s Provinces
2.1.2 The Provincial Governments Have Monopolies on Wholesale Supply and Generally Play a Dominant Role in Retail Supply
2.1.3 The Provincial Governments Use the Distribution Monopolies to Generate Substantial Government Revenue through Mark-ups and Additional Fees on Wine and Liquor Sales
2.1.4 Each Provincial Government Has a Powerful Import Monopoly
2.1.5 Both Federal and Provincial Measures Provide Support for Domestic and/or Local Producers
2.2 The Constitutional Context of the Canadian Regulatory Landscape
2.3 The Importation of Intoxicating Liquors Act: Delegating Federal Control over Imports of Wine and Other Alcoholic Beverages to the Provinces Since 1928 …
2.4 … But Permitting Unrestricted Inter-Provincial Trade Since 2019
3 Domestic Challenges to Inter-provincial Trade Restrictions
3.1 The Supreme Court of Canada’s Decision in R. v. Comeau
3.2 Steam Whistle Brewing Inc. v. Alberta Gaming and Liquor Commission
3.3 Artisan Ales Consulting Inc. v. Government of Alberta re: Mark-ups on Beer
4 International Trade Negotiations and Dispute Settlement Proceedings
4.1 Canada’s Commitments to the EU under the Comprehensive Economic and Trade Agreement (ceta) concerning Mark-ups and Cost-of-Service (cos) Differentials
4.2 Challenges before the wto Dispute Settlement Body
4.2.1 The United States’ wto Challenge against Restrictions on Wine Sales in BC Grocery Stores
4.2.2 Australia’s wto Challenge against Canadian Federal and Provincial Measures Concerning the Sale of Wine
5 Conclusion
Chapter 10 The Protection of Foreign Investment in the Wine Sector
1 Introduction
2 The Economic Reality of Foreign Direct Investment in the Wine Sector
2.1 Specificities of the Wine Industry as a Market for Foreign Direct Investors
2.1.1 Definition of Foreign Direct Investment and Investor
2.1.2 Typology of the Actors in the Wine Industry
2.1.3 The Impact of Globalization on the Actors of the Wine Industry
2.1.4 The Impact of the Wine Industry’s Recent Mutations on Investment Decisions
2.2 Identification of fdi in the Wine Sector
2.2.1 The Criteria of “International Diversification” in Wine Investments
2.2.2 Identification of Foreign Direct Investors in the Wine Sector
2.2.3 Patrimonial Investors in the Wine Sector
2.2.4 Industrial Investors in the Wine Sector
3 Selected Overview of the Regulatory Landscape of Foreign Direct Investment and Its Relevant Features to the Wine Industry
3.1 Restrictive Regimes: the Example of Australia
3.1.1 The Scope of Agricultural Land and Agribusiness
3.1.2 The Notification Requirements on Foreign Investors
3.1.3 The Grounds for Screening Foreign Investment
3.2 Open Regimes and their Limits: the Case of the ue
3.2.1 Grounds for Screening Limited to Security and Public Order
3.2.2 A Mechanism Based on Cooperation among ms and the Commission, Rather than Notification from the Investor
3.2.3 A Limited Impact on the Wine Sector
3.3 Opening Regimes: China and Its New Law on Foreign Investment
3.3.1 An Objective of Protecting Foreign Investment and Promoting National Treatment, Subject to Restrictions
3.3.2 Impact on Foreign Investment in General
3.3.3 Impact on Foreign Investment in the Wine Sector in Particular
4 The Protection of Foreign Investment in the Wine Sector
4.1 Protection of Foreign Investment under International Treaties
4.1.1 Requirements to Be Met to Invoke Protection under Foreign Investment Treaties
4.1.2 Standards of Protection to Be Afforded by States to Foreign Investors
4.2 Wine-related Investment and bit Disputes
4.3 Agricultural or F&B Disputes Resolved through Investor-State Dispute Settlement
5 Conclusion
Part 2 The Role of Intellectual Property Law in the Wine Market
Chapter 11 Grafting the Old and New World: Towards a Universal Trademark Register that Cancels Generic igo Terms
1 Introduction
1.1 Protecting gi s Using the Trademark System
1.2 Protecting Appellations of Origin Via the Sui Generis System
2 Mapping the Legal Playing Field
2.1 Group 1: “Agnostic” Protection of igo s
2.1.1 Extension of Products and Geographical Scope
2.1.2 Higher Standards for Wine
2.2 Group 2: Protection Via Sui Generis Systems
2.2.1 EU pdo/pgi System
2.2.2 EU Subsidiarity as a Means to Enhance Innovation
2.3 Group 3: Protection Via Co-Existential Treaties
3 fta s that Include igo Provisions and Bilateral igo Agreements
3.1 Sino-EU Bilateral gi Agreements
3.2 US-China fta
3.3 igo Protection in China
4 Conclusion
Chapter 12 The Protection of Traditional Terms for Wines in the European Union and Beyond
1 Introduction
2 What Are Traditional Terms?
2.1 Types of Traditional Terms
2.2 Objectives
2.3 Relationship with Intellectual Property Rights
3 Protection of Traditional Terms in the EU
3.1 Application for a Traditional Term
3.2 Grounds of Refusal of Traditional Terms within the EU
3.3 Objection Procedure
3.4 Relationship with Trademarks
3.5 Relationship with Homonymous Traditional Terms
3.6 Scope of Protection
3.7 Enforcement
4 Protection of Traditional Terms and Third Countries
4.1 Protection of Traditional Terms from Third Countries through Direct Application
4.2 Protection of Traditional Terms through Bilateral Agreements
4.2.1 Mutual Recognition
4.2.2 Protection of EU Traditional Terms and Dispensations for Third Country Traditional Terms
4.2.3 No Protection for EU Traditional Terms but Temporary Dispensations of Third Country Traditional Terms
4.3 Ongoing Conflicts regarding the Protection of Traditional Terms from Third Countries
4.3.1 Discrimination among Third Countries and Inconsistency with wto Obligations
4.3.2 Excessive Bureaucratic Delays and Lack of Transparency
5 Conclusion
Chapter 13 The Barolo Appellation of Origin in the Global Market
1 Introduction
2 History of the Laws Protecting Barolo
3 The Individual and the Collective Source of Reputation
4 The Protection of the Barolo Reputation
5 The Evolution of the Region
6 Conclusion
Chapter 14 “Pure Michigan” and “Napa Valley 100%”: Is Protection of American Origin Wines as Geographic Indications on Fertile Ground?
1 Introduction1
2 Multilateral Treatment of Geographical Indications
2.1 Paris Convention
2.2 Madrid Agreement
2.3 Inter-American Convention
2.4 Lisbon Agreement
2.5 trips Agreement
2.6 Wine Trade Agreement
3 Protection of gi s in the U.S.
4 The Growth of the American Products Movement
4.1 Michigan Wine: Not So “Pure Michigan”
4.2 California and Oregon: Strict Standards Regimes
4.3 State gi Regulations: Still Permissible under U.S. Constitution?
4.4 Enforcement at the Federal Level of ava s
5 Conclusion
Chapter 15 Australia Corked Its Champagne and So Should We: Enforcing Stricter Protection for Semi-Generic Wines in the United States
1 Introduction
2 Background
2.1 Legal Protection of Wine in the United States
2.2 Geographical Indications and the trips Agreement
3 The Agreement between Australia and the European Community on Trade in Wine
3.1 The 2008 Wine Trade Agreement
3.2 Additional Benefits from the 2008 Wine Trade Agreement
4 The Agreement between the United States and the European Community on Trade in Wine
5 Authorizing a United States Wine Trade Agreement in Compliance with the European gi System
5.1 The 2008 Wine Trade Agreement between Australia and the EU and Its Adaptability for the United States
5.2 The Benefits of Forming a New Wine Trade Agreement
6 Establishing a Framework for gi Adaptation
6.1 Constructing a New Wine Trade Agreement between the United States and the European Community
6.2 Establishing a Transitional Period for All Named gi s
6.3 Creating a Multilateral Register for Wines
6.4 Monitoring the Environment through Trade Organizations and Initiating Conferences to Support gi Protection
7 Conclusion
Chapter 16 Integrating the Protection of Foreign Geographical Indications in Federal States: Transsystemic Study of gi Protection in Canada, the USA, and Germany
1 Introduction
2 Supra-Normative Commitments to Protect gi s: Paris Convention, trip s, and Free Trade Agreements
2.1 Paris Convention for the Protection of Industrial Property (“Paris Convention”)
2.2 Agreement on Trade-Related Aspects of Intellectual Property Rights
2.3 Canada-European Union Comprehensive Economic and Trade Agreement (“ceta”)
2.4 Canada-United States of America-United Mexican States Agreement (a.k.a. “nafta 2.0”)(“cusma”)
3 Response to Implementing gi Obligations in Federal States
3.1 Trademark Law as the Panacea for the US and Canada?
3.1.1 US
3.1.2 Canada
3.1.3 Before the Conclusion of the trip s
3.1.4 Following Conclusion of the trip s
3.1.5 Following Conclusion of the ceta
3.2 EU Law with a Dash of Local Trademark Law for Germany?
3.3 Unfair Competition Claims as the Roots and True Common Law for Federal States?
4 Conclusion
Chapter 17 The Protection of Vines, Grapes and Wine under Plant Variety Rights Law, with a Particular Focus on the EU
1 Introductory Comments
2 Vines are Propagating Material, Grapes are Harvested Material
3 Wine May Be a Product Made/Obtained Directly from Grapes
4 Conditional Exercise of Exclusive Rights in Respect of Harvested Material (and Products Directly Made/Obtained Therefrom)
4.1 “Unauthorized Use”
4.1.1 The upov Explanatory Notes on Harvested Material and the Doctrine of Exhaustion
4.1.2 Another Layer of Complexity: the cjeu Nadorcott Decision
4.2 Reasonable Opportunity to Exercise Plant Variety Rights against Propagating Material Further Upstream
5 Conclusion
Chapter 18 Trade Dress Regulation and Protection Rules Applying to Wine in Turkey
1 Introduction
2 The Main Regulatory Bodies in Wine Regulation
2.1 Market Regulation: Alcohol Department of the Ministry of Agriculture and Forestry under the Ministry of Agriculture and Forestry
2.2 The Ministry of Health
2.2.1 Duties of the Ministry of Health Deriving from the Tobacco and Alcohol Market Regulation
2.2.2 Duties of the Ministry of Health Deriving from Public Health Protection Regulation
2.3 Regulation of the Turkish Codex Alimentarius of the Ministry of Forestry and Agriculture
2.4 Ministry of Trade, General Directorate of Consumer Protection and Market Supervision, Advertisement Board
2.5 Radio and Television Supreme Council
2.5.1 Regulation Pertaining to Alcoholic Beverages
2.5.2 Sanctions Applicable against Violations of the rtsc’s Regulation on Alcoholic Beverages
2.5.3 Recent Developments Concerning Online Media Service Platforms
3 Trade Dress Regulation and Protection
3.1 Restrictive Trade Dress Rules Applying Specifically to Wine
3.1.2 Communiqué Regarding the Warning Messages on the Packaging of Alcoholic Beverages Dated August 11, 2013
3.1.3 Regulation Regarding the Sale and Servicing of Tobacco Products and Alcoholic Beverages Dated January 7, 2011
3.1.4 By-Law Regarding the Special Qualities of Foodstuffs and Other Goods and Disposables in Relation to Public Health (“By-Law”)
3.1.5 Turkish Codex Alimentarius Wine Communiqué
3.1.6 Turkish Codex Alimentarius Communiqué on Aromatized Wine, Beverages Based on Aromatized Wine, and Aromatized Wine Cocktail
3.2 Trade Dress Protection of Wine
3.2.1 Protection of Trade Dress through Trademark Registration
3.2.1.1 An Overview of Trademark Registration in Turkey
3.2.1.2 Specific Statutory Rules Applying to Wine under the Turkish Trademark Law
3.2.1.3 The Approach of turkpatent and Turkish Courts Regarding Trademarks Covering Wine and Wine-related Goods and Services and Trademarks Representing Wine-related Elements
3.2.2 Protection of Trade Dress through Design Registration
3.2.3 Protection of Trade Dress through Unfair Competition Provisions
3.2.4 Protection Via Copyright Law
4 Conclusion
Chapter 19 Patent Search and Analysis in the Wine Industry: A Guided Tour from Vineyards to Your Table
1 Introduction
2 Patent Classification Codes Covering Wine-Related Topics
2.1 Essential ipc & cpc Codes Describing Inventions in the Wine Industry
2.2 Using Essential Wine ipc & cpc Codes to Improve ipc/cpc-based Searches
2.3 Using Essential Wine ipc & cpc Codes to Improve Keyword-Based Searches
3 Trends in Wine-Related Patent Filings at Main Patent Offices
3.1 The pct System and Wine-Related Global Trends at a Global Patent Office
3.2 The epc System: Filing and Granting Trends at a Patent Intergovernmental Authority
3.3 Trends in Establishing Patent Rights in Wine Industry at Selected Patent Offices Worldwide
4 Conclusions
Part 3 Wine beyond the Market: Health Policy, Ethical and Social Issues
Chapter 20 On the Jurisprudence of Wine’s Journeys from National Terroirs to a Global Market: Places of Normativity, Mythology and Justice in London and Aotearoa/ New Zealand
1 Pepeha (Māori for ‘Introductions’)1
2 Images from Walking Leytonstone: Experiencing the Global Market
3 Has New Zealand Got a ‘National Terroir’? If So Would It Be that of New Zealand or of Aotearoa/New Zealand?
4 By Way of a Conclusion, an Exercise in Applying Turangawaewae: a Brief Walk Around the Trade Tasting
5 Conclusion
Chapter 21 Protecting Wine Packaging as a Trademark: Why the Substantial Value Exclusion Makes the Task Unreasonably Burdensome
1 Introduction
2 Protecting Packaging in the Wine Sector: Shapes at the Borders between Trademarks and Designs
3 Inconsistencies in Demarcating the Scope of Application of the Substantial Value Ground for Refusal
4 Overview of Case-Law Concerning Registrability and Protection of Wine Packaging and Bottles as a Trademark
5 Different Grounds for Refusal, Similar Assessment
6 Limiting the “Loudspeaker Test” to the Artistic Value Assessment
7 Conclusion: Is the Substantial Value Ground for Refusal Still Reasonable?
Chapter 22 Prošek or Prosecco: Intellectual Property or Intangible Cultural Heritage?
1 The Dispute – Prošek or Prosecco?1
2 What Is Cultural Heritage?
2.1 What Is Intangible Cultural Heritage?
2.2 Development of Recognition and Protection for Intangible Cultural Heritage
2.3 The Convention for the Safeguarding of Intangible Cultural Heritage 2003
3.0 Are Prosecco and Prošek Cultural Heritage?
4 Protecting Wine as Intellectual Property?
5 The European Union and Intangible Cultural Heritage
6 The Conflict: Intellectual Property v. Intangible Cultural Heritage
7 The Future: Cultural Appropriation and Cultural Theft
8 Conclusion
Chapter 23 The Use of All Wines: A Legal Analysis for Conservative Judaism
1 Introduction
2 Issues of Jewish Dietary Laws (Kashrut) in the Making of Wine: Clarifying the Wine
2.1 Clarifying the Wine through Fining It
2.2 Clarifying Wine through Filtration
2.3 The Halakhic (Jewish Legal) Problems Involved in Clarifying Wine
3 Halakhic Principles and Precedents Relevant to Fining Wine
3.1 “No Prior Nullification of Remainders” (Ain Mevatlin Issur Mi’likhathilah)
3.2 “An Unintended Result” (B’aino Mitkaven)
3.3 Permissive Precedents
3.4 Possible Stringencies
3.5 Evaluating Contemporary Wine Making in Light of the Precedents
4 The Issue of Gentile Wine (Stam Yeinam)
4.1 Rabbi Silverman’s 1964 Responsum
4.2 The Prohibitions of Wine Made by Gentiles are No Longer Relevant
5 Producing Wine on the Sabbath
6 Lessons
6.1 The Individual
6.2 Conservative Synagogues
6.3 Communal Institutions
7 Conclusion
Chapter 24 Risk Management in the Wine Supply Chain
1 Introduction
2 Risk Management in Context
2.1 Climatic Risks
2.2 Wine Production Processes and Product Liability Risks
2.3 Product Liability Rules and Legislation: State of the Art and Future Developments
2.4 Commercial Risks and Transaction Costs
3 Risk Management and Wine
4 Wine Industry and Supply Chain Risk Management (“scrm”)
4.1 scrm: Best Practices
Chapter 25 The Grass is Greener on the Other Side: Biodynamic Wines and Trademarks, the Quest for Answers
1 Introduction1
1.1 A Brief History of Organic Wines
1.2 Persia
1.3 Georgia
1.4 Turkey
1.5 Jordan
1.6 Greece
2 An Introduction of the Concept of Biodynamic Wines
2.1 What Is Organic Wine?
2.2 Certification of Organic Wine
2.3 Definition of Organic Production, Including Wines
3 Trade Marks for Organic Wines, Certification Marks and Labels: Reputation, Brand and a Deceptive Attitude to Transparency
4 Conclusion
Chapter 26 In Vino Veritas: Blockchain as a Viable Solution for Combating Counterfeit Wines in China
1 Introduction
2 Wine in the Chinese Context
2.1 Issues of Counterfeit Wine
2.2 Regulation of Wine in China
2.2.1 Food Safety Law
2.2.2 Trademark Law
2.3 Anti-Counterfeiting Methods without Blockchain
3 Blockchain – a New Technology to Combat Counterfeit Wine
3.1 Blockchain Demystified
3.2 Characteristics of Blockchain
3.2.1 Data Encryption66
3.2.2 Verification of Transactions
3.2.3 Immutability
3.2.4 Traceability
3.3 Blockchain in Action
4 Ways Forward for Wider Blockchain Adoption
4.1 Blockchain Transparency, Interoperability and Data Accessibility
4.2 Blockchain Readability and Consumer Confidence
4.3 Resolving the Issue of the “Last Mile”
5 Conclusion
Index
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Wine Law and Policy
Wine Law and Policy From National Terroirs to a Global Market Edited by
Julien Chaisse, Fernando Dias Simões, Danny Friedmann
LEIDEN | BOSTON
Cover illustration: Vincent Van Gogh: The Red Vineyard/Red Vineyard at Arles (Montmajour), 1888 Library of Congress Cataloging-in-Publication Data Names: Chaisse, Julien, editor. | Simões, Fernando Dias, editor. | Friedmann, Danny, editor. Title: Wine law and policy : from national terroirs to a global market / edited by Julien Chaisse, Fernando Dias Simões, Danny Friedmann. Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] | Includes index. Identifiers: LCCN 2020033722 (print) | LCCN 2020033723 (ebook) | ISBN 9789004438309 (hardback) | ISBN 9789004438316 (ebook) Subjects: LCSH: Wine and wine making–Law and legislation. | Wine and wine making–Marks of origin. | Wine industry–Law and legislation. Classification: LCC K3935 .W56 2021 (print) | LCC K3935 (ebook) | DDC 343.08/556632–dc23 LC record available at https://lccn.loc.gov/2020033722 LC ebook record available at https://lccn.loc.gov/2020033723
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-9 0-0 4-4 3830-9 (hardback) isbn 978-9 0-0 4-4 3831-6 (e-book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.
Contents
List of Abbreviations ix List of Illustrations xi Notes on Contributors xiii Foreword: Apéritif xxvii Christopher Heath
1
An Introduction to Wine Regulation in a Globalized Market Prospects and Limits of Wine Governance 1 Julien Chaisse, Fernando Dias Simões, and Danny Friedmann
part 1 The Wine Market: Past, Present and Future In a Global Economy 2
The Rise and Fall of the World’s Largest Wine Exporter –and Its Institutional Legacy 35 Giulia Meloni and Johan Swinnen
3
Tradition, Territory, and Terroir in French Wine Role, Function, and Purpose of the Institut National De l’origine Et de la Qualité in the French Wine Law Model 70 Fabrice Giordano
4
Exploring Italy’s Wine Law Reforms Experiences, Challenges, and Prospects 99 Antonio Rossi and Duilio Cortassa
5
“Innovative Tradition” Austrian Wine Regulation between Past and Future 127 Iris Eisenberger and Rostam J. Neuwirth
6
Between Wines and Spirits Classification Challenges of Polish ‘Fruit Wine’-based Products in EU Perspective 146 Joanna Pawlikowska, Aleksander Stępkowski, and Leszek Wiwała
vi Contents 7
Wine Law in Australia Challenges of Local Identity in a Global Marketplace 175 Lisa Toohey
8
Libiam Ne’ Lieti Calici EU and Chinese Policies in Support of Wine Production 197 Flavia Marisi
9
Wine and Liquor Laws in Canada – Trends and Regulatory Challenges 239 Daniel Hohnstein
10
The Protection of Foreign Investment in the Wine Sector 274 Laurence Ponty, Baptiste Rigaudeau, and Jean-Robin Costargent
part 2 The Role of Intellectual Property Law in the Wine Market 11
Grafting the Old and New World Towards a Universal Trademark Register that Cancels Generic igo Terms 311 Danny Friedmann
12
The Protection of Traditional Terms for Wines in the European Union and Beyond 346 Anke Moerland and Ramyaa Bhadauria
13
The Barolo Appellation of Origin in the Global Market 373 Anisha Mistry and Luca Valente
14
“Pure Michigan” and “Napa Valley 100%” Is Protection of American Origin Wines as Geographic Indications on Fertile Ground? 392 Rebeccah Gan
15
Australia Corked Its Champagne and So Should We Enforcing Stricter Protection for Semi-Generic Wines in the United States 415 Lindsey A. Zahn
Contents
16
Integrating the Protection of Foreign Geographical Indications in Federal States Transsystemic Study of gi Protection in Canada, the USA, and Germany 452 Nicolas Charest
17
The Protection of Vines, Grapes and Wine under Plant Variety Rights Law, with a Particular Focus on the EU 499 Philippe de Jong
18
Trade Dress Regulation and Protection Rules Applying to Wine in Turkey 523 Burak Keskin
19
Patent Search and Analysis in the Wine Industry A Guided Tour from Vineyards to Your Table 553 Luca Falciola
vii
part 3 Wine beyond the Market: Health Policy, Ethical and Social Issues 20 On the Jurisprudence of Wine’s Journeys from National Terroirs to a Global Market Places of Normativity, Mythology and Justice in London and Aotearoa/New Zealand 593 Wayne Morrison 21
Protecting Wine Packaging as a Trademark Why the Substantial Value Exclusion Makes the Task Unreasonably Burdensome 626 Jacopo Ciani
22
Prošek or Prosecco Intellectual Property or Intangible Cultural Heritage? 651 Steven Gallagher
23
The Use of All Wines A Legal Analysis for Conservative Judaism 682 Elliot N. Dorff
viii Contents 24 Risk Management in the Wine Supply Chain 710 Diego Saluzzo 25
The Grass is Greener on the Other Side Biodynamic Wines and Trademarks, the Quest for Answers 749 Ana Penteado
26 In Vino Veritas Blockchain as a Viable Solution for Combating Counterfeit Wines in China 777 Jerry I-H Hsiao
Index 795
Abbreviations adr Alternative Dispute Resolution apec Asia-Pacific Economic Cooperation asean Association of Southeast Asian Nations bit Bilateral Investment Treaty bri Belt and Road ceta Comprehensive Economic and Trade Agreement cjeu Court of Justice of the European Union cpc Cooperative Patent Classification csr Corporation Social Responsibility doc Denominazione di Origine Controllata docg Denominazione di Origine Controllata e Garantita dsu Dispute Settlement Understanding eu European Union ecj European Court of Justice fdi Foreign Direct Investment fta Free Trade Agreement ftz Free Trade Zone gatt General Agreement on Tariffs and Trade gats General Agreement on Trade in Services gdp Gross Domestic Product gi Geographical Indications icc International Chamber of Commerce icj International Court of Justice icsid International Centre for Settlement of Investment Disputes igo Indications of Geographical Origin iia International Investment Agreements inao Institut National de l’Origine et de la Qualité ipc International Patent Classification isds Investor-State Dispute Settlement mfn Most Favoured Nation mne Multinational Enterprises nafta North American Free Trade Agreement ngo Non-governmental Organisation obor One Belt One Road oecd Organisation for Economic Co-Operation and Development oiv International Organisation of Vine and Wine (Organisation Internationale de la Vigne et du Vin; oiv)
x Abbreviations prc People’s Republic of China rcep Regional Comprehensive Economic Partnership soe State-Owned Enterprise sar Special Administrative Regions tfeu Treaty on the Functioning of the European Union trims Agreement on Trade-Related Investment Measures trip s Agreement on Trade-Related Aspects of Intellectual Property Rights UN United Nations uncitral United Nations Commission on International Trade Law unctad United Nations Conference on Trade and Development upov International Union for the Protection of New Varieties of Plants US United States of America usmca United States-Mexico-Canada Agreement who World Health Organization wipo World Intellectual Property Organization wto World Trade Organization
Illustrations Figures 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 3.1 3.2 3.3 3.4 3.5 19.1 19.2 19.3 19.4 19.5
Wine production in Algeria, 1860–2010 (in million hectoliters) 36 Wine production in France, 1860–2010 (in million hectoliters) 40 French imports and exports of wine and Algerian wine production, 1860–1920 (in million hectoliters) 43 Algerian cultivated vine area and labor force, 1860–1960 44 French imports of bulk wines by major exporting countries (in million hectoliters) 45 cpi-deflated wine prices in France, 1865–1959 (in old Francs per hectoliter) 48 French import tariffs on bulk wine imports, 1877–1934 (in %) 49 Yields in France and Algeria, 1860–1960 (in hectoliters of wine per hectare) 55 The pdo/p do (aop/a oc) 87 The pgi (igp) 88 The red label 90 Organic farming 91 Traditional specialities guaranteed (tsg) 93 The ipc/c pc GROUP cloud 570 The “Word Cloud” of essential wine ipc & cpc codes 573 Number of pct patent applications 577 Number of EP patent documents 582 Distribution of wine-related patent granted in five representative jurisdictions over the 2000–2019 period 584
Tables Main wine producers and exporters 39 French imports of bulk wines by major exporting countries (in average annual hectoliters and percentage of total imports) 42 2.3 French wine production from 1900 to 1961 59 2.4 Algerian wine production from 1900 to 1961 59 2.5 The evolution of Algerian vineyard sizes, 1908–1948 (in hectares) 59 2.6 Algerian exports to France (% of the total Algerian exports to France) 62 8.1 World wine production, consumption and trade 235 2.1 2.2
xii Illustrations 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 12.1 19.1 19.2 19.3 19.4 19.5 19.6 24.1
World wine trade by volume 235 World wine trade by value 235 Areas under vine in European vineyards 235 Evolution of EU wine opening stocks by category 236 Total wine consumption in the EU top 17 wine consuming countries 236 Wine export from the EU Member States 236 Main wine exporting countries to the EU 237 Main wine importers among the EU Member States 237 China’s wine production, consumption and import 237 China’s wine import by volume and by value 238 The main traditional terms as referred to Regulation (ec) N. 607/2009 350 The structure of ipc and cpc code 558 ipc and cpc common (or specific) codes 563 Most frequent ipc/c pc subclasses 567 Summary of main oiv statistics and country rankings for year 2018 575 pct applicants 578 Languages used by pct applicants 579 Supply chain risk management 744
Notes on Contributors Ramyaa Bhadauria is a registered Indian Attorney and Patent Agent with special expertise in patent drafting and prosecution. She completed her Advanced Master (ll.m.) in Intellectual Property and Knowledge Management from Maastricht University (The Netherlands) 2019–2020 on an Orange Tulip Scholarship from Nuffic Neso. Ramyaa also holds a Master’s degree (M.Sc.) in Plant Biotechnology from teri University (India). Joanna Pawlikowska Ph.D. is an assistant professor at the Faculty of Law of the University of Białystok. Her dissertation was awarded by the wipo Award for Creativity in the category Best Intellectual Property Scientific Work and by the Minister of Science and Higher Education in the 8th edition of the Competition for Scientific Works organized by the Patent Office of the Republic of Poland. Her research activity focuses on intellectual property law, mainly on copyright law. She did her internship at the Faculty of Law at the University of Bern (Switzerland). She is the author of numerous academic papers. 2013–2017 vice-president of the Ordo Iuris Institute for Legal Culture. She has also graduated University of Fryderyk Chopin, where she received her diploma in art (violin). Julien Chaisse is Professor at the City University of Hong Kong, School of Law. He is an award- winning scholar of international law with a focus on the regulation and development of economic globalization. He has published numerous well-regarded and widely cited books and articles, and his scholarship has been cited by international courts/tribunals, as well as U.S. Courts. Dr. Chaisse’s teaching and research include international trade/investment law, contract law, international arbitration, and Internet law. Dr. Chaisse served as a senior fellow at the World Trade Institute (Switzerland), lecturer at elite school Sciences Po Aix (France), and as a diplomat for the French Ministry of Foreign Affairs (Embassy of France in India). Nicolas Charest graduated from McGill University –Faculty of Law with a dual degree in civil and common law, as well as from the University of California –Berkeley, with an ll.m degree. He is also admitted to the New York State Bar. His research interests gravitate around trademark law, unfair competitions, systems of
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geographical indications, as well as property theory and the philosophy of intellectual property. He was a research assistant for Authors Alliance, a non- profit organization in San Francisco, and currently is a summer associate at the Montreal office of Fasken Martineau DuMoulin llp. Jacopo Ciani is a post-doc researcher at the University of Turin (Italy) and a qualified lawyer practicing in Milan (Italy), with expertise in ip and competition, advertising, it and data protection law. Jacopo is also Visiting Professor at escp Business School, Turin Campus, where he teaches International Business Law and Contracts. Since 2020, Mr. Ciani has been appointed Assistant Editor of Kritika: Essays on Intellectual Property, edited by Edward Elgar Publishing. His prior professional experience includes work at the Permanent Representative of Italy to the International Organizations in Geneva. He graduated summa cum laude from the University of Turin (2011), holds a post-graduate diploma in International Trade Law from itc-i lo (2011) and earned his Ph.D. from the University of Milan (2016). He has been visiting scholar at the Max Planck Institute for Innovation and Competition (Munich, Germany) and at the ku Leuven Center for it & ip Law (Belgium). He is author of several articles in leading national and international journals and he is currently working on its first book on the Public Domain in the Information Society. His main research field is intellectual property law in the digital environment, with a particular interest in issues related to data governance and ai authorship. Publications within the food sector include a book chapter on the legal protection for culinary creations (2015). Duilio Cortassa is an intellectual property law and food regulatory specialist with expertise in European law, commercial arbitration and litigation, data protection law and international contracts. As a lawyer Duilio has represented clients in litigation proceedings in Italian courts, in proceedings conducted in front of Independent Authorities, such as the Garante per la Protezione dei Dati Personali, the Autorità per le Garanzie nelle Comunicazioni (agcom), the Bundesnetzagentur, the Datenschutzbehörde, the Information Commissioner’s Office (ico), as well as in arbitration proceedings. Duilio is admitted since 1989 as an “avvocato” in Italy, lectures and writes extensively on intellectual property and alcoholic beverage law and practice and is a member of the aidv, of the aida as well as of Federprivacy. He entered on the National Directory of Journalist Publicists and also served for a few years in the Ministry of Foreign Affairs of Italy.
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Jean-Robin Costargent is an arbitration and disputes practitioner focused on economics, finance and damages. He is currently senior manager at ey Dispute Services & Forensics Paris. He advices major international groups and their legal counsels on the financial and damages aspects of the disputes, in particular for companies in the wine & spirit sector. He has a degree in corporate finance at hec Paris, French Bar proficiency and a llm in international arbitration law at the University of Versailles. As co-chair of the Paris Very Young Arbitration Practitioners (pvyap) association until 2018, he organized a seminar on “Arbitration in wine & spirit sector”, hosted by Jones Day Paris. He is also a fellow member of the Confrérie des Entonneurs Rabelaisiens of Chinon (France). Fernando Dias Simões is Associate Professor at the Faculty of Law of the Chinese University of Hong Kong (cuhk). Before joining cuhk, Professor Dias Simões taught for 14 years in universities in Macau and Portugal; in addition, he practiced in a major law firm and served as in-house counsel to a water concessionaire company in his native Portugal. His research interests include international adjudication (in particular, commercial and investment arbitration), investment law, and comparative contract law. He holds a PhD from the University of Santiago de Compostela (Spain), an llm from the University of Glasgow (United Kingdom) and a Bachelor degree from the University of Coimbra (Portugal). He is Senior Research Fellow at the University Institute of European Studies (Italy); Member of the Scientific Committee and Senior Research Associate at gLAWcal –Global Law Initiatives for Sustainable Development (United Kingdom); member of the Asia wto Research Network (awrn); and Rapporteur for the Oxford International Organizations – oxio (Oxford University Press and Manchester International Law Centre). Elliot N. Dorff Rabbi, Ph.D., is Rector and Distinguished Service Professor of Philosophy at American Jewish University and Visiting Professor at ucla School of Law. Since 1984 he has been a member of the Committee on Jewish Law and Standards of the Conservative Movement, for which he wrote the rabbinic ruling that is the basis of his chapter in this book. Since 2007 he has chaired that committee. In addition to his earned doctorate, he has been awarded four honorary doctorate degrees, and he received the Lifetime Achievement Award from the Journal of Law and Religion. He has served on three commissions of the United States federal government –on the provision of health care, on diminishing the spread of sexually transmitted diseases, and on research on
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human subjects –and for the past fifteen years he has served on the committee governing stem cell research for the State of California. He has written over 200 articles and fourteen books, and edited or co-edited another fourteen books, on Jewish thought, law, and ethics, including For the Love of God and People: A Philosophy of Jewish Law. Iris Eisenberger is Professor of Public Law and European Economic Law at the University of Graz. Her research focuses on technology law, environmental law, public economic law and the protection of fundamental rights. She received her Habilitation for Constitutional Law, Administrative Law and the related fields of European Union Law in 2014 for her book on “Innovation in Law” from the University of Vienna, where she was a faculty member at the Department of Constitutional and Administrative Law. From January 2016 until February 2020, she was Professor of Law and Head of the Institute of Law at the University of Natural Resources and Life Sciences, Vienna. She has work experience in both the Austrian and the European Parliament as well as in the Department for Constitutional Law at the Federal Chancellery of Austria. Throughout her career, Iris Eisenberger has held visiting positions at numerous renowned universities including the European University Institute in Florence, the University of Freiburg, the Program on Science, Technology and Society at Harvard University, the Mekelle University in Ethiopia, Macau University and the Technical University Munich. Luca Falciola after obtaining a Master’s degree in Biology and a Ph.D in Applied Genetics in Italy, has worked as patent information specialist, patent attorney, and ip manager in pharma and biotech companies in Switzerland, France, and Belgium. He is presently owner at Scibilis srl, consultancy providing services in intellectual property, competitive intelligence, business agreements, and teaching. He is registered as Qualified Patent Information Professional and wipo ip Expert. He has been speaker at several conferences and published articles about patent information and intellectual property, in parallel of tutoring activities at residential courses or distance-learning programmes about these topics. Danny Friedmann is Assistant Professor of Laws at the Peking University School of Transnational Law in Shenzhen. He is an award-winning researcher and lecturer of intellectual property law, especially trademark law, geographical indications, patent law and copyright law. He has published numerous peer-reviewed articles
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and book chapters. His monograph is called ‘Trademarks and Social Media, Towards Algorithmic Justice’ (Edward Elgar Publishing, September 2015). He is a member of the editorial board of the Journal of Intellectual Property Law and Practice (Oxford University Press). His blog called IP Dragon, which he founded in 2005, is widely read. He was invited as Castetter Visiting Scholar at California Western School of Law in San Diego in July 2016; International Guest Speaker of the EU Centre for Global Affairs at the University of Adelaide in October 2016. He is a Principal Commentator and External Examiner at the University of Macau since 2016. In May 2019 he delivered the Jean Monnet Seminar at the University of Macau. Friedmann holds a Ph.D. in Laws from the Chinese University of Hong Kong, Meester in de rechten/ll.m. of the University of Amsterdam, bba of Nyenrode Business University in Breukelen, Netherlands. He can be reached at [email protected]. Steven Gallagher is a Professional Consultant, Associate Professor of Practice in Law, and Associate Dean (Teaching & Learning) at The Faculty of Law, The Chinese University of Hong Kong. Steven was awarded a first class ll.b. and called to the Bar of England and Wales in 2006. Steven has taught property law in England and Hong Kong. In 2013, Steven introduced the Principles of Art, Antiquities, Cultural Heritage and the Law course to the llm programme at the Chinese University of Hong Kong. Steven has also presented a number of continuing professional development courses for solicitors in Hong Kong on many topics associated with property, art, antiquities, cultural heritage and the law. Steven’s research interests include property law and the development of policy and law intended to promote and protect cultural heritage. Rebeccah Gan is a partner with Wenderoth llp in Washington, DC. She holds academic degrees from the University of Michigan-Ann Arbor and the Washington College of Law at American University. A former uspto examining attorney, Rebeccah’s practice encompasses trademark clearance, registration and enforcement, focusing in particular on brand selection and management, and on litigating trademark opposition and cancellation proceedings before the U.S. Trademark Trial and Appeal Board. Rebeccah is a frequent lecturer and author on various ip topics, including international geographic indications and food-related ip topics. Fabrice Giordano is now a consultant for avity, a law firm based in Bordeaux, which is specialized in wine business law, audit and information technology consulting. He
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was graduated from em Lyon Business School. He completed his studies with a master degree in Wine and Spirits law at the University of Reims under the supervision of Théodore Georgopoulos, and will be a member the oiv Msc in Wine Management (P.33). He takes part in conferences at the International Organization of Vine and Wine (oiv), during the annual meetings of the International Association of Lawyers for Vine and Wine Law (aidv), and at the Rhône-Alps law school. He also contributed to the first legal review of Wine and Spirits Law: Jus Vini, by writing the following articles –“Blockchain: innovation for the wine sector”; The consequences of the free trade agreement between the EU and Japan for the wine sector –(jefta)”. He is the author of the book “Wine and spirits auctions: evolutions, challenges and new technologies”, and passionated about vintage wines. He founded the expertise and sourcing firm –Le Collectionart –in order to advise lovers of fine wines. Christopher Heath (1964) studied law at the Universities of Konstanz, Edinburgh and the lse. He lived and worked in Japan for three years, and between 1992 and 2005 headed the Asian Department of the Max Planck Institute for Patent, Copyright and Competition Law in Munich. Christopher Heath, who wrote his Ph.D. thesis on Japanese unfair competition prevention law, is a Member of the Boards of Appeal at the European Patent Office in Munich. He can be reached by e-mail at [email protected]. Daniel Hohnstein is a partner at Tereposky & DeRose llp, a private law firm located in Canada’s capital city of Ottawa that specializes in international trade and investment matters around the world. Dan’s expertise includes World Trade Organization (wto) dispute settlement, regional free trade agreements, trade remedy, trade defence, and safeguard measures, and customs and regulatory compliance (including technical barriers to trade and sanitary/phytosanitary measures). He represents and advises private sector companies, industry associations, and governments from many different countries in trade litigation and other challenging matters. He has appeared as counsel in hearings before wto panels, arbitrators, and the Appellate Body in a number of disputes. He also regularly advises clients on regional trade and investment treaties. Dan is an expert, for example, on the interpretation, application and implementation of the Canada-EU Comprehensive Economic and Trade Agreement (ceta) and the market access opportunities that it is generating for Canadian, EU, and third-country value chains. He supervised a team of lawyers in a comprehensive two-year analysis concerning: (i) the implementation of the ceta in
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Canada; (ii) market access opportunities for businesses under the ceta; and (iii) ongoing barriers to trade faced by stakeholders. In addition, he is the lead editor of the regional trade agreement database on TradeLawGuide.com. For years, Dan has been examining market access barriers affecting trade in wine and other alcoholic beverage products. He has been monitoring with interest the recent wto disputes involving Canada as well as the internal Canadian disputes related to this topic. Jerry I-H Hsiao is Assistant Professor of Law at