This sentiment has been translated to a new state law - the New Mexico Chile Advertising Act - that aims to protect New Mexico green chile and its heritage by preventing cheaper foreign peppers from countries such as Peru, China and Mexico being labelled as New Mexico-grown. Geographic indications, as protected under Article 22 of TRIPS, have been a source of contention for many food and beverage producers. In the UK we have seen issues of geographic indications arising in a line of extended passing off actions starting with the first "Champagne case" in 1961 and in Europe with Budweiser/Budějovický Budvar case. The same headaches faced in Europe are also faced by producers on the other side of the pond. Like champagne, which describes the grape but most importantly the region where the vines are grown and thus the geographical indication of the goods in question, the New Mexican chile pepper faces similar issues. There is no such thing as a "New Mexican" or "Hatch" chile pepper but instead the sign denotes the region where the peppers are grown. Just as the Champagne region's environment produces unique qualities in the growing and production of champagne, New Mexico's high altitude, long hot seasons, sunlight and cold desert nights produce the unique flavor that denotes the New Mexican chile pepper (picture, right - Hatch green chile).
Stephanie Walker of the Chile Pepper Institute told NPR that:
"As with other crops in other parts of the country - we all know about the Vidalia onion, we know about other crops that really have their brand identity in place. New Mexico has that, but it's never been protected the way other crops and other parts of the country has."
The US does not have such a robust quasi suis generis system for geographic origins/indications (of which was a matter of contention for the US in 2005 - see here). The protection instead takes the form of registered trade marks, collective marks or certification marks (compliant with TRIPS? a discussion for another time). The US's system uses the same procedural and administrative structures for geographical indications as it does for trade marks. Section 1054 of the Lanham Act provides that geographic names or signs which would otherwise be considered geographically descriptive, and thus unregisterable without showing acquired distinctiveness, can be registered as certification marks. Certification marks differ from trade marks because the owner of the certification mark does not use it - they only allow others who meet the certification standards to use it. Further, certification marks do not denote a source of commercial undertaking- they only identify that the nature and quality of the goods have met certain standards.
There are three types of certification marks: (1) regional or other origin; (2) methods, process or other characteristics of the goods/services; or (3) the work was performed by a member of a union or organization. For example, US Registration No. 571,798 for ROQUEFORT is used to denote that the cheese has been manufactured from sheep's milk and cured in the caves of Roquefort - thus fulfilling (1)and (2) of the categories of certification categories. Trade mark protection is also available under the normal rules - if NEW MEXICO CHILE has acquired a secondary meaning other than primarily denoting a geographic region then the sign is registrable. For example, if consumers see the mark NEW MEXICO CHILE and identify that the product was grown by the chile producers in New Mexico (and even specifically those in or around Hatch, NM) then the sign will have acquired a secondary meaning. Likewise, a collective trade mark could be registered on behalf of an association or "collective" such as the New Mexican Chile Association whose members in turn use it to identify their goods from non-members. US law has also protected geographic indications through common law trade mark law without need for a registration ( the "Cognac" case - Institut National Des Appellations v Brown-Forman Corp (TTAB 1998)).