10.1 Introduction
Harris tweed, Banaras silk saris and Kente cloth enjoy a considerable reputation, as traditional textiles feted for their quality and provenance. Geographical indications (GIs) offer a mode of place-based branding for such regional products. This form of intellectual property can help to shape a distinct brand identity and ensure better legal protection for their reputations. Once protected, the price premium derived from this reputation makes GI production potentially sustainable across three registers.Footnote 1 In socio-cultural terms, legal recognition as a GI can sustain the demand for heritage textile products, renewing important symbols of cultural identity, traditional production practices and local communities. In economic terms, improving market access can also support producer communities whose livelihood depends on these products, while facilitating closer collaboration within these communities. Where successful, this results in sustainable employment, often in rural or under-developed regions. Moreover, the GI approach, with its emphasis on local resources and artisanal methods, potentially avoids environmental sustainability criticisms targeting the mainstream fashion industry. GI protection may therefore align promisingly with the ‘three pillars’ model of sustainability: social, economic and environmental.Footnote 2
GIs are an attractive option because the sustainability credentials of the global fashion industry are being scrutinised more closely than ever. Focusing primarily on environmental sustainability, this chapter critically assesses whether this ‘GI optimism’ is warranted, asking whether there are legal and institutional mechanisms to systematically reinforce sustainability commitments, focusing on recent legal reforms in the EU. Following this introduction, Section 10.2 outlines the basics of GI protection and describes how crafts and textiles are increasingly accommodated within this field of IP law. It then sets out why the sustainability crisis of global fashion might be an opportunity for traditional textiles, which are territorially embedded. Section 10.3 unpacks a recent regulatory experiment in the EU, which will allow the product specification, describing how and where GI products can be made, to accommodate voluntary ‘sustainability undertakings’ by producer groups. However, sustainability is being emphasised in different ways in EU GI policy. While the agricultural GI regime embraces the social, economic and environmental dimensions of sustainability, the crafts and textiles regime prioritises economic sustainability, given the relatively small-scale nature of production. This is an oversight, since commercial pressures can lead to adaptations that are justified in economic terms but have significantly detrimental environmental consequences. Section 10.4 briefly concludes by observing that synergies between different aspects of sustainability should not be taken for granted in GI law and policy, if it is to truly deliver on ‘threads that last’.
10.2 GIs: The Hope
10.2.1 What Are GIs?
Like trademarks, GIs are signs that convey information about products to consumers and can function as valuable brands. Article 22.1 of the TRIPS AgreementFootnote 3 describes them as ‘indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’ (emphasis added). Prominent examples include Champagne, Bordeaux and Prosecco for wine, Café de Colombia for coffee, Darjeeling for tea, Roquefort for cheese and Parma for ham. GI protection is therefore concerned with preventing unauthorised uses of such signs, which may either cause harm to their communicative functions – for example, by misleading consumers about provenance – or misappropriate their brand image. Notably, these regimes protect signs but do not protect the underlying production methods. Thus ‘GIs are about what things can be called. They are about labelling, packaging and marketing. Nothing in GI rules prevents any producer anywhere from using the techniques specified as being associated with the GI name. But they may not use the name to communicate the production techniques they have used’.Footnote 4 While Champagne is a protected term in many jurisdictions, the méthode champenoise has been widely adopted by sparkling wine producers around the world.
Despite this shared commitment to the protection of signs, four features set GIs apart from trademarks.Footnote 5 First, as per the TRIPS definition in Art 22.1, GIs indicate geographical origin (a place) as opposed to trade origin (commercial source) for a product. Second, all producers from within the region of origin who follow the established production methods are invested in their use. This gives rise to co-ordination issues around product definition and a collective interest in any ensuing reputation.Footnote 6 Third, in order to qualify as a GI, producers must demonstrate – in a causally verifiable manner – that the product in question owes its qualities or reputation to the region of origin. In this regard, wine is the archetypal subject matter with terroir providing the causal explanation for the distinctive quality or typicity (typicité) of wine.Footnote 7 However, as we will see immediately below, crafts and textiles cannot be linked to a place in the same way that grapes anchor wines to geologically and climatically defined regions. Fourth, there needs to be a consensus around the underlying product that is referenced by the sign. If a GI is promising something about a product to consumers, we need to be clear about the content of this promise. Sui generis protection systems for GIs usually require an application to be made to a public registrar.Footnote 8 At the core of this application is the product specification, also referred to as the qualification document or cahier des charges. A crucial part of legally defining a GI is therefore a detailed product description, emphasising its distinctive qualities that set it apart from similar products – what makes this particular handwoven fabric different from others?Footnote 9 These differentiating features which characterise the product should then be causally linked back to the region of origin in verifiable ways:
[The application] should demonstrate in what way the product’s characteristics are due to the geographical area and what the natural, human and other elements are which give its specificity to the product …. [It] must describe the specificities of the product and of the geographical area which produces or influences these factors, and how these two are linked. This is the ‘link’ between the geographical area and the quality of the product. The description must also underline in what way the methods of production for the product are superior to others and contribute to its specific and distinctive character.Footnote 10
This link between product and place distinguishes GIs as a form of intellectual property. Formal examination by a public registrar serves to certify this nexus.
One further clarification is helpful at this stage. In the case of a traditional textile, when can its quality, reputation or characteristic features be ‘essentially attributable’ to its geographical origin? For such products, a combination of natural and human factors usually influences the end result. Natural factors include the sourcing of raw materials from within the defined region. Examples include the conical hats from Hué in Vietnam, prepared from a local variety of leaves,Footnote 11 or the fleece of the mountainous goat breed Capra Hiracus for making Kashmiri Pashmina shawls from India.Footnote 12 Pashmina is a down fibre or under coat derived from this native breed, which lives at high Himalayan altitudes with severe winter temperatures. The resulting fabric is renowned for its fineness and warmth. Human factors refer to the practical skills and inter-generational, collectively transmitted know-how crucial to the manufacture of such textiles.Footnote 13 Delphine Marie-Viven describes the skill involved in the production of Kancheepuram silk saris, woven in the famous temple town of Kanchipuram in Southern India:
The method of production is characterized by the use of thick silk yarn which gives it its heavy weight and bright colours as well as by the use of two extra shuttles on each side of the loom, besides the shuttle used for the main body of the sari, to weave the borders in contrasting colors. The reputation of Kancheepuram saris also lies in the use of silver, gold and red silk threads known as ‘zari’. It is generally accepted that counterfeit Kancheepuram saris are made of thinner silk yarn and have only one border and do not contain gold. The method of production includes dressing the yarn, sizing, the degumming of the yarn, including the number of times it is rinsed and the time required to do so, as well as a meticulously detailed dyeing process.Footnote 14
However, in many cases it may only be human factors that link a product to a specific region, with raw materials being drawn from a wider catchment area. Even in such situations, producers’ skills will have evolved through interactions with local environmental features or localised socio-economic circumstances. While artisans can migrate with their skills, the knowhow associated with such famous regional products has usually been shaped by its geographical context (e.g., climatic conditions favouring light, porous fabrics, or textile designs bearing motifs that have local religious or cultural significance).Footnote 15 Where these natural and/or human factors are responsible for the product’s characteristic features and associated reputation over time, this aligns with the definitional requirements of Art 22.1 TRIPS.Footnote 16
Finally, the applicant group is required to submit inspection or verification criteria (which specific manufacturing processes, or product features, will be tested for compliance with the product specification) and additionally identify who will be responsible for ensuring compliance (frequently an unrelated third party with the necessary certification expertise).Footnote 17 Consequently, while the source indication function and brand dimensions of GIs overlap with trademarks, the collective interest in protection, geographical embeddedness and certification of the causal link set them apart.
10.2.2 GIs Protection for Traditional Textiles
GI protection seeks to preserve the ability of a sign to communicate the distinctive geographical origin and associated quality of a product. While the initial regimes originated in the context of guaranteeing the regional provenance of wines in France,Footnote 18 over time the subject matter categories have expanded. Today, GIs are registered around the world for wines, spirits, foodstuffs, agricultural produce and crafts.Footnote 19 Within the broad category of craft GIs one finds several examples of textiles as well as leather and jewellery products, which are of relevance for the fashion sector.Footnote 20 The Organisation for an International Geographical Indications Network (oriGIn), a non-profit non-governmental organisation (NGO) advocating for better GI protection, maintains a searchable international compilation of GIs. This includes 381 textile-related protected GIs – including for brocades, silks, woollens, saris, cashmere, tweeds, embroidery work, block printed materials, tie-dyed fabrics, kimonos and shawls – from a range of countries.Footnote 21 The Lisbon Express database managed by WIPO contains 37 international registrations for textile products registered under the Lisbon System,Footnote 22 almost exclusively from the Czech Republic, France and Iran.Footnote 23 National GI registers in countries such as India and Thailand contain sizeable numbers of registrations for crafts, including textiles.Footnote 24 An in-depth study of Indian handloom GIs identifies 74 registrations as of 2021, since they are an important part of the informal economy, which nevertheless generates significant employment.Footnote 25 Several examples of traditional textiles are found across Latin America, including Colombia (Wayuu), Guatemala (Maya), Bolivia (Textileros de Cochabamba), El Salvador (San Sebastián) and Panama (Kuna).Footnote 26 In a significant development, the European Union has recently introduced a registration system for non-agricultural products, including extracted products such as marble, crafts and textiles, including lace and embroidered products.Footnote 27
Once registered, GIs are protected against statutorily defined unauthorised uses. The widely shared intuition that counterfeits or fakes are undesirable can be further unpacked via the information efficiency hypothesis, which relates to the degree of information reflected in the prices of products in efficient markets.Footnote 28 Within mainstream neoclassical economics, consumers are characterised as utility maximising agents attempting to make optimal choices.Footnote 29 Rational decision-making is premised on the availability of sufficient information in the marketplace. However, GI products can be characterised as either experience goods or credence goods, whose quality cannot be easily verified by consumers prior to purchase (‘How can I tell if this is a genuine Bordeaux wine?’). In these situations, sellers possess more information about the products than buyers, whereupon information asymmetry arises.Footnote 30 This informational imbalance could lead to familiar forms of market failure such as adverse selection and the ensuing ‘market for lemons’, driving quality downwards.Footnote 31 Reputation signals and the conveying of reliable information relating to product attributes are two methods of restoring informational efficiency. Public authorities intervene by establishing a legal regime that grants exclusive rights, thereby regulating who can legitimately use a sign for traditional regional products. As a result, protected signs can be trusted. This not only reduces consumer search costs but also prevents undesirable free riding. Additionally, for GIs, credible information is provided – via the examination preceding registration – about provenance, quality attributes and modes of production. Two products bearing the same protected GI should share the same origin-specific qualities. In other words, registration empowers consumers by converting credence or experience attributes into quasi-search ones.
The informational efficiency account justifies one important tier of GI protection rules. Signs or logos for traditional textiles are protected against unauthorised misleading uses relating to origin or quality. Article 22.2 of TRIPS requires members to ‘provide the legal means for interested parties to prevent … the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good’. Article 40(1)(c) of the recent EU Crafts and Industrial Products [CIP] Regulation (EU) 2023/2411 prohibits any ‘false or misleading indication as to the provenance, origin, nature or essential qualities of the product … [used in packaging or advertising] liable to convey a false impression as to its origin’. Article 40(1)(d) of the CIP Regulation broadly prohibits ‘any other practice liable to mislead the consumer as to the true origin of the product’.
Increasingly, sui generis regimes also prevent unauthorised uses that free ride on a product’s reputation, or else harm the brand image of regional products, via dilution or tarnishing associations, even where no consumers are misled.Footnote 32 For instance, Article 40(1)(a) of the CIP Regulation prevents the use of a protected craft or textile GI against ‘any direct or indirect commercial use of the [GI] in respect of products not covered by the registration … where the use of the name exploits, weakens, dilutes, or is detrimental to, the reputation of the protected geographical indication’. Article 40(1)(b) prevents any ‘misuse, imitation or evocation of the [protected name], even if the true origin … is indicated or if the protected geographical indication is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation” [etc]’. This second, far more generous tier of protection exists to protect the reputation that arises from the collective, inter-generational investment in the underlying product.Footnote 33 GIs therefore appeal as a form of brand-based protection for traditional crafts and textiles, since it has previously proved challenging to accommodate such products within the ‘content protection’ fields of IP such as copyright and design law.Footnote 34
Premised on these normative foundations, legal protection creates the conditions for legitimate GI producers to obtain a price premium, by ensuring exclusive use of the sign for the purposes of differentiating their products. An EU study calculated the average value premium – the price difference between EU GI products and comparable standard products – as 2.07 in 2017.Footnote 35 The premium across different categories of products is further differentiated, with wines at 2.85, spirits at 2.52 and agricultural products and foodstuffs at 1.5. There is an expectation that consumers’ willingness to pay a price premium also exists for crafts and textiles GIs as well, once consumers become aware of the certification guarantees performed by GIs.Footnote 36 These products often rely on artisanal modes of production, while researchers have noticed a ‘handmade effect’ which positively shapes consumer purchase preferences. Handcrafted products appear more attractive to consumers, since they perceive them as embodying the artisan’s love for their craft in a way that machine-made products cannot replicate.Footnote 37 In addition, there is also a perceived prestige value associated with handmade fashion products such as clothing, handbags and shoes. One study identifies (verifiable) craft authenticity, the purchaser’s knowledge about the craft and social identity as the key determinants that influence purchases by Indian consumers.Footnote 38 Another study from India concludes from survey evidence that GI labels that convey reliable quality information about traditional handlooms do increase trust and positively influence consumer purchase intentions.Footnote 39 A review of the EU context suggests that where artisanal crafts or textiles have shorter and less complex value chains, ‘it is more likely that the price premium stays with producers’.Footnote 40
However, the same study also notes that there is comparatively less research on willingness to pay a premium for non-agricultural GIs, while distribution effects may vary: ‘The question is whether the premium will cover the costs [since GIs are usually more expensive to produce] and who will benefit.’Footnote 41 It should be noted that the beneficiaries of this price premium will vary in accordance with the power dynamics specific to each supply chain. For some agricultural GIs, the price premium is captured by local farmers, whereas in others it is captured by traders and distributors.Footnote 42 These concerns carry over to craft and textile GIs; for example, a price premium has not resulted in equitable wages for the weavers of the reputed Indian Banaras sari.Footnote 43
While questions therefore remain about who benefits from legal protection, in its absence the harm to traditional craft and textile producers is abundantly clear. Lookalike products enter the market at lower price points, while misleadingly using the GI designation and frustrating consumer expectations:
Competition comes mostly from competitors located outside of the region, who produce either similar products or imitation products at lower costs then abusing the GI name and deceiving consumers. Besides the fact that consumers might be attracted by the ‘lower price’ of the other products, they are often not able to perceive the difference between a genuine and a counterfeited or imitation product, as the quality of the counterfeits are becoming increasingly better.Footnote 44
The lower price is often attributed to factors such as less costly labour outside the original region of production, cheaper raw materials or the adoption of industrial-scale, mechanised production processes. To take one example, the city of Varanasi in the state of Uttar Pradesh in India is a historic weaving centre famed for its Banaras saris. The favourable reputation is due to the finely textured silk and intricate weaving techniques, often involving brocade work with zari or metallic thread and displaying complex design motifs or bootis.Footnote 45 In the recent past, concerns have included a flood of far more economical, lower quality imitations from China as well as the other states in India (such as Gujarat); the imitations being made by power looms as opposed to more labour-intensive traditional techniques, the use of synthetic materials or other cheaper varieties of silks in these imitations and the poaching of the best weavers by other sari manufacturing regions.Footnote 46 The threat is not just external. Some technological advances prove irresistible to established producers within the region of origin, such as the adoption of powerlooms.Footnote 47 Based on extensive fieldwork in the Varanasi area, Amit Basole has described this new development as ‘home-based and small workshop-based weaving, often (but not necessarily) carried out with second-hand looms obtained from textile mills’.Footnote 48 Whilst recognising the political economy dimensions of who does and does not adopt the more capital-intensive powerlooms, Basole questions whether the introduction of the powerloom should be viewed as a threat at all:
[The Banaras sari] GI has been developed without significant participation of the artisanal community and is ‘preservationist’, that is, freezes current production methods in the name of craft preservation. In contrast artisans take a dynamic approach to their knowledge and innovate in response to market pressures as well as changing resource bases. A GI that seeks to preserve artisanal traditions, as they exist now, risks punishing artisans for innovating.Footnote 49
We return to the issue of (im)permissible adaptations in Section 10.3.2 of this chapter. Nonetheless, there is a broad consensus that effective intellectual property protection is required to combat fakes or counterfeits.Footnote 50 Legal protection, alongside a basket of other support policies, is seen as a crucial bulwark to prevent the eventual dying out of traditional crafts, where producers can no longer make a sustainable living. An EU study in 2020 reveals that from a sample of 834 potential craft and textile GIs identified in 2013, ‘many of the products, as of 2019, were simply not produced anymore. Other products had lost their geographical roots, for example by being used as trade mark by multinational companies without maintaining any actual presence in the region of origin’.Footnote 51
10.2.3 Fashion and Sustainability: An Opportunity for Traditional Textiles
The preceding analysis has set out the case for why GI protection has advantages for geographically embedded traditional textiles. However, what do GIs offer the fashion industry, in terms of the provenance guarantee that they represent? Put differently, what are the synergies between GI protection for local, traditional textiles and the priorities of the increasingly globalised fashion industry? One compelling response is the claim that traditional textiles have better sustainability credentials. It is now widely acknowledged that mainstream models of fashion production and retail are both ecologically and socio-economically unsustainable, although the concept of sustainability is understood in different ways across the sector.Footnote 52
This chapter adopts the Brundtland Report’s widely accepted, broad definition of sustainability as meeting ‘the needs of the present without compromising the ability of future generations to meet their own needs’.Footnote 53 In the context of fashion, as opposed to focusing on any given item of clothing being sustainable, the approach should be process-oriented: ‘Sustainable describes the processes and behaviours involved in producing that [fashion] product.’Footnote 54 While the focus of this chapter is on environmental considerations, the full range of sustainability concerns spans inequitable labour practices, the health and safety of workers, gender inequality as well as the wasteful production and consumption of fashion goods. A United Nations Environment Programme (UNEP) report highlights the ecological sustainability concerns:
[Fashion is] a sector struggling to address its impacts, including significant natural resource use and pollution, with 215 trillion litres of water consumed per year, and 9% of annual microplastic losses to oceans. This sector is contributing to the triple planetary crisis of climate change, nature and biodiversity loss, and pollution and waste. A crisis which is exacerbated by the way in which we produce and consume, and the textile sector is significant in driving unsustainable patterns of both, with consumers using items 36% less before discarding compared to 15 years ago, and the equivalent of a garbage truck full of clothes being thrown away every second.Footnote 55
This implicates the entire fashion value chain. On the production side, wet processing (the bleaching/dyeing/finishing stage of textile production) and synthetic fibre production stand out, while the effluents and energy usage from laundering as well as discarding items after only a few wears are prominent consumption-based aspects.Footnote 56
The fast fashion industry is of particular concern, as a significant global polluter. Emerging in the 1990s, this new model emphasised the shortening of lead times for both production as well as distribution, offering new products to the market as fast as possible.Footnote 57 While fashion has historically been premised on trends and cycles, it is the pace of change that makes this far more frenetic iteration remarkable. It was initially feted as a retail strategy for democratising couture and bringing trendy, affordable items to the masses. Brands today associated with this trend include Zara, Forever 21, H&M, TopShop, Shein and Primark. Although this development can in turn be situated within a broader historical trend of increasingly industrialised, mass-produced and standardised garment manufacture,Footnote 58 there is nevertheless a distinctive set of concerns associated with fast fashion. The pressure to sell newer lines at lower prices has undermined working conditions and wages, while the environmental costs of this model are increasingly apparent.Footnote 59 One prominent policy response to the latter is the recent EU Strategy for Sustainable and Circular Textiles:
As clothing comprises the largest share of EU textile consumption (81%), the trends of using garments for ever shorter periods before throwing them away contribute the most to unsustainable patterns of overproduction and overconsumption. Such trends have become known as fast fashion, enticing consumers to keep on buying clothing of inferior quality and lower price, produced rapidly in response to the latest trends … Moreover, the growing demand for textiles is fueling [sic] the inefficient use of non-renewable resources, including the production of synthetic fibres from fossil-fuels. These negative impacts have their roots in a linear model that is characterised by low rates of use, reuse, repair and fibre-to-fibre recycling of textiles, and that often does not put quality, durability and recyclability as priorities for the design and manufacturing of apparel. The shedding of microplastics from synthetic textiles and footwear during all stages of their lifecycle further adds to the environmental impacts of the sector.Footnote 60
The EU strategy seeks to address this set of challenges through measures such as clamping down on greenwashing, taking steps to reduce the export of textile waste and setting mandatory minimums for the inclusion of recycled fibres in textiles, making them longer lasting, as well as easier to repair and recycle.Footnote 61
This policy shift towards encouraging more sustainably produced, longer-lasting garments creates an opportunity for traditional textiles, which have conventionally relied on natural fibres and dyes as opposed to synthetic ones, to be valued for artisanal modes of production connected to local communities and are bought to be kept, not discarded.Footnote 62 In other words, the titular ‘threads that last’. Environmental sustainability has been expressly linked to traditional textile GIs in the draft proposal for the new EU non-agricultural GIs protection regime, which ‘also shares specific objectives with the Commission’s forthcoming EU strategy on sustainable textiles, which aims to create a better business and regulatory environment for sustainable and circular textiles within the Union’.Footnote 63 This potential can be illustrated by Dabu (variously spelled Dhabu or Daboo), from Western India. Dabu means ‘to press’ and is a form of block printed textile production relying on mud-resistant printing techniques.Footnote 64 While natural dyes are used for colouring, local mud is used to make a dye-resistant paste, which is then painstakingly stamped, using carved wooden or metal blocks bearing attractive motifs, onto the fabric. Since the mud prevents the natural dyes from attaching to the fabric, artisans create patterns and designs by intentionally preventing dye penetration in selected areas. The process is labour intensive, involving various stages of washing, stamping and dyeing. Producers rely on natural materials such as clay or mud, lime gum, wheat husk, florals and fruits. It should however be noted that traditional textile production methods evolve in ways that sometimes cut against sustainability objectives. For example, natural dyes require chemical supplements to bind more effectively with fabrics and retain colour over time, with the residual binding chemicals washed away after the final rinsing.Footnote 65 In Section 10.3, we therefore examine whether specific binding and meaningful commitments to sustainability could be facilitated by GI legislation.
The second reason why GIs seem promising is they ostensibly fit well with contemporary policy approaches to sustainable development. Since these products are, by definition, locally embedded to varying degrees, they have the potential to act as a platform for territorial development strategies.Footnote 66 As opposed to a top-down national (or in the EU’s case, region-wide) approach to sustainable development, territorial strategies focus on leveraging the unique characteristics, strengths and opportunities present within a particular region. This approach recognises bespoke policy interventions tailored to specific local needs. Key principles include prioritising local context, that is, natural resources (and their constraints), cultural heritage, economic arrangements and social dynamics and inclusive or participatory governance whereby local stakeholders are involved in decision-making. This emphasis on place or local geography complements a growing consumer awareness of where and how garments are made. The COVID-19 ‘pandemic contributed to [drawing] attention to nearness and quality, enhanced cultural connections with the territory, and, to a certain extent, triggered a centripetal as opposed to a centrifugal movement, which is at the heart of the concept of localism’.Footnote 67
The territorial approach to development, which values local context, has been informed by social science research that ranges widely beyond the formal legal act of GIs registration. A recent review of the lessons learned from agricultural, wines and spirits GIs concludes that legal recognition is ‘not a magical tool and that the local conditions which can influence their establishment and management are crucial to the efficiency and local sustainability of the GI’.Footnote 68 The review goes on to identify the following operational conditions:Footnote 69
i. respecting, as a matter of operational practice, the casual link between quality and origin that is clearly defined in the product specification (both in order to satisfy the conditions for granting a legal (IP) right and to ensure meaningful product differentiation in markets);
ii. creating the conditions for successful collective action, described as ‘the ensemble of individual and collective choices and initiatives made by producers as a group for a common objective’Footnote 70 and ensuing territorial governance strategies, on an ongoing basis;
iii. effective marketing, which incorporates the GI term and accompanying official logos;Footnote 71 and
iv. an efficient legal framework and the role of the public sector, as it pertains to effective protection of GIs against misuse.
With sustainability in mind, the product specification remains an important legal site, since it defines acceptable production techniques, influences value chain efficiency and delimits the production region.Footnote 72 However, one needs to step back and review the full ‘biography’ of the GI product – its existence both prior to and past the initial product specification, as influenced by the decisions of supply chain actors amidst changing circumstances – when evaluating the potential for sustainability.
10.3 Legally Reinforcing Sustainable Production for Textiles
The preceding analysis has outlined how the fashion industry is increasingly being held to account for its sustainability record, with a particular emphasis on environmental sustainability. Here we ask whether there are legal and institutional mechanisms within GI law that systematically guarantee the environmental sustainability of traditional textile production? Alternatively, instead of a mandatory legal obligation, might GI rules incrementally nudge textile producers to either maintain or proactively adopt environmentally sustainable practices? While the territorial or terroir anchor generates theoretical expectations that GIs align with sustainability objectives, there has been far less analysis of the role that legal architecture plays in supporting these objectives. Drawing on recent regulatory experimentation in the EU as a case study, this Section (i) outlines newly adopted legal mechanisms for encouraging sustainable production while arguing that there is slippage between the different senses of sustainability – in particular, economic and environmental – in EU GI policy and (ii) subsequently analyses why this slippage matters, because commercial pressures can lead to the adoption of less environmentally sustainable production methods.
10.3.1 Making Binding Sustainability Commitments?
In recent years, EU policymakers have actively engaged with ways to reinforce sustainability commitments via the legal framework regulating GIs. However, the difference in emphasis between the environmental and economic dimensions of sustainability has gone largely unnoticed. The following analysis foregrounds how both dimensions are prominent in the agricultural products context (used broadly here, to include wines and spirits), while the focus seems to be mainly on economic sustainability for crafts and textiles. This difference matters and Section 10.3.2 explores the potential tension between commercial pressures and more environmentally friendly production techniques.
To begin with, this policy interest in sustainability hinges on the centrality of the link, shared by all GIs, between distinctive products and specified regions.
Even if environmental protection or animal welfare are not the main objectives of GIs … these kind of products can have a direct or indirect impact on both domains because they are strongly associated with specific territories and local resources … and because [product specifications] often contain rules about traditional production practices linked to their geographical origin as well as traditional know-how, or the choice of specific varieties, that might have an impact on the environment and animal welfare even indirectly.Footnote 73
This link or territorial association is elaborated in the product specification, where the product – including its distinctive characteristics – is described along with the (often traditional) methods of production that give the product those characteristics. Specifications also delimit the production region, identify permitted raw materials and their sourcing while sometimes additionally prescribing modes of packaging.Footnote 74
Turning first to environmental sustainability, surveys of producer groups in the agricultural context reveal that the following measures have been found, to varying degrees, in product specifications:
The mitigation of the impacts on landscape [such as preventing soil erosion] …, fostering the use of old breeds or plant varieties … mitigating of the impact on water quality … and limiting the use of water … fostering extensive production practices [producing a lower yield per unit of land, such that many more units of land are required in order to be profitable], mitigating of the impact on biodiversity and fostering organic production …. The least cited relates to the limitation of [greenhouse gas] emission and impact on air quality and of the use of energy.Footnote 75
Whereas mandatory environmental standards must be complied with, certain producer groups have taken the initiative to adopt stricter standards that are more environmentally friendly, such as a commitment to using animal manure instead of chemical fertilisers, mechanically controlling weeds or using certain insect species to combat pests.Footnote 76 A recent proposal to consolidate the three distinct EU GI regimes for agricultural products, wines and spirits recognises sustainability in the ‘three pillars’ sense: ‘GI agricultural/food products incorporate some sustainability characteristics in one or more of the three dimensions of the term: environmental, stemming from GI products intrinsic link to a specific area with its specific natural factors and resulting from production methods adapted to that area; [social …] and economic: as the value added in a GI product is secured for the local producers and cannot be delocalised.’Footnote 77
Environmental sustainability is an increasingly visible priority because agricultural GI law is situated within the EU food quality policy framework. Given the environmental impacts of food production, distribution and consumption, this policy framework is being reshaped by the European Green Deal, aiming to make Europe the first climate-neutral continent and its subsidiary Farm to Fork strategy, seeking to establish a fair, healthy and environmentally friendly food system.Footnote 78
The case for economic sustainability is premised upon GI status resulting in higher margins for producers, via the price premium that consumers are willing to pay for distinctive products.Footnote 79 This ensures the survival of production-related local know-how, thereby preserving viable employment in the region and possibly even growing employment where demand increases, as a result of enhanced visibility and access to new markets. The formation of a GI producer group allows for better co-ordination and the ability to collectively confront external pressures (such as contractual negotiations with large retailers or other intermediaries). GI status can also be a bargaining chip when negotiating more flexible solutions, when it comes to regulatory compliance for a certain product sector (e.g., demonstrating that products made with unpasteurised milk are nevertheless suitable for consumption, or where smoking or salting a product can effectively preserve it). Finally, there are the positive spillovers: potential benefits for local food processing industries that use local GI ingredients – the hotels, restaurants and catering sectors and tourism more generally.Footnote 80
The final text of this Consolidating Regulation 2024/1143 explicitly references all three dimensions of sustainability in its opening recitals.Footnote 81 One of the stated purposes of instituting an EU-wide system of GI protection is to ensure ‘that producers acting collectively have the necessary powers and responsibilities to manage the [GI] concerned, including to respond to societal demands … for products resulting from sustainable production in its three dimensions of economic, environmental and social value’ and – by preventing unfair competition or misuse – ‘ensure a fair return for producers and a capacity to invest in the quality, reputation and sustainability of their products’.Footnote 82 The commitment to sustainability takes the form of an optional sustainability undertaking in the final text. Producer groups ‘may agree on sustainable practices to be adhered to in the production … [or other requirements associated with the product] in the product specification …. Such practices shall aim to apply sustainability standards higher than those laid down by Union or national law in terms of social, environmental or economic sustainability or animal welfare’.Footnote 83 The specific environmental sustainability objectives mentioned include ‘climate change mitigation and adaptation, the sustainable use and protection of landscapes, water and soil, the transition to a circular economy, including the reduction of food waste, pollution prevention and control, and the protection and restoration of biodiversity’ alongside the reduction in usage of pesticides.Footnote 84
The key move is thus to provide an option to embed these enhanced sustainability undertakings – if mandatory for all producers – within the product specification, via the initial GI registration or subsequent amendment procedure.Footnote 85 The ability of producer groups to agree such sustainable practices is further recognised when describing their role and functions.Footnote 86 Where producer groups have chosen to make such a commitment, it becomes visible to the public in two complementary ways: (i) by forming part of the product specification, accessed via a publicly available electronic databaseFootnote 87 and also potentially a legally binding commitment, if incorporated into the certification compliance criteria (when verifying that a GI producer satisfies the commitments in the product specification); and (ii) a periodically updated, publicly available sustainability report by the producers, ‘comprising a description of existing sustainable practices implemented in the production of the product, a description of how the method of obtaining the product impacts on sustainability, in terms of social, environmental, economic or animal welfare commitments, and information necessary to understand how sustainability affects the development, performance and position of the product’.Footnote 88 The underlying rationale seems to be that producers are more likely to be rewarded by consumers who are made aware of their commitment to enhanced sustainability.Footnote 89 It also underscores the seriousness of the commitment, while implicitly raising the sanction of reputational damage if this turns out to be merely greenwashing.
It is therefore evident that a more comprehensive concept of sustainability informs recent developments in the agricultural GIs context. By contrast, since craft and textiles GIs tend to be produced by micro, small and medium enterprises (MSMEs) in the EU,Footnote 90 the policy emphasis has been on legal protection as a means of achieving economic sustainability for producers. The Green Paper in 2014, introducing the possibility of legally recognising craft GIs at the EU level, highlights positive spillover effects such as ‘encouraging tourism, trade fairs and cultural activities and, consequently, creating more job opportunities’.Footnote 91 A European Parliament Resolution supporting such a regime, which protects traditional, high-quality knowhow, would ensure ‘a more socially, economically and environmentally sustainable approach to economic development’.Footnote 92 Detailed preparatory studies analysing the economic potential for craft GI protection emphasise regional and sustainable development in the senses of increased productivity, employment, improved marketing efforts and greater producer co-operation.Footnote 93 This emphasis continues in the text of the CIP Regulation, where Recital 8 declares that protection will ‘contribute to the creation of valuable and sustainable jobs, including in rural and less-developed regions, which would help counter depopulation trends’, especially where a substantial proportion of the value added is generated within the defined region. Article 45(2) of this Regulation, which identifies the tasks undertaken by GI producer groups, recognises that such a group ‘may [ie, optionally] … agree to undertake commitments with regard to sustainability, whether or not included in the product specification or as a separate initiative’.Footnote 94 While the draft Consolidating Regulation clearly envisions sustainability in the ‘three pillars’ sense, by contrast the CIP framework references sustainability as a general concept, with more detailed references pertaining only to economic sustainability. It is also apparent that the crafts version of the sustainability undertaking – ‘whether … in the product specification or as a separate initiative’ (emphasis added) and with no provision for an updated sustainability report or other visibility enhancing mechanisms – is relatively diluted.
It is unclear why this differential treatment exists for two EU legislative processes that have unfolded in parallel. One part of the answer may have to do with their origins. Their legislative incubators and associated institutional priorities differ: ‘It is noteworthy that [the Consolidating Regulation] originates within [the policy department, Directorate-General or] DG Agriculture and [the CIP Regulation] originates within DG Grow – Internal Market, Industry, Entrepreneurship and SMEs.’Footnote 95 Another, more substantive driver of differential treatment may be the reluctance to impose additional regulatory compliance burdens on CIP producers, in the form of enhanced environmental sustainability standards. This ‘compliance costs’ concern has emerged as a consistent theme during the drafting of the CIP Regulation, given the small-scale nature of craft and textile production across the EU. A study of the cost effectiveness of formal certification, verification and enforcement concludes that costs ‘tend to be higher for certification marks (with verification procedures) and GIs (verification procedures and detailed scrutiny of the application) compared to the other schemes’.Footnote 96 It was therefore proposed that as opposed to more expensive (and rigorous) external verification compliance checks – testing whether the producer being inspected makes crafts in accordance with the specification – ‘self-certification and random controls should lower the application and verification costs’.Footnote 97
As a result of this sensitivity to regulatory compliance burdens, the CIP Regulation has introduced two alternative pathways for verification compliance. One, contained in Article 52, mirrors the conventional approach found in the agricultural GI domain, where verification is carried out by designated competent authorities in each Member State, or else this responsibility is delegated to independent bodies (or individuals) with the relevant certification expertise. Competent bodies in the agricultural GI context are usually ‘the intermediaries between the applicants and the EU Commission’Footnote 98 and often a public body under the relevant Ministry of Agriculture or Rural affairs.Footnote 99 The second, alternative, pathway in Article 51 relies on a self-declaration by a producer, periodically updated every three years and submitted to the national authority. This declaration is scrutinised at the level of formal compliance: is the prescribed form complete and providing consistent information? An external verification layer by a product certification body can be optionally added to this self-declaration mechanism, if the GI applicant group so chooses. A surprisingly light-touch verification process, resting on self-certification, is therefore envisaged to ensure that craft and textile producers comply with product specifications.
What consequently emerges from the EU experiment is that for the CIP Regulation, the priority given to economic sustainability clearly overshadows environmental sustainability. It also showcases voluntary sustainability undertakings being incorporated into the product specification, as an operational mechanism. These undertakings can potentially be made (i) binding, via the verification process and (ii) more visible, within the GI register. However, unlike agricultural GIs, there is no mention of an accompanying sustainability report for craft GIs. Furthermore, the verification process for crafts has itself been diluted, by opting for producer self-certification in order to reduce operational costs. Sustainability is being deployed to achieve seemingly different ends in the agricultural and crafts GI contexts.
10.3.2 Pressures to Adapt
Section 10.3.1 analysed the potential for enhanced sustainability objectives to be formally recognised within the GI registration and subsequent operationalisation processes. However, the very real risks of backsliding should also be acknowledged. Where textiles have conventionally used more sustainable traditional methods of production, how do commercial pressures to adopt less environmentally friendly measures manifest? There is an assumption in some of the GI literature that crafts and textile GIs can harmoniously accommodate the social, economic and environmental dimensions of sustainability.Footnote 100 Milano and Cazella characterise this as a more general assumption, based on theories of territorial development and the production of public goods by agriculture: ‘The hypothesis that GIs simultaneously generate positive environmental, social and economic results is widely accepted in the literature.’Footnote 101 However, we have seen immediately above that the recently enacted EU CIP Regulation prioritises the economic dimensions of sustainability, with environmental sustainability being relatively invisible. The ‘three pillars’ paradigm is also used in fields such as environmental or administrative law as a principled approach for reconciling interests, which in turn recognises that these interests can and do conflict, depending on how they are framed.Footnote 102
Goals of environmental and social sustainability may be conflicting rather than compatible. For example, efforts to overcome social inequalities and develop human capabilities could easily mean increasing the use of natural resources to the detriment of the conservation or resilience of the biophysical environment.Footnote 103
There are examples from the agricultural GIs literature that point to the unintended consequences of economic success, in the form of an increased demand for a GI product. A pioneering study by Bowen and Zapata analysed spirit drink production in the Amatitán-Tequila Valley in Mexico.Footnote 104 This was conducted against the backdrop of a 15-year-long expansion of the Tequila market, ‘driven by a shift in control and ownership of the major Tequila companies to transnational liquor companies, and … accompanied by the concentration, industrialization, and standardization of Tequila production’.Footnote 105 While ostensibly introduced to remedy persistent cycles of surplus and shortage in the agave cactus supply chain, these changes led to detrimental revisions of the Tequila product specification, such as the increased use of chemical inputs at the expense of more labour-intensive production practices. The revised production rules, which favoured standardisation, did ‘little to preserve traditional Tequila production methods or the environmental specificity of Tequila. Thus, Tequila is evolving into a generic, mass-produced liquor; and the farmer knowledge, artisanal production practices, and environmental resources that are associated with the specificity and heritage of tequila are being degraded’.Footnote 106 In the case of the Spanish almond-based desserts, Turrón de Jijona and Turrón de Alicante, manufacturers seeking to scale up production removed the requirement to source the primary ingredient (almonds) from the region’s low-input farms and opted for intensively produced ingredients imported from abroad (primarily California).Footnote 107 A study of hairy mitten crabs from the Yangcheng Lake region in Suzhou, China concludes that their increasing economic value incentivised farmers to expand crab breeding zones. This expansion, accompanied by the increased adoption of crab feed pellets, contributed to water pollution.Footnote 108
Similar stresses arise in the context of traditional textile production, as the following example from India illustrates. Fabrics produced in the Bagru hand block-printing cluster in the state of Rajasthan are protected under Indian GI law.Footnote 109 While the neighbouring cluster in Sanganer, also famous for block-printing, has gradually shifted to screen and machine printing, Bagru is still acknowledged for its hand block-printing technique that is over three centuries old.Footnote 110 It is also reputed for using natural dyes, which rely on mixtures of flowers, tree barks, roots and clay. Key features from the GI specification include a cream or off-white base colour with block prints being dominated by red or black, traditional methods being used to prepare vegetable dyes and create prints, five main groups of small motifs (leaves and buds, geometrical designs, etc), the use of Dabu (resist) soil from local black clay and its association with the community of Chippas based in that region.Footnote 111 In the Indian context, the impact of COVID-19 restrictions and disruptions on supply chains for traditional artisanal production clusters has been widely acknowledged.Footnote 112 The effects of the pandemic in Bagru have exacerbated longer term challenges that undermine many of the key features of this traditional fabric. The traditional method of production has made the cluster vulnerable to fabrics that are screen-printed mechanically in larger volumes (as opposed to block-printing by hand) and relying on chemical dyes (as opposed to natural ones).Footnote 113 These are often sold as if genuinely handmade.
Many manufacturers today continue to sell screen printed textiles under the name of hand block-printed [ones] due to the lack of certificates and [effective] authentic labelling in this industry. This practice has discouraged many firms to continue with traditional practices. Manufacturers respond to market dynamics very quickly in order to maintain steady profits.Footnote 114
These commercial pressures have serious consequences for the production cluster as a whole: ‘Natural vegetable mixtures are being replaced by synthetic materials as they are cheaper to produce, take less time to prepare as compared to the lengthy natural dyeing process [which] has increased the artisan’s exposure to potential hazards. A study … revealed that 95% of printers and chemical mixers suffer from asthmatic tendencies or chronic bronchitis and other respiratory issues [while] 61% of workers have below normal hand grip strength.’Footnote 115 To the extent that registered GI status increases the visibility of traditional textiles and facilitates access to new markets, this often generates associated pressures to scale up production volumes while reducing production times. From an environmental sustainability perspective, economic success can be a double-edged sword.
A counter-example can be found in the Harris Tweed industry, which is recovering from a period of decline by prioritising design-led innovation in recent years. ‘The environmental impact of a small pedal powered industry, such as the Harris Tweed® industry is comparably low to those of a greater scale, or which require a greater amount of automated machinery.’Footnote 116 It also showcases a single country of origin supply chain, with the wool being sourced from the United Kingdom.Footnote 117 Significantly, the artisanal element is a core legal requirement that is respected in practice. Harris Tweed is defined as ‘tweed which … has been handwoven by the islanders at their homes in the Outer Hebrides, finished in the Outer Hebrides, and made from pure virgin wool dyed and spun in the Outer Hebrides’.Footnote 118
The preceding analysis therefore does not imply that any innovations in the traditional textile space are impermissible.Footnote 119 In legal terms, environmentally harmful backsliding could be framed as inadequate GI enforcement against third parties outside the GI club who misuse the protected term without complying with the specification requirements. Where producers within the GI club also begin to adopt such undesirable methods, it points to inadequate verification mechanisms.Footnote 120 Robust enforcement needs to be accompanied by a supportive web of interlinked policies, to assist those producers who do follow sustainable methods of production. These include loans to provide working capital for investing in raw materials, tools or (recognised) technology; assistance with certification compliance; financial support with marketing, attending international exhibitions, distribution and accessing export markets; the introduction of innovative new designs; and establishing e-commerce channels.Footnote 121
10.4 Conclusion
For traditional textiles, GI protection offers the potential for both increased visibility and more effective legal protection for a hard-earned reputation. Supporting traditional textiles through this form of IP has additional synergies with the shift towards more sustainable production and consumption in the global fashion industry. By utilising natural fibres, organic dyes, artisanal modes of production and fabrics intended to be worn multiple times, GIs are positioned as the polar opposite of fast fashion; as ‘threads that last’. This chapter has investigated whether there are legal and institutional mechanisms to systematically reinforce sustainability commitments, focusing on recent legal reforms in the EU that accommodate sustainability undertakings within a GI product specification, as a case study.
However, sustainability is understood in different senses. While the agricultural GI regime embraces the social, economic and environmental dimensions of sustainability, the crafts and textiles regime prioritises economic sustainability, given the relatively small-scale nature of production. This is an oversight, since commercial pressures can lead to adaptations being introduced that are justified in economic terms but have significantly detrimental environmental consequences. The EU experiment therefore offers practical methods to lock in sustainability commitments for traditional textiles while also reminding policymakers that synergies between different aspects of sustainability should not be taken for granted.
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