Port in Porto, Portugal: Wine And Geographical Indications At PTMG

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

I am in Porto, Portugal for the spring conference of the Pharmaceutical Trade Marks Group, and I have enjoyed learning a bit about port wine – and the associated geographical indication – while I am here.  Port, of course, is a sweet, heavy wine popular as an after-dinner drink, though it comes in various varieties, including a white version handy for mixing cocktails.  The essential quality of port arises from the process by which it is made, a technique that purportedly originated when the British, in a trade war with France in the 17th century, began importing wine from Portugal and needed a way to preserve it better for shipment.  The grapes are harvested, crushed (in many cases still by foot in large tanks), and allowed to ferment only to a certain degree.  Fermentation is halted abruptly by the addition of strong alcohol at a point when the grapes still retain a good deal of their sugar, resulting in the sweet, fortified wine known as port.

What we know as “port” in the United States, however, may often not be the real thing.  True port is produced only from grapes grown in the Douro River valley, a couple of hours inland from Porto and one of the oldest demarcated wine regions in the world (dating from 1756).  The wine is typically shipped down the river in barrels (in the old days by boat, now by truck) to the port wine “lodges” in Porto, for blending, aging, and bottling.  Use of the denomination “port” is controlled by a Portuguese government agency, the Instituto dos Vinhos do Douro e Porto (Institute of Wines of the Douro and Porto), or IVDP.  In order to earn the right to call their wines “port,” and to use the distinctive “seal of guarantee,” producers must prove to the IVDP that they use grapes from the right area and follow the correct processes, and must send sample bottles each year for tasting and approval.

In other words, “port” is a geographical indication (“GI”), a sign or symbol used to indicate that a product originates from a particular area and has certain qualities attributable to that origin. Unlike many countries, however, the US does not have a separate system of protection for geographical indications, and the organizations that control GIs must seek to do so through standard trademark law.  The USPTO will register GIs as certification marks (marks that the owner does not use but rather certifies others to use), so long as the owner controls use of the mark and the mark is not understood as a generic term for a type of good.  For example, TEQUILA was recently registered as a certification mark for Mexican distilled agave spirits, ROQUFORT is registered as a certification mark for cheese, and COGNAC has been recognized by the USPTO as a valid unregistered, common-law certification mark for brandy from the Cognac region of France.   By contrast, however, the USPTO has held that “fontina” is a generic term for a type of cheese, and required disclaimer of that term from the design mark formerly registered by the Italian organization of fontina producers from Valle D’Aosta.

The IVDP has not sought to register PORT as a certification mark in the U.S., and it might have a difficult time obtaining a registration if it did.  The term “port wine” is used descriptively in the goods identifications of many US registrations, some of which (such as PLANALTO) appear to be produced by companies from the right part of Portugal, and some of which (such as PISTE-OFF) clearly do not.  So, if you want the genuine article – which I can highly recommend after a day tour of vineyards in the Douro valley and the PTMG dinner at Taylor’s 17th-century port lodge in Porto – shop carefully, lest you wind up drinking something from the IVDP’s fraud gallery!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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