Do you remember the big international trademark battles of yore? The almost mythical battles that set the stage for fifty years of international policy on designation of origin and engendered the inchoate animosity brought to life in the tariff battles at the end of the Bush era? Well, let me refresh your recollection.
Remember when France sued everyone who tried to sell sparkling wine as champagne and won? Or when France sued everyone who tried to sell blue cheese as Roquefort, and again won? Unless you were a member of the international jet set aristocracy, you soon found that the menu at the country club had changed, and you were almost in danger of not being able to order foie gras or pinot noir, or even a nice Camembert without the possibility of seeing a disclaimer next to the name and an explanatory footnote at the bottom of the menu. “What’s this?” you might have asked yourself. “All my life I’ve ordered Roquefort dressing on my iceberg wedge, and now these lummocking hillbillies are pretending not to understand me unless I say I want the ‘blue cheese’ dressing? Preposterous.” And your neighbor across the way no doubt commiserated with you, equally offended by the wrongness of it all. Perhaps he nodded his head and said “And if the wife wants a glass of bubbly, now we have to sit through this song and dance with the sommelier where he inquires ever so politely as to whether ‘Madame would like the sparkling wine from Napa or would she prefer the champagne from Languedoc?’ I’m surprised he doesn’t ask if I want the cava from Spain.”
While you can hardly fault France for wanting to protect its sacred gastronomical heritage, at times trademark protectionism seems a bit overreaching. Wasn’t everyone drinking champagne in The Sun Also Rises, first published in 1926? Granted, it was set in Paris, but I would wager my eyeteeth that the American public (and not just the jaded expats) had one thing and one thing only in mind when they heard the word “champagne”: bubbly. The public wasn’t thinking French, American, Spanish, or South American, but only about the alcoholic effervescence which fueled the Roaring ‘20s and made madcap fools of wedding crashers everywhere. Call it what you will, champagne was a noun, not a designation of origin.
Everyone wants their own piece of the pie, but when you have to distinguish between torta and torte, pie and pasty — when you, in fact, have to call a Napoleon a “three-layer-breakfast-pastry,” then you have denatured reality to the point where it is less magnifique than it was and less magnificent than it should be. Some things simply aren’t the same when you change the name. Cary Grant isn’t Cary Grant when he’s called Archie Leach. Elizabeth Taylor may be happy with Liz but don’t try calling her Beth. And don’t tell me canolli by another name is still canolli – Godfather III doesn’t work if Don Altobello is poisoned by a puff pastry.
Names have power. America was clearly still mad about the blue cheese fiasco some four decades after the fact when the administration singled out Roquefort for a 300% tariff. We might as well have said “Hey France, if you don’t want our steroid beef, we don’t want your stinkin’ cheese!! How you like them apples!!”
In fact, now that I think of it, maybe that’s exactly what we said.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.