The African Intellectual Property Organization (OAPI) has reportedly accepted the registration of “Scotch” as a geographical indication for whisky “made in Scotland from water, cereals and yeast, and matured for at least three years.” It’s unclear what if any commercial consequences this move will have considering that the 17 West African countries of the OAPI are not major consumers of Scotch. However, it does have significant importance as a step forward in the attempt to use GI protection to secure excessive privileges for Old World producers in foreign markets.
Perhaps the word “Scotch” does indeed refer only to whisky made in Scotland. The Scottish producers of scotch certainly think so. In no uncertain terms, the spokesperson of the Scotch Whisky Association says that GI registration will protect consumers from “fakes.”
But the purpose of GI protection is generally not to fight against fakes (fraud is already illegal everywhere) but to prevent the use of place names as generic descriptions of products. Scottish producers want to make sure that no where on earth are consumers allowed to think that “Scotch” simply means whisky made according to the methods historically used in Scotland.
Consider the example of Champagne. To some, champagne is a word that means bubbly white wine. To others, it is a name for wine made near Epernay, France according to traditional methods. French champagne producers have been fighting long and hard to claw back the word and prohibit its use as a generic term.
But there are many, many geographic words that are used as generic descriptors. Consider Belgian waffles, French fries, Philly cheesesteak, or even Valencia oranges. Despite being the names of places, these words tell you what the product is like, not where it came from.
There are two big policy questions surrounding GIs: (1) whether a geographic term deserves protection and (2) what actions are prohibited once a GI is protected. Let’s consider the second question for now.
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