Aislamiento inicial y distancias de acción protectora

A few years after the registration of Parmigiano-Reggiano as a PDO in the

EU, in 1999 the PRC brought a case against an Italian company that had been

producing a dry, grated cheese under the label ‘Parmesan’ for export to other

European Member States. The company was located within the region of origin and

also produced cheese according to the PDO specification for sale domestically.

However, the cheese sent abroad contained a mixture derived from various origins.

The case sought to determine whether or not an Italian company could export cheese

under the term Parmesan despite Italian law prohibiting any use of the name if the

product did not abide by the production specifications (European Court of Justice v

Bigi 2002).

Germany, the biggest producer of the cheese after Italy (Smith 2008), was

asked to comment on the case. They raised the argument that use of the name could

not be considered misuse or evocation of the PDO because the name Parmesan had

evolved over time to be understood by consumers, both in Germany and other

Member States, as a generic term. Although they admitted that originally Parmesan

constituted a translation of Parmigiano-Reggiano, it had come to take on another

meaning in the everyday usage of consumers:

“By ‘parmesan’, German and Austrian consumers mean a cheese that is grated, or intended to be grated, and used as a garnish for certain dishes. ‘Parmesan’ does not call to mind the name of a cheese originating from the Parma region, or more generally, from Italy. Rather, by ‘Parmigiano Reggiano’, German consumers mean a type of ‘parmesan’ of a particular quality, made in Italy, having an aromatic taste varying from strong to pungent, and requiring a certain time to mature (at least 12 months)” (European Court of Justice 2002: 9, para 48).

In describing what consumers meant by the term, Parmesan became an empty form

in a mythical order of meaning that was joined with a culturally specific concept –

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how it was declared to be understood by German and Austrian societies. Thus, it

becomes evident in this statement that the connotation of Parmesan as a type of

grated cheese had been naturalized and acted as a conceptual lens through which

German representatives viewed the issue. And since generic names may not be

registered according to European legislation, here genericism emerged as a means of

preventing the use of Parmesan from becoming the exclusive property of Italian

producers.

Ultimately, in 2002 the ECJ rejected the argument that Parmesan was a generic term as it was “far from clear” and not sufficiently proven by Germany

(European Court of Justice 2002: 4, para 20). They also ruled that Parmesan was, in

fact, a direct translation of Parmigiano-Reggiano and that once a European country

had registered a name it may not be marketed anywhere in the EU or risk misleading

consumers. But what is interesting is to notice how a competing meaning of

Parmesan, guided by terroirism, presented itself in the language of the court:

“The use of the term ‘Parmigiano’ immediately conjures up in the mind of the European consumer the cheese produced in that region of Italy and not an inhabitant of that Italian town” (European Court of Justice 2002: 9, para 52)

They continued:

“The designation of origin ‘Parmigiano Reggiano’ therefore refers to parmesan, the characteristic cheese, originating in a particular place (the town of Parma and its surroundings) and in that particular region (Emilia-Romagna)” (European Court of Justice 2002: 10, para 54).

Notice the differing connotation of Parmesan as a particular cheese derived from a

specific geographical area, which in this statement is claimed to be the result of how

it is understood by European consumers regardless of a lack of empirical evidence.

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terroirism was used as a means of localizing the term and legitimizing the exclusive

use of the translation Parmesan for Italian producers.

Shortly after Parmesan was declared to be a translation that must also be

protected in the EU, in 2003 the European Commission confronted and eventually

took Germany to court over its failure to clamp down on the production of Parmesan

within its borders (Commission of the European Communities v Germany 2008).

The German government held to its arguments that the term had succumbed to

genericide. They also contended that Parmesan had an independent meaning separate

from that of the registration Parmigiano-Reggiano, that the regulations only

protected the compound term in its entirety, and that Parmesan had been produced in

Italy up until the year 2000. One German dairy representative was reported as stating that, “The southern European member states want to use this regulation to turn back

the time and they want to protect designations that have clearly become generic”

(Associated Press 2007).

The Commission’s response to Germany was that Parmesan could only be

generic in the case that consumers stop regarding the name as related to its place of

origin; in essence the connotation with Italy was lost. They argued that this had not

taken place despite a lack of empirical evidence to the contrary; otherwise

manufacturers would not need to use words and images connecting their products to

Italy. The Commission also stated that singular elements of all compound terms were

protected unless generic or declared to be ‘unprotected’ by their owners, which was

not the case with Parmesan, and that all elements of a compound name are protected

unless otherwise indicated.20 The production of Parmesan in Italy was irrelevant in

20 _{A number of compound cheese names were registered along with Parmigiano-Reggiano under the}

European system in 1996 such as Camembert de Normandie, Emmental de Savoie, Brie de Meaux, Provolone Valpadana, Pecorino Romano, Mozzarella di Bufala Campana, Noord-Hollandse Gouda,

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that it did not constitute genericity because the product was intended for export to

countries where the term is not necessarily protected “in accordance with the principle of territoriality” (Commission of the European Communities 2008: 4, para

38). This last point is especially interesting because in the current dispute over the

use of Parmesan actors claim that the name is being abused in non-EU countries

despite the recognition of territoriality under the WTO.

In 2008 Parmesan was declared to be an evocation of Parmigiano-Reggiano

restricted to the exclusive use of right-holders within the specified region of Italy.

However, the burden of ensuring compliance with the regulations was held to be the

responsibility of the PRC rather than the German government.21 The question of Parmesan’s genericity, though introduced, was never fully addressed and dismissed

based on lack of evidence. While the PRC (2007) asserted that these cases

demonstrated that Parmesan was clearly not a generic term, in actuality given

enough evidence its genericness could still be proven.