Geographical Indications and the Versailles Peace Treaty of 1919: Then and Now

This Kat has recently been researching the impact of wars on geographical indications (GIs). She would like to share with Kat readers some thoughts on how features of the Versailles Peace Treaty of 1919 and its aftermath resonate with the modern-day GI legislation.

Background

The Treaty of Versailles was a peace treaty signed on June 28, 1919. It ended the state of war between Germany and the Allied (US, the British Empire, France, Italy, Japan) and the Associated Powers (a total of 22 of countries) post the “Great War”, as it was then referred to. The treaty regulated post-war settlement with Germany, requiring it to disarm, pay reparations, and make territorial concessions. The Treaty of Versailles (including its provisions on intellectual property) was used as a model for peace treaties with German allies (Austria, Hungary, Bulgaria, and Turkey).

IP Provisions in the Treaty of Versailles

Intellectual property-related provisions in the Treaty of Versailles can be broadly divided into two groups: those restoring German-owned IP rights in the Allied and Associated Powers, and those related to GIs.

During the war, many of the Allied and Associated Powers suspended, or confiscated and then sold German-owned IP rights. For example, the UK passed the Trading with the Enemy Act in 1914, which effectively suspended German-owned patent and trade marks.

Those Allied and Associated Powers, which were parties to the Paris Convention on Industrial Property or the Berne Convention on Literary and Artistic Works, also suspended their obligations vis-à-vis Germany under these conventions. However, they never formally withdrew from either of the conventions.

The Treaty of Versailles meant to restore pre-war IP ownership to Germany by two principal means. First, the Paris and the Berne Convention re-entered into full force, as the Allied and Associated Powers had considered them suspended with regards to Germany (art. 286). Second, arts. 306 to 311 of the Versailles Treaty re-established German-owned IP rights, which had been suspended during wartime. Where an IP right had lapsed due to a failure to pay renewal fees during the war, such IP rights could be revived (art. 307).

Yet, Allied and Associated Powers were allowed to maintain measures taken towards German-owned IP rights during the war. German nationals were not allowed to sue or otherwise claim damages from the Allied and Associated Powers in respect of the use of German-owned IP rights during the war. This concerned cases of confiscation and of compulsory licensing of German-owned IP rights. In such cases, German nationals were promised reasonable indemnities or royalties.

Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods

At the relevant time, and unlike the Berne or the Paris Conventions, there was no universally accepted international treaty on GI protection. Art. 10 of the Paris Convention (signed in 1883) only allowed goods, which were bearing “false indications as to their sources” (precursor of current GIs), to be seized at the border.

In 1891, the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (Madrid Agreement) was signed. Nevertheless, very few countries were signatories.

Initiated by France and the UK, the Madrid Agreement introduced the two-level GI protection system that we still find in modern-day international IP law. On the one side, all categories of products would receive a minimal level of protection from false or deceptive indications of source. On the other, wines and spirits would receive an additional protection, namely, regional appellations for such products could not be deemed as generic in signatory states.

Prior to the World War one Germany was not party to the Madrid Agreement. Under the then German laws, cognac (one of the first French GIs) was considered generic and was actively produced by German distillers under the cognac name. While the Madrid Agreement obliged its signatories to cease using “cognac” for non-French brandy, Germany refused to adhere to this.

GI provisions in the Treaty of Versailles

Following the two-fold structure of the Madrid Agreement, GIs were regulated in two separate articles. First, under art. 274 Germany undertook to prohibit and seize goods, bearing, directly or indirectly, false indications of origin. Art. 274 went beyond what had been found in international IP law, namely by expanding the definition of “indirect” use to cover terms, which do not include the indication itself, but indirectly refer to the product’s origin, type, nature or special characteristics.

Second, with respect to wine and spirits, art. 275 prescribed that --

“Germany undertakes on condition that reciprocity […] to respect any law, or any administrative or judicial decision […], in force in any Allied or Associated State […], defining or regulating the right to any regional appellation in respect of wine or spirits produced in the State to which the region belongs […] [emphasis added].”

Thus, foreign GIs would be protected under foreign laws within German territory. To achieve the desired level protection in Germany, France had to urgently pass its own GI law. This was done in May 1919, just a day before presenting Germany with a draft of the peace treaty. According to the 1919 law, the collective right to an “appellation d’origine” was recognised through a court decision. Unlike the German law, which was then in force, French law allowed for penal sanctions for infringement, such as imprisonment and fines. In the following years, many regional products, including Cognac and Roquefort cheese, received this special status.

Unsurprisingly, GI norms in the Treaty of Versailles were welcomed by contemporary French scholars. For them, the Treaty was a just way to reclaim French champagne and cognac. They demanded similar provisions to be included in trade agreements with France’s allies.

Instead, as Kickler shows in his book on the history of German GIs, German scholars perceived the GI norms as manifesting a French intent to damage German economy. They saw art. 275 as a restriction of German sovereignty. Moreover, some observed that an obligation to recognise foreign judgments is unpredictable in its scope.

At the same time, some German scholars from the 1920s believed that a stronger GI protection could actually benefit the German economy and improve post-war reconstruction. They noted that the Allied Powers were merely suggesting Germany to use legal norms that had already worked in the Allied Powers themselves.

Only France and Portugal exercised their right for reciprocal GI protection. The UK did not act upon its rights, as it did not have a strong wine industry.

In 1923, Germany amended its legislation to afford the necessary protection for French and Portuguese GIs. Champagne and Cognac were now protected Germany through application of French laws. Madeira and Port wine were afforded protection as per Portuguese laws.

Germany acceded to the Madrid Agreement in 1925. It no longer made sense to resist, after having already made all the concessions that were required by the Madrid Agreement.

Fifteen years later, the government of the occupied France would receive a delegation from Hitler, informing that arts. 274-275 of the Treaty of Versailles were now suspended and Germany would return to producing champagne and cognac.

And a Postscript

By way of postscript, this Kat could not help but notice how contemporary criticism of the Versailles Treaty resonate with the modern-day assessments of GI provisions in trade agreements [see a summary here and a more comprehensive analysis here and here]. A stronger alliance of countries exports their internal norms to a weaker country (whether because the alliance wants to impose them for its own benefit or because it genuinely believes that such norms are helpful), reclaims generic GIs, transforms “may” norms of international IP law into “shall” ones, then copies the agreement itself into further agreements with other countries.

One hundred years later, plus ça change, plus c'est la même chose.