At U.S. Trade Representative Tai’s Senate confirmation hearing in late February 2021, Tai told Senators on the Finance Committee that she would prioritize protecting the use of common food names in future trade negotiations. She noted that the United States secured historic protections for common food names in the U.S.-Mexico-Canada Agreement (USMCA) and that she would build on that success in future trade negotiations. This follows on the heels of CCFN’s extensive work throughout last year to re-educated Congressional offices on the issue of common names and to press USTR to expand protections for those terms as it negotiates with trading partners.

In a March 2021 letter organized by CCFN, a broad cross-section of national food, agriculture, and beverage associations urged the new U.S. Trade Representative to preserve U.S. exporters’ foreign market access by protecting their rights to use common food and beverage terms around the world and rejecting EU-led efforts to hamstring global competition through restricting the use of those terms. The groups called out the EU’s continued use of trade agreements to impose barriers barring the United States and other nations from competing on a level playing field in the sale of various commonly named food and beverage products.

Tai, who was confirmed in mid-March, also has been receptive to on the need to address the growing challenges facing the use of commonly named products. As noted above, under her leadership, USTR recently issued two reports – the National Trade Estimate and the Special 301 (see above) – that included the U.S. government’s commitment to contest the EU’s continued misuse of GIs as a way of limiting exports to the EU and even to countries with which it has trade agreements.

Ambassador Tai also participated in the Hybrid Annual Meeting for the National Association of State Departments of Agriculture in September, and when pressed about the U.S. – Mexico – Canada Agreement and GIs, she offered her strong support for common names, saying that she “understands the concerns of dairy producers, and particularly cheese manufacturers who want to export cheeses using common names for types of cheeses that they’ve been producing for decades and in some cases over generations. I want everyone to know that at USTR we remain committed to enforcing all the provisions in this agreement and certainly [to] ensuring that Canada and Mexico live up to their promises for our American dairy farmers.”

In May 2021, the Office of the U.S. Trade Representative (USTR) issued its Special 301 report on intellectual property protection, which included dealing with the misuse of GI protections as a trade priority. To help inform the report, in January, CCFN filed with USTR extensive comments, outlining GI-related developments, the roles of foreign governments in driving those policies, and the impacts on U.S. farmers and food producers.

In the report, which annually details the global challenges related to intellectual property, USTR noted the EU’s policy of blocking fair competition through the adoption of GIs that restrict the use of common food and beverage names.

In response to the EU’s aggressive promotion of exclusionary GI policies, the report said, the United States will work to ensure that:

• GI protections do not violate prior rights, such as a U.S. company with a trademark that includes a place name, for example, and do not deprive interested parties the ability to use common names, such as “parmesan” or “feta.”
• Interested parties have notice of, and opportunity to oppose or seek cancellation of, any GI protection that is sought or granted.
• Notices issued when granting a GI consisting of multiple terms identify the common name components.

USTR also indicated it will oppose efforts to extend the protection given to GIs for wines and spirits to other products.

The International Trademark Association (INTA) utilized ample input from CCFN in its comments to the European Commission on their consideration of non-agricultural geographical indications (GIs). CCFN regularly seized GI-related opportunities for comment offered by the EU and other countries in order to consistently outline the core elements of well-designed GI systems.

CCFN submitted its input to INTA earlier this year as part of its active work on the INTA GI Committee. Among the points CCFN emphasized were three key elements:

1. GI protections must be coupled with a heightened level of clarity and transparency in relation to the process and scope of GI registration as well as procedural safeguards and a balancing of the public’s interests.
2. There must be improved clarity and limits in relation to the objectives and scope of GI protection in the EU. This would include clear exclusions from the scope of protection for GIs to avoid restricting common terms.
3. There is a need for a straight-forward, transparent, and fair GI application and examination process, where the evidentiary and financial burdens are distributed fairly between interested parties.

In INTA’s comments to the European Commission, it advocated for ensuring that the process for registering non-agricultural GIs is clear and constitutes effective governance. INTA’s recommendations for any regulation of GIs include the importance of providing effective and transparent mechanisms for addressing:

1. Applications for GIs, applications for amendments, and applications for cancellation; and
2. Opposition, cancellation, and notification procedures that recognize pre-existing trademark rights with which GIs might conflict or cause confusion.

INTA’s exhortation to the EU echoed CCFN’s key themes of the risk that excessive protection poses to generic users: “INTA notes that an additional EU protection regime for non-agricultural GIs has the potential to create many conflicts between newly created non-agricultural GIs and the numerous pre-existing trademark rights protected in the Single Market and pre-existing generic terms unless careful safeguards are introduced. Such safeguards should aim to ensure a fair and transparent system, with maximum legal certainty on the scope of protection of the newly created GIs for a minimum disruption of pre-existing rights. An excessive scope of protection could unduly prejudice the existing rights of trademark holders and limit the freedom to use generic terms. The GI protection regime in the European Union needs to be fair and effective.”

In June 2021, CCFN presented in a webinar sponsored by USPTO and the African Regional Intellectual Property Organization (ARIPO) focused on the use of common names and GIs in Africa. Approximately 60 participants across the ARIPO 19-country region participated in the event.

Former U.S. Chief Agricultural Negotiator, Ambassador Al Johnson, provided a presentation on behalf of CCFN. The presentation covered the history of common names in intellectual property (IP) and the marketplace, and the importance of protecting the rights of common name users, including producers and consumers in Africa. In addition, it outlined proposals as to how these African countries can manage their IP processes to ensure transparency and due process that results in fair and objective decisions that avoid the granting of unjustified GI name monopolies.

This event is part of a series of educational efforts by USPTO in cooperation with CCFN to educate intellectual property officials in Africa and other regions about GI issues and the importance of ensuring producers and consumers who rely on generic terms retain the right to use them.

CCFN submitted two sets of public comments to the EU in response to a proposed revision of its geographical indications (GIs) system and its 2022 EU Intellectual Property Office’s (EUIPO) Guidelines on trademark practice.

In the first set of comments, CCFN emphasized that the scope of protection for EU GIs “creates legal uncertainty” regarding the type of products or business activities that could be a breach of a GI holders’ rights. Additionally, CCFN addressed EU efforts to tie GIs to advancements in sustainability and animal welfare. CCFN argued that a GI regime is not the appropriate venue to address these issues and risks leading to additional direct or indirect restrictions on the use of a new range of terms that could be placed on producers outside the EU. CCFN also went on to point out that the European Commission’s priority should be to eliminate the arbitrary nature of EU GI decisions. The solution that CCFN recommended to solve this issue was to establish a single, independent IP Agency that would manage GI registrations and objectively decide on the oppositions and cancellations filed. With a transparent, truly independent body, the EU could avoid the concession of abusive or unlawful GI-related rights.

In separate detailed comments on the EU trademark guidelines proposal, CCFN emphasized that in the EU’s consideration of any trademark application it must ensure that the name is not “descriptive, generic, or of common use term.” CCFN comments on the proposal’s specific provisions focused on the need for the EU to use a consistent, transparent, and fair process that allows for third party input and the consideration of objective references (e.g., Codex Alimentarius, newspapers, trade, etc.). In addition, CCFN raised concerns about the lack of clarity and broadness of some of the guidelines while others were overly restrictive, all of which could be abused to deny or limit the rights of common name users. Concerns were also raised about how translations of GI names would be treated with CCFN stating that translations should be considered separately as to consumer’s perception of their genericness. Comments also pointed out that trademarks and GIs with generic parts should be allowed to coexist. Finally, CCFN identified that there is an essential need for consistency in how GIs are created, including that all proposed GIs should go through EU’s due process and not be established outside of this process through trade agreements or treaties.

CCFN met virtually with U.N. World Intellectual Property Organization (WIPO) Director-General Daren Tang in January to welcome him in his new role and to discuss potential areas of collaboration, particularly on issues related to the use of commonly named products.

In a February follow-up letter to Director-General Tang, CCFN reiterated its offer to work with the WIPO to ensure that interested parties are provided balanced information on issues related to common names so they can make informed decisions in the best interests of their producers, consumers, trading partners, and other stakeholders.

CCFN also recommended that WIPO employ institutional and programmatic solutions to ensure that guidance on GIs and other intellectual property issues incorporate matters related to common names and the importance of a balanced and fair approach. That input yielded a step in the right direction with more balanced representation for common name users during WIPO’s flagship GI Symposium, held virtually this year.

Since 2019, CCFN has been recognized as an official WIPO Observer and has participated in relevant committee, general assembly, and other meetings representing the interests of common name users. Earlier this year CCFN participated in the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) and the October WIPO General Assembly meetings. Participation in these meetings not only allows CCFN to be aware

of international developments in the GI and common name space but also provides an opportunity to remind various parties around the world of the intellectual property rights of common name users.