Data is one of the most valuable resources in the twenty-first century. Property rights are a tried-and-tested legal response to regulating valuable assets. With non-personal, machine-generated data within an EU context, mainstream IP options are not available, although certain types of machine generated data may be protected as trade secrets or within sui generis database protection. However, a new IP right is not needed. The formerly proposed EU data producer’s right is a cautionary tale for jurisdictions considering a similar model. A new property right would both strengthen the position of de facto data holders and drive up costs. However, with data, there are valuable lessons to be learned from constructed commons models.

The edifice of trade mark registration exists primarily to provide useful information. Registers tell us who owns what. They signal the existence of exclusive property rights associated with commercial signs, thereby allowing other traders to plan around that information. These signals exist in ever increasing numbers. According to the World Intellectual Property Organization (WIPO), an estimated 9.11 million new trade mark applications were filed worldwide in 2017, while in the same year there were an estimated 43.2 million active trade mark registrations at 138 offices worldwide.2 Until recently, it was axiomatic that registers for marks were directed at human readers – an applicant for a trade mark, trade mark registry examiners, vigilant competitors, employees of search and watching agencies as well as the occasional judge. This list now has a new entrant. What are the implications for the registered trade mark ecosystem, when algorithms begin to efficiently and comprehensively read trade mark registers?

Contemporary newspaper headlines are a constant reminder that a sense of place matters. This sensibility applies to traditional regional foodstuffs, beverages and crafts as well. Provenance matters, since our consumption choices in the aggregate have socioeconomic consequences. Our purchases have an impact on regional economic development, ecological sustainability, global transport systems and the relationship between urban and rural areas.1 Geographical indications (GI) regimes facilitate the signalling of this provenance. As a form of intellectual property (IP), they protect the collectively generated brand value associated with designations for traditional regional products. Prominent examples include “Scotch” for whisky, “Champagne” for sparkling wines, “Darjeeling” for tea and “Parmigiano Reggiano” for cheese. According to the World Intellectual Property Organization (WIPO), in “certain jurisdictions, GIs may be protected through a system that applies specifically and exclusively to them – a sui generis system of protection. Such systems establish a specific right, a sui generis right, over GIs, separate from a trademark right or any other IP right.”

OF ALL THE products that qualify as protected geographical indications, Champagne's prominence is undeniable; it veritably sparkles. Within its enticingly translucent green-glass walls of reinforced thickness, the bottle successfully contains the burgeoning effervescence arising from successive fermentations. All is seemingly calm until the celebratory uncorking. Champagne is therefore the perfect metaphor for understanding geographical indication protection systems, and wine appellation regimes in particular.

Beneath the surface of the “naturalized” claim—that the geographical features of a region influence product quality— lies considerable agitation and volatility. Indeed, the very question of whether we call the wine “champagne” or “Champagne” is still argued over, much like the disputes that arose over which locations could produce Champagne. The intertwined socio-economic and legal histories of Champagne show these fault lines, and help to explain how a distinct or sui generis legal regime came to protect regional brands.

Modern intellectual property law has grappled with the question of how to protect such potentially valuable regional brands since at least the 19th century. Trademark law seems to be the obvious choice. However, signs such as Champagne are inexorably considered descriptive—they describe the geographical region of origin, such as Parma for ham or Colombia for coffee— and cannot distinctively identify a specific commercial undertaking, like Coke®.

These designations can also be used collectively by all legitimate producers within the region, whereas trademark law presumes that an individual commercial entity is claiming exclusive use over a sign. To some extent, these hurdles have been overcome within trademark regimes, in the form of certification marks or collective marks. However, these (initially significant) obstacles led to the adoption of a distinct, registration-based system of protection for such regional brands and Champagne was deeply implicated in its emergence.

Over the past half-millennium, the wine's journey to iconic status has been neither smooth nor inevitable.