Traditional Foods, Territorial Boundaries and the TRIPS Agreement: The Case of the Melton Mowbray Pork Pie

• Date: 01 December 2013
• Published date: 01 December 2013
• DOI: http://doi.org/10.1002/jwip.12016
• Author: Matthew J. Rippon

Traditional Foods, Territorial Boundaries and the

TRIPS Agreement: The Case of the Melton Mowbray

Pork Pie

Matthew J. Rippon

Queen Mary, University of London

British pie aficionados associate the town of Melton Mowbray with the production of pork pies of exceptional quality.

The “Melton Mowbray” name became a Geographical Indication (GI) in 2009. However, the Melton Mowbray Pork

Pie Association (MMPPA), formed to obtain GI status, was founded as long ago as 1998. This paper uses the Melton

Mowbray case to explore the GI model that operates in the European Union (EU). Articles 22, 23 and 24 of the Trade-

Related Aspects of Intellectual Property Rights (TRIPS) Agreement are actualised through the national legislation of

each World Trade Organization (WTO) member. This occurred in the EU at the time of the Melton Mowbray example

via Regulation 2081/92. The paper draws upon material gleaned from interviews with the Melton Mowbray producers

and Chairman of the MMPPA which are supplemented by transcripts of the legal conflict which pitted the MMPPA

against a powerful rival manufacturer. The MMPPA argued that its adversary was too distant from Melton Mowbray

and that it applied inauthentic methods of production. The out-of-place producer, in response, claimed that the

“Melton Mowbray” name was generic and hence ineligible for GI protection. This detailed study of one of Britain’s

most iconic regional foods investigates the conceptual and legal infrastructure that is common to all GIs. It provides an

in-depth analysis of the constructions of place, boundaries and tradition that are deployed to generate GIs and

legitimise the system. Moreover, this work demonstrates that the intricacies and nuances of the GI model can result in

differing interpretations of these notions and thus lead to legal challenges from aggrieved producers.

Keywords geographical indications; regulation 2081/92; TRIPS; Melton Mowbray pork pie

The Evolution of Geographical Indications

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (1995) aimed to

standardise the Intellectual Property (IP) regimes of all World Trade Organization (WTO) members. This

expansive regulatory system applies to forms of IP as diverse as copyright, trademarks, industrial designs,

patents and integrated circuit topographies. TRIPS also created an international system of geographical

indications (GIs). Foods, drinks and agricultural products are certified as GIs if their positive qualities are

believed to derive from the unique conditions of the specific locations from which they originate.

There have been a number of analyses of the GI components of TRIPS and of GIs more generally

(Gangjee, 2012; Hughes, 2006; Kireeva and O’Connor, 2010; Nair and Kumar, 2005). Research has

revealed the commonalities in the Lisbon Agreement and articles 22, 23 and 24 of TRIPS (Gervais, 2009);

indicated the conflict over GIs between the United States (US) and EU (Doster, 2006); explained the

apparent bias suffered by non-EU producers who attempted to register their geographical names in the EU

(Charlier and Ngo, 2007); identified the attitude of producers who comprise the OriGIn (Organization for

an International Geographical Indications Network) coalition (Vittori, 2010); investigated the

introduction of the Appellation d’Origine Contro

ˆle

´e(AOC) certification regime in early twentieth

century France (Teil, 2010); studied the use of GIs in India (Das, 2006); analysed subjective definitions of

the “local” in the context of American GIs (Giovannucci et al., 2010); connected the GI aspects of TRIPS

to the Doha development agenda (Echols, 2003); reviewed the socio-economic evidence on GIs from

262 ©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2013) Vol. 16, no. 5–6, pp. 262–301

doi: 10.1002/jwip.12016

Europe (Rangnekar, 2004); questioned whether GIs can promote endogenous development in the Global

South (Bowen, 2010); unveiled the relationship between GIs and Traditional Knowledge (Singhal, 2008)

and suggested that the creation of GI systems in developing countries can aid human rights

(Gangjee, 2008).

Our knowledge of GIs would still benefit from a more sustained focus on two specific themes. First is

the mechanism by which national GI systems function in practice. TRIPS articles 22, 23 and 24 define GIs,

provide the basis for protection, indicate the higher level of protection granted to wines and spirits and

explain the relationship between GIs and trademarks. These articles are applied via the legal systems of

each WTO member (Nyakotyo, 2013). This paper investigates the GI system that operates in the EU.

Many European nations such as France, Greece, Italy, Portugal and Spain have wholeheartedly embraced

GIs while others like the United Kingdom (UK) are cautiously supportive. This suggests that the EU

model should be an ideal target of analysis. However, perhaps surprisingly, limited research has thus far

scrutinised its construction and operation.

Second is a focus on specific GIs. In this work, I reveal the story of the Melton Mowbray Pork Pie. The

results of my exploration of this iconic British GI can be extrapolated to reveal more about the GI

infrastructure in the UK, the EU and internationally. This paper provides an encompassing investigation of

the Melton Mowbray case. Topics include the formation of the Melton Mowbray Pork Pie Association

(MMPPA) producer group created to protect the “Melton Mowbray” name, the controversy over the

MMPPA’s newly defined boundaries, the extensive litigation with a rival manufacturer and the recent

battle over the amendment to the Melton Mowbray GI registration. This approach complements the few

case studies of GI foods and drinks like Boseong Green Tea from South Korea (Suh and

MacPherson, 2007), Cafe´ de Marcala from Honduras (Tueber, 2009), Champagne (Parry, 2008), Feni

Cashew Liquor from Goa (Rangnekar, 2011), Feta Cheese (Gangjee, 2007), Ladotyri Mytilinis Cheese

from Greece (Vakoufaris, 2010), Melton Mowbray Pork Pies (Gangjee, 2006), Newcastle Brown Ale

(Pike, 2011), Parmigiano-Reggiano Cheese (De Roest and Menghi, 2000) and Serpa Cheese from

Portugal (West and Domingos, 2012). The majority of these studies, however, are devoted to topics such

as the social construction of place or the branding of location. They either do not prioritise the GI

qualification awarded to the food or drink of interest or fail to explore the legal dimensions of GI

certification (the Gangjee papers are an exception).

This paper uses a case study approach to explore the GI regime which operates in the EU (Rippon, 2013). I

analyse the workings of the EU scheme to reveal how the GI elements of TRIPS are invoked. I describe the

British Government’s uneasy relationship with the production of place-based foods and drinks. I then

investigate the story of the Melton Mowbray Pork Pie. Melton Mowbray is a town in the county of

Leicestershire in central England. British consumers connect the place of Melton Mowbray to the production

of pork pies of exceptional quality. I explain why a number of pork pie producers based in the Melton

Mowbray area decided to form the MMPPA and detail the rationales they invoked to justify the acquisition of

exclusive control over the valuable “Melton Mowbray” name. I reveal the reasons why the MMPPA decided to

create a definition of “Melton Mowbray” that was neither excessively vague nor too strict. I question the

historical geographies of place and production techniques the MMPPA employed in order to legitimise their

contemporary boundaries and manufacturing methods. Figure 1 shows a packet of Melton Mowbray Pork Pies.

I target an issue of particular interest to readers of this journal with an investigation of the contentious

legal battle that occurred between the MMPPA and a powerful competitor producer. This case is

significant as Melton Mowbray is one of the few GIs to have been challenged in court.

1

I use the extensive

legal documentation submitted to the High Court of Justice by the MMPPA, the Department for Food,

Agriculture and Rural Affairs (DEFRA) and the objecting manufacturer to reveal how legal participants

comprehended the intricate nexus between GI law and notions of place, boundaries and tradition. I focus

on the second legal dispute in which the MMPPA attempted to modify the ingredients necessary to make

Traditional Foods, Territorial Boundaries and the TRIPS Agreement Matthew J. Rippon

©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2013) Vol. 16, no. 5–6 263

the “traditional” Melton Mowbray. I conclude by focusing on four of the most intriguing components of

the GI system. These are the need for the PFN model to be applied in a just fashion, the political desire by

the EU to prevent food names from becoming generic, the similarities and divergences between different

GI systems and the influence of the supposed attributes of place in claims to protected status.

I quote from interviews I carried out with members of the MMPPA in order to more fully examine this

narrative.

2

This approach enables the actors that are responsible for the creation, development and

stabilisation of the Melton Mowbray GI to explain in their own words their understanding of the GI

structure. This work is timely as the GI system currently operates in an expansionary mode. New GIs are

created every week while there is renewed interest in the development of a multilateral TRIPS reg ister.

3

Moreover, it is likely that there will be future objections to both extant and proposed GIs. The Melton

Mowbray case thus provides an opportunity to view the type of legal arguments that will be invoked by

those who wish to challenge specific registrations.

My overall rationale in this paper is to provide a case study which unveils the geographical

constructions and legal foundation on which all GI systems are predicated. This work will demonstrate

that this infrastructure is not always uncontroversial and that litigation may well result from the selective

interpretation of geographical themes of place, its boundedness and notions of tradition.

From Lisbon to TRIPS to Protected Food Names

The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration

(1958) protects the name of goods that originate from defined places. Lisbon article 2 (1) defines these

appellations as “the geographical denomination of a country, region, or locality, which serves to designate

a product originating therein, the quality or characteristics of which are due exclusively or essentially to

the geographical environment, including natural and human factors”. Lisbon protects “appellations of

Figure 1. Melton Mowbray Pork Pies

Matthew J. Rippon Traditional Foods, Territorial Boundaries and the TRIPS Agreement

©2014 John Wiley & Sons Ltd

264 The Journal of World Intellectual Property (2013) Vol. 16, no. 5–6