This article is written by Suvigya Buch, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
Vineyards are an integral part of several cultures, especially French and Romanian cultural and heritage landscapes; they bring a second-degree approach of winemaking and tasting expertise which is also known as savoir-faire and savoir-boire respectively as presentative of their regional character. The appropriation of the heritage value is recognised as exceptional and has been one of the shared beliefs held in common by these two types of folklore representation: an independent appropriation through the dialogue of perception, touching, smell, and taste, and a collective appropriation through the acknowledgement of an identity and territorial community. For over 8000 years, wine has given people pleasure. Moreover, it has played an important role in human life long before even bread was invented. It is a product with a significant and widespread symbolic meaning. Many associations that we have with wine goes back 8000 years to the beginning of its manufacturing. Others may be more recent, but they are nonetheless crucial to how and why we enjoy wine and the process of making it. Knowing about these challenges is a vital antecedent to a more successful connection with the products.
Wine like several other food and drink items can be very specific to certain areas of the world. For example, France is one of the largest producers of wine in the world and French wine dates back to the 6th century BC, when Greek invaders colonised Southern Gaul. With the creation of the Greek colony of Marseille, viticulture thrived quickly. Wine has been produced throughout the Mediterranean for thousands of years, but France has made it a part of their culture and considers winemaking to be an art form for over two thousand years.
Gaulish wines became well-known all across the world before long and the Roman Empire even started granting winemaking licences to regions in the south. Wine and the process of making the wine therefore qualifies as an essential part of the traditional knowledge of such regions. Hence, protecting such traditional knowledge is also of utmost importance and hence this paper seeks not only to understand the social significance of wine but also the importance of protecting the traditional knowledge related to the same.
The history and social significance of wine
Wine was discovered during the Neolithic period, a phase of the Stone Age when people began to grow crops and rear herds of domesticated animals instead of hunting. Wine’s mystique, as well as the pleasure it provides, makes it valuable. As a result, both the drink and the cultivated vine were introduced to new areas, frequently far from the wild grapevine’s native habitat. Proof of the same lies in the fact that eventually, the wine industry began to organise itself. In France, brokers became the King’s formal representatives, with an agreed-upon code of conduct. Early farmers had enough knowledge about their crops as part of the development of agriculture to replicate those that were more productive, more disease resistant, or more flavourful than others. This eventually happened with wild grapevines, and as a result, different grape varieties arose from one species, with clonal selection occurring within each variety to ensure the reproduction of the most useful vines.
It is widely believed that the art of winemaking began around 6000 B.C., and it is thought that this is the date for one of mankind’s most significant inventions because the people of these regions had succeeded in establishing permanent communities through the domestication of flora and fauna. Every culture and society had its own way of making wine.
For example, in France, Benedictine Monks helped spread awareness about wine even further because they utilised it as a part of their religious practices, specifically for Holy Communions. However, for those who wanted to consume wine for purposes that are not necessarily religious in nature, this wine was too watered down as it was meant only for use in church. As a result, the French aristocracy eventually took on the task of winemaking alongside the church. Bordeaux had previously rated the best red wines it produced by 1725, but it was not until 1855 that an official classification based on pricing was established. The wines were categorized into up to five classes or crus according to this categorization. All of this ended abruptly in 1789 with the start of the French Revolution, which ended in 1799 with the people in control. This was crucial for the development of wine, as now vineyards were in competition.
One of the most famous and important wines, with regards to the wine culture of France, is Champagne, sparkling wine from the region of the same name. This wine was created accidentally, and the bubbles were originally regarded as faulty. Temperature fluctuations across Europe hampered the fermenting process. Fermentation, the process by which wine is formed, was briefly interrupted by the cold. The fledgling spirits began to ferment again when spring arrived with warmer temperatures. This resulted in an oversupply of carbon dioxide in the wine bottles, causing the liquid to fizz. The excess pressure inside of the bottles resulted in them bursting and champagne being referred to as the “Devil’s Wine”. The difference between champagne and wine is that champagne undergoes a second fermentation process, which entails adding several additional grams of yeast and allowing it to ferment in the bottle. Because carbon dioxide is not particularly soluble, the carbon dioxide created by this second fermentation causes the bubbles (of carbon dioxide) to be expelled swiftly when the bottle is opened. Thankfully, Dom Perignon( brand of vintage Champagne produced by the Champagne house of Moët & Chandon,) chose to adapt to the new sparkling wine by using a variety of approaches. The first was to thicken the wine bottles’ glass in order for them to endure the pressure of the excess pressure formation. The other was his brilliant design of the wire collar, which not only helped the cork resist the pressure but also allowed monks to ditch the iron masks that they had to wear as protection while handling the Devil’s Wine. The wire collars and glass design are used even today and are an essential part of several celebrations that are toasted to by popping open a bottle of the “bubbly”.
The legal aspect
Wine tasting can often be a lonely and often futile practice if one is not an expert or does not have an expert to guide them through the process. A major reason for this is that wine tasting comprises several processes and technical terms that one must be familiar with in order to make the process fruitful. Even simple things like the basic stages of wine tasting such as analysing the taste through the wine’s appearance, its “in glass aroma”, “in mouth sensation”, and “finish” or aftertaste if not performed correctly, will affect the credibility of the wine tasting.
The EU, accounting for almost half of the world’s vineyards, is the largest wine-producing region in the world, responsible for over 65% of annual wine production. Owing to the vast economic and commercial importance of the wine sector, the wine market in the EU is heavily regulated. As discussed, wine tasting is a complicated process and involves several technical terms which are also referred to as Traditional terms (“TT”), which means certain expressions that traditionally are associated with specific wines bearing a designation or indication of origin. These terms are used in two main ways, first, to indicate the specific type of indication under which the wine production is protected, like a protected designation of origin (“PDO”) or protected geographical indication (“PGI”); or second, to describe product characteristics, like ageing processes, or production systems that are traditionally used to indicate the quality of the product.
In essence, two different types of TT’s exist. The first type is straightforward and basically expresses in the different languages of the respective States that these wine products are protected by a PDO or PGI. The terms used are, however, not identical to a PDO or PGI, but refer to different national schemes in the various countries that are reserved to indicate a product with a PDO or PGI. Well known national schemes that refer to wine protected under a PDO are appellation d’origine contrôlée (AOC) in France and denominazione di origine controllata (DOC) in Italy. Indications like the German term Landwein or the French Vin de Pays, on the other hand, refer to a product protected under a PGI.
For the second type of TT, words, phrases, initials or numerals are used to convey information about a specific production or ageing methods, or other characteristics of a product with a PDO or PGI. That can also be an event linked to the history of the product. Terms that originate in Château and/or Clos, in France, like “Vin jaune”, “Hors d’âge”, and “Rancio”, among others, indicate the production and ageing method that is used for a specific wine, the wine’s quality characteristics, its historical wine typology as well as the colour of the wine. It is therefore evident that the TT’s are essential in identifying wine and its main characteristics, which is also a major part of wine tasting.
As of 2020, 114 out of the total 337 TT’s are of the 114 of them are of the first category, which are phrases that allude to the appropriate national scheme in the nation’s own vernacular to indicate that a product is protected by a PDO or PGI. The second group has 263 phrases that describe the quality of wine or specific production techniques. The adjectives “young,” “old,” and “premium” are all protected terms, as are the names “tawny,” “ruby,” and “vintage”. The French term château refers to a historical expression that is related to a type of area and a type of wine, and it is reserved for wines coming from an estate.
Such terms are not particularly well-known, neither is the protection they enjoy. While they share similarities with geographical indications (“GIs”), they do not form part of the body of intellectual property (“IP”) rights. The TRIPs(Trade-Related Aspects of Intellectual Property Rights) Agreement does not cover TT, nor does the Intellectual Property Law of the European Union (EU). Additionally, Countries outside of the EU also do not protect such terms. TT is not considered a form of intellectual property. While standards of protection for GIs, and even additional protection for GIs for wines and spirits, are included in the TRIPS Agreement, TRIPS does not address TT. WTO Members hence are under no obligation to confer protection to these TT’s. However, this might be a mistake.
It is high time that countries and companies both understood the deep-rooted social relevance of wine across various cultures. With the passage of time, not only has the demand and love for wine increased but also the monetary incentives in dealing with the same. Consequently, people have started mixing wine and imitating labels, thereby misleading the consumers. While this may not necessarily affect big companies, it is important to keep in mind that wine is an indigenous product that is also made by not-so-wealthy people who in the process lose both money as well as their heritage. It is therefore important to ensure that such processes, labels, and TT’s are protected beyond the EU as this too qualifies as traditional knowledge. Protecting them in a similar manner is hence of utmost importance.
Conclusion
As discussed above, Vineyards are an integral part of several cultures, especially both the French and Romanian cultures, among many others. The protection of TT is therefore an important form of protection for wine products in the EU and around the world. But since they do not constitute intellectual property rights protected under the TRIPs Agreement, other countries in the world do not protect them. Nevertheless, when wine importers to the EU market want to use TT that are protected in the Union, they need to seek recognition from the EU.
Despite the fact that TT is not a type of intellectual property, the laws governing its protection in the EU are quite similar to those governing geographical indications. The protection objectives, treatment of identical phrases, trademark conflicts, the scope of protection, and enforcement measures are all very similar to geographical indications. The EU has been quite aggressive in pursuing third-country protection for its TT. It has done so by establishing bilateral agreements with a number of important wine exporting countries, as well as by enacting legislative provisions providing for the protection of TT from third countries. They differ in whether they offer mutual recognition of TT from both parties and establish protection standards in accordance with EU internal regulations, or whether they do not protect TTW at all and instead allow third countries to use TT protected in the EU on wine imported into the EU through derogations. However, it is not possible for the rich traditional knowledge to be preserved unless several countries start recognising the problem at hand. In order to ensure that the cultures, at the very centre of which lies, wine and wine tasting, are allowed to reap the benefits of their traditional knowledge. If no action is taken soon, it will leave the winemakers and tasters communities in a sour state.
References
- Dr. Steve Charter, Wine and Society: The Social and Cultural Context of a Drink 34 (Elsevier Butterworth-Heinemann 2006).
- Jackie Wynne, A History of Wine, Arena flowers https://www.arenaflowers.com/blogs/news/history-of-wine/ (last accessed on Oct. 1, 2021).
- Richard Jennings, What Makes Champagne Special? A Brief History, Huffpost (Dec. 6, 2017) https://www.huffpost.com/entry/what-makes-champagne-spec_b_4278904 (last accessed on Oct. 1, 2021).
- Kilien Stengel et al., Wine Tasting Discourse: Traditional Knowledge, and Practice, 4 Op. J. of Social Sciences (2016).
- Moerland, A. & Bhadauria, R., The Protection of Traditional Terms for Wines in the EU and Beyond, in Chaisse, J., Dias Simoes, F. & Friedmann, D. (eds.), Wine Law and Policy: From National Terroirs to a Global Market, Brill Publishing, Chapter 12, p. 346 – 372 (2020).
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