What makes Italian pasta Italian? That is the question being pondered by a court in California, USA.
As reported by National Public Radio (NPR), two customers, are behind a class action lawsuit against the pasta-making company Barilla, which they say is deliberately deceiving shoppers by using the slogan "Italy's #1 Brand of Pasta" on its packaging.
At issue is this alleged confusion:
Despite the green, white and red stylized Italian flags displayed on the blue boxes of
angel hair, fusilli and bowtie pastas, a complaint filed in Northern California notes that
the majority of the company's products sold in the U.S. are produced in Iowa and New
York and are not made with ingredients sourced from Italy.
For some products, like food and drink, provenance is central to the consumer appeal. The
appellation of origin on a label or in promotional literature is read as both an assurance of its
authenticity and of its quality. Pedigree is such an important attribute that it is recognized in an international treaty. Article 22(1) of the World Trade Organization’s (WTO) 1995 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) defines “Geographical indications” (“GIs”) as:
indications which identify a good as originating in the territory of a Member, or a region
or locality in that territory, where a given quality, reputation or other characteristic of
the good is essentially attributable to its geographic origin.
In the European Union, manufacturers may apply for Protected Designations of Origin (PDOs). One such example is Greek feta cheese, which was the subject of legal action and challenge in Europe (https://www.wipo.int/ipadvantage/en/details.jsp?id=5578). In the UK, Regulation No. 1151/2012 as revised applies. In the USA, ‘Geographical Indication Protection in the United States’ is explained in an important reference document issued by the US Patent and Trademark Office. It notes that, “Examples of geographical indications from the United States include: “FLORIDA” for oranges; “IDAHO” for potatoes; and “WASHINGTON STATE” for apples.”
The Trademark Office’s document explains that “Geographical indications can be viewed as a subset of trademarks”. According to the Oxford Dictionary of English, a trademark is “a symbol, word, or words legally registered or established by use as representing a company or product”. That company or product name in a special font or colour, or the distinctive symbol or logo and, by extension, the packaging, makes it easier for buyers to find the manufacturer’s wares. This is especially valuable, say on a supermarket shelf where there are alternatives. Trademark infringements are taken very seriously. In the USA, The Trademark (AKA Lanham) Act of 1946 As Amended, applies.
The trademark is a sigil for the brand promise – that imprecise but know-it-when-you-see-it experience, which customers expect to receive every single time they interact with the company and consume its products. Geographical indication may be an intrinsic part of a company’s brand promise, where the manufacturer taps into the halo effect of the home country’s image, culture and history.
An exporter to the USA may play on the internationally recognized talent of the British in
banking or media, of the Danes in stylish ergonomic furniture, of the Germans in precision
engineering, or of the Italians in leather fashion goods – or pasta. If the products are not
actually designed or made in that country, then confusion or disappointment may result –
which is the contentious issue at the heart of the Barilla case. Damage to the company’s
reputation may be the consequence, which could have a financial cost through lost future sales. Thus, Apple Inc. carefully and clearly states on its packaging: “Designed in California. Made in [China/India/etc]”. For Apple, the location of their design lab in Cupertino in the famed Silicon Valley is paramount to their brand value and its consumer appeal; where the device is made is secondary, because the buyer can be sure of the high quality of the product shipped in the white box.
Some manufactures opt to use the form ‘-style’ – as in “Greek-style Coconut Milk” – to evoke the connection, without actually claiming that geographic origin. Using the term ‘authentic’ – “Authentic Italian Sauce” – may be problematic, however, if the item is not made in Italy because the word means “of undisputed origin and not a copy”.
It will be very interesting to review the decision of the California court in the Barilla case.
Overseas manufacturers who rely on the cachet of the home country to sell their products in
the USA should watch for the ruling when issued. It could have a profound impact. In the
meantime, branding matters regardless. When you launch into an overseas market, like the
USA, as a matter of good marketing practice you should be absolutely sure that the use of
geographic indicators in your branding strategy will hold up to close examination from an
attorney in court.
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