Should the Law Regulate Whether and When Corporations Use Locality-Based Food Designations Such as "Brooklyn Style Pizza"?
The Significance of Appellations of Origin

By ANTHONY J. SEBOK AND SAM MURUMBA

Tuesday, Nov. 21, 2006

Recently, Domino's Pizza introduced a new product, the "Brooklyn Style Pizza." As a food writer for the New York Times recently pointed out, its only connection with the great pizzas of Brooklyn is the name of the borough; the fact that it is cut into six, not eight slices; and a dusting of cornmeal in the crust. However, Domino's has invested a huge advertising budget in selling the image of Brooklyn along with the pie.

In this column, the question we want to raise is whether the law can place any restrictions on how corporate America adopts and exploits local gastronomic traditions and culture.

How European Countries and the EU Protect "Appellations of Origin"

As readers may be aware, in Europe, certain foods carry deep associations with local regions and traditions. The word "Champagne" refers to a place in France, not just a style of sparkling wine; the word "Parmesan" refers to a place in Italy, not only a style of cheese. And the local producers do not want wine producers in America to be able to call their sparkling wine "champagne," nor do they want cheese made in Holland to be called "parmesan."

Over the years, a system of legal regulation limiting the use of geographic titles, or "appellations of origin" has developed. European wines have traditionally been regulated by the French Appellation d'Origine Contrôlée (AOC) system, the Denominazione di Origine Controllata (DOC) used in Italy, and the Denominación de Origen system used in Spain. Since 1992 the European Union has expanded this concept to foodstuffs by employing various legal devices, such as protected designation of origin (PDO), protected geographical indication (PGI) and Traditional Speciality Guaranteed (TSG).

Interest in appellations of origin has grown over the years across the world. Some have criticized the practice as a restraint on trade that is designed to protect high-cost, inefficient agricultural communities from competition by lower-cost competitors. They ask why, for example, if a cheesemaker in Slovenia or Turkey can make a blue-veined cheese that tastes like Roquefort, shouldn't it be able to be sold to consumers under that name? (According to the French, Roquefort cheese must be made from milk of a certain breed of sheep, matured in the natural caves near the town of Roquefort, and infected with a fungus found in those caves.)

The Parallel Between Appellations of Origin and Trademarks

The principle behind the legal concept of appellations of origin is similar to the principle behind trademark protection for brands. No modern intellectual property scheme doubts that the owner of a brand has a right to protect that brand from counterfeiting. The legal protection of a brand benefits the brand's owner, but it also protects the consumer, who can be confident that a branded item has certain qualities (and a certain level of quality) associated with the brand's owner.

The manufacturers of goods from specific regions may also share a common interest in maintaining the quality and specific qualities of a product common to that region, so that customers will continue their positive association of the product with the region. This positive feeling regarding a given region is called "shared goodwill." Shared goodwill establishes a common interest that binds competitors within a region against competitors from outside that region. Thus, although the fifty or more Champagne houses may be in competition with each other, they share a common competitive interest in insuring that no one outside their region degrades the shared goodwill that has accumulated in the word "Champagne."

Do Trademarks, In Some Sense, Mean More Than Appellations of Origin Do?

It might be objected that "real" brands--trademarks under the control of a single firm--provide consumers with useful information, while appellations of origin provide consumers with nothing more useful than cocktail-party conversation: One might boast that a certain cheese or wine came from a specific region in a certain country, but what does that really say about its taste or quality? Unless the local officials choose to regulate the production of a product, its quality can vary tremendously, even if its appellation of origin does not. The variation in quality among balsamic vinegars from Modena, Italy, for example, is very broad.

We agree with this criticism, but we believe it also misses the point. Consumers care about the origins of their products for a variety of reasons, and this is especially true about food and drink. As with fashion, the decision to purchase and consume a product often involves a number of competing goals. Some people invest certain foods with memories of their childhood, or with aspirational goals of self-improvement, or with the hope of impressing others. For someone motivated by these concerns, a product that tasted "just like" the one they wanted would be no good, even if it was cheaper. They are looking for the "real thing" and for their purposes, due to their own individual emotions, that is the only thing that will suffice.

It also cannot be denied that for many communities, food has become one of the most powerful means to define identity in a period of increasing globalization. It is not an accident that the effort to codify and register appellations of origin has risen along with the anti-globalization and pro-regionalization movements in Europe. For Catalans in Spain and Sicilians in Italy, the process of gastronomic self-definition helps strengthen regional autonomy in the face of homogenization brought about by the increasingly global economy.

Domino's "Brooklyn Style Pizza" Campaign: Trading on Stereotypes

Domino's campaign for its "Brooklyn Style Pizza" achieves exactly the opposite effect. Its ad campaign trades in crude stereotypes about urban America. Its website has a cast of ethnic stereotypes, and a liberal amount of what we think is supposed to be "attitude." Meanwhile, the television ad that accompanies the campaign looks like an outtake from "Welcome Back Kotter."

The point is not that Brooklyn has changed dramatically over the past 25 years. The point is that it doesn't seem like anyone who truly cares about Brooklyn--its people or its food--had very much to do with the "Brooklyn Style Pizza."

The practice of appellations of origin is just starting to get a foothold in the United States. We are not sure that pizza from Brooklyn deserves that sort of care and attention. But think that there is a connection between respect for the local pedigree of a product and respect for that product's region or home.

In the case of Domino's "Brooklyn Style Pizza," we think that the lesson is particularly clear: Local flavor or authenticity should not be manufactured along with a homogenized, national product. Even if consumers are not fooled--they know, in the end, they are just getting a Domino's pizza--Brooklyn and the dignity of its local culture have been cheapened as a result.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site. Prof. Sam Murumba teaches copyright law, trademark, property, and international human rights at Brooklyn Law School.

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