202007.03

The protection of wine geographical indications: legislative efforts since Pliny

On February 26, 2020, the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications entered into force (wipo.int). Recently, a Shanghai court condemned an infringer to a suspended prison sentence and a fine for counterfeiting Bordeaux wines. This decision follows an investigation and the seizure, in March 2019, of nearly 10,000 bottles at the wine fair in Chengdu (Sichuan). On June 30, 2020, the Italian authorities, with the help of Europol, dismantled a network that produced counterfeit wine for online markets. The method consisted of filling high-quality bottles with lower quality wines and marketing them, online and at a high price, like authentic bottles (Europol.eu, 2020-06-30). The news on the protection of wine geographical indications is abundant. History shows that it has always been the case.

In 1849, Russia consumed three million bottles of Champagne. In contrast, it only imported one million: counterfeit labels and corks, “bottles of [C]hampagne carefully preserved and filled with ordinary wines from the regions of Russia” (Émile et Marie Ducoudray, « Vins et Champagne français en Russie dans la première moitié du XIXe siècle, in Russes, slaves et soviétiquesMélanges Roger Portal, Sorbonne, Paris, 1992, pp. 343-357, spéc. p. 350). Nowadays, stakeholders involved in the fight against counterfeit wines and spirits have no choice but to secure their assets in every economic zone. By way of illustration, in October 2019, the Côtes de Provence GI became “the first French wine appellation to be recognized by the Russian Federation” (vitisphere.com, 2020-01-23).

However, it is the vast Chinese market that is under particular scrutiny. This brings us to recall that China and the European Union signed an agreement on November 6, 2019, on the reciprocal recognition and protection of one hundred geographical indications on both sides (ec.europa.eu, 2019-11-06). In this regard, it should be noted that the case which took place before the Shanghai judge (briefly mentioned above) started several months before the signing of this Sino-European agreement. However, by retaining jurisdiction and imposing a sentence of imprisonment, the court sent a new warning to the fraudsters. In 2018, similar penalties were pronounced by Chinese courts for other counterfeit Bordeaux wines (vitisphere.com, 2018-09-14). For years, it has been reiterated that it was not enough to pass the law, that the Chinese administration also needed to give itself the means necessary to enforce it. In just a few years, the Chinese authorities have made considerable progress. However, the law must also be brought to the public’s attention.

It’s not a new problem. In 1843, the French parliament asked a report on the counterfeiting of wines and the means of repressing it:

Undoubtedly, it would be advantageous to moralize our trade inside and outside, to prevent the wines of inferior qualities from taking the name and the place of the vintages of superior qualities, and to depreciate their market value, by bringing real damage to the justly deserved reputations” (Rapport de la commission présidée par le Marquis de la Grange, 12 juin 1843, Annales du Parlement français, Session de 1844, Chambre des députés, Tome sixième, 1845)

Furthermore, the author of the report supplemented his speech with multiple illustrations concerning the imitation of foreign wines, the cutting of wines, and other falsifications. A fraud which, for the previous 13 years, had made the City of Paris and the State Tax department lose respectively 20 and 15 million francs (which would amount to approximately 50 and 38 million of our euros). The problem was also sanitary since bad quality wines could contain “disgusting residues, impregnated with lead salts, and often animal materials which are dangerous to the health of consumer(id.). The penalties were considered too low, and the means of supervision insufficient. This report led to a law which, despite the axiom nemo censetur ignorare legem, seemed so little known to fraudsters that a lawyer, Victor Emion, published, in 1857, a practical guide for sellers and buyers (Victor Emion, Des délits et des peines, en matière de fraudes commerciales, denrées alimentaires et boissons : guide pratique du vendeur et de l’acheteur, Paris, 1857). The author reports, among other examples, that on May 18, 1854, the Paris court convicted, in criminal proceedings, a merchant who sold as a Château-Latour 1848 a wine of much less prestigious origin:

“Thus, Ch. deceived the purchaser on the very substance and, consequently, on the nature of the goods, object of the contract; that the fact of deception and the fraudulent intention constitute the elements of the offense provided for and punished by art. 423 of the Penal Code (Paris, 18 mai 1854 : Gazette des Tribunaux du 19 mai 1854; Victor Emion, Des délits et des peines, en matière de fraudes commerciales, denrées alimentaires et boissons : guide pratique du vendeur et de l’acheteur, Paris, 1857, para. 44, p. 52).

Nearly thirty years after the law was in force, another lawyer, Albert Chiché, published, for the same reason, a guide for the use of traders who were prosecuted before the criminal courts for falsifying drinks or foods (Albert Chiché, Petit Manuel à l’usage des commerçants poursuivis devant le Tribunal de police correctionnelle pour falsification de boissons ou de substances alimentaires ou pour tous autres délits de même nature, Imprimeries réunies, 1885). However, it seems difficult to imagine that nemo auditur… could have been invoked in 19th century France, when the abundant press, both general and special, served as a channel for the dissemination of new laws.

Two centuries later, at the time of the Internet and WeChat, the question of the diffusion of the law does not arise. However, counterfeiting continues.

“Pliny tells us that in Rome, we already distrusted certain wines from Narbonne Gaul. Fraud is as old as commerce itself. The legislator of all times and of all countries was in need to impose severe penalties on the falsification of drinks” (Maurice Savignon, Le mouillage des vins aux yeux de la loi, de la doctrine et de la jurisprudence. Examen critique du nouveau projet de loi, 1894).

Regarding “harsh penalties”, authorities should finally show determination to apply existing penalities. Counterfeiting continues on a large scale because the profitability of counterfeiting is greater than the legal risk. The lack of enforcement of penalties annihilates the deterrent power of the law and encourages the pursuit of counterfeiting.

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