Pairing Sturgeon with Champagne: Towards a Due Cause Exception in the Law of Geographical Indications

Abstract It is commonly lamented that geographical indications (GIs) receive extravagant protection under European Union (EU) law. Yet due to the special nature of GIs it can be hard to conceptualize sensible limitations to protection and so far the question where such limits (if any) should lie has received little attention in scholarship. This article advances the argument for a “due cause exception” in the law of GIs. It examines two categories of use that may legitimately benefit from such an exception: descriptive uses and uses that fall within the scope of freedom of expression provisions, for instance use of GIs as part of artistic works or parodies. The article argues that these and other uses should be evaluated according to a two-pronged test to establish whether they are objectively justified and in accordance with honest practices. Lastly, it argues that even if no express due cause exception is or becomes part of the applicable GI regulations, guidance by the Court of Justice of the European Union on the interpretation of EU law in light of EU primary law mandates observance of countervailing fundamental rights also within the contours of the current regulations. Because the categories of use outlined in this article fall within the scope of the freedom to conduct a business and the freedom of expression and the arts, at least some allowance must be made for these uses when interpreting and applying the protection due to GIs.