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Who Owns Your Label?

May 2009
by Jim Gordon
Wines & Vines  reported online in March that dozens if not hundreds of U.S. wineries could lose their ability to market their products in Europe if they continue to use certain common wine terms on their labels. A deadline set by the European Union years ago arrived, and EU officials now consider U.S. imports illegal if their labels carry such good old English terms as "vintage," "tawny," "ruby," and such widely recognized terms of French origin as "chateau," "clos" "sur lie."

Does this raise a long-running trans-Atlantic war of words to an absurd new level? We all know that Europeans have lobbied for decades to get U.S. winemakers to drop "Burgundy," "Port" and "Champagne" from their labels in the U.S., but they haven't had the clout. The Europeans do have the authority in their own countries, and they have successfully banned these misleading geographic terms on imports. They also want to regulate a host of non-geographic terms that they call "traditional expressions."

The EU purpose, however, is not to ban them but to define them, and then enforce their accurate use. That is not absurd, and in fact WineAmerica and Wine Institute have been drafting definitions for the traditional expressions based on how the wines are made and their sensory attributes. WineAmerica passed a resolution including these definitions March 24, and sent it to an EU administrative group for review.

In this resolution, for example, WineAmerica proposes that "tawny," when used on a U.S. fortified wine, is defined as: "...a style of U.S. fortified wine that is aged prior to bottling. At bottling the wine has a red-gold or 'tawny' hue. The wines should reflect the characteristics of careful aging, showing 'developed' rather than fresh fruit characters..." and so on. If the EU accepts these criteria, any wine that fulfills them could be labeled as "tawny." The resolution goes on to define 10 terms in all. We don't love the bureaucracy that will probably calcify around this process, but the idea makes some sense for consumer trust--an extra level of truth in labeling.

The South Africans already have made this leap, and are legally selling "Cape Tawny" fortified wines (with no mention of "Port") in the EU, and Australian fortified wines on sale in the U.S. that are labeled simply as tawny could meet the EU standard, too.

The bigger issue of concern for vintners here is intellectual property. Can the EU claim a host of words as its own intellectual property, despite long-time use and trademark registrations by U.S. vintners? It's one thing if a U.S. fortified wine has to meet an EU definition of "ruby," but it's another if Clos du Val winery in California and Chateau Ste. Michelle in Washington cannot use their familiar brand names at all in the EU.

"The U.S. without a doubt objects to the EU's attempts to make monopolistic properties out of these terms," said Joe Rollo of the Wine Institute. "We don't want to see intellectual property created instantly."

The Europeans consider "chateau" and "clos" as traditional expressions, and they might not allow them in brand names when the wines do not meet their definitions of the terms. "This is something we currently reject," agreed Bill Nelson, president of WineAmerica. "We believe there can be common ground on definitions, but that the brand name cannot be restricted."

WineAmerica proposed this broad definition for "clos/chateau:" "A wine produced by a winery located in an appellation of origin as defined by 27 C.F.R. §4.25. The term may be used in a brand name of the winery." If the EU accepts a definition similar to that, then all may be well. But it's too early to tell.

The war of words has special significance in this time of recession, when shipments overseas are the brightest spot in the wine economy. Anything that dims exports right now is doubly bad.

EU wine labeling regulations should not override existing international trademark law. We urge the EU to recognize that U.S. vintners who chose generic French names for their brands many years ago should not be banned from selling in Europe.
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