Cultural Branding,Geographic Source Indicators and Commodification

Introduction

Consumers assign value to products based on their place of origin, and western companies frequently attempt to profit by association with the ‘traditional’ products and methods of non-western cultures and places. In western countries, intellectual property law – particularly trademark, since it is concerned with the naming and branding of goods – has traditionally been invoked to keep freeloaders away from the value accreted to a product or brand. Could a similar strategy help the producers of traditional products? The logic is clear enough: global consumers demand ‘Coke’, and they are rewarded with the product of one, specific corporation. If global consumers are going to demand ‘Darjeeling’ tea, then it only seems just that they should get something from India, and not from Benetton.

This is a high-risk strategy because traditional products are also typically associated not with a corporate identity but with specific places and the cultural groupings presumed to inhabit those places. That is, not only does the strategy attempt to use the tools of neoliberal capitalism against neoliberal capitalist accumulation, but it involves an obvious fetishization of the land and people who live there. Nonetheless, a substantial momentum is growing for such ‘geographic indicators’ (GIs), supported by European agricultural interests (who seek protection for ‘Parmesan’ cheese, ‘Champagne’, and so forth) and initiatives in numerous developing countries. For example, rooibos (‘red’) tea has traditionally been grown only in the Cederberg region of South Africa. Recently, it has become popular in both the US and France, and the South African government has pursued litigation to block both American and French companies from trademarking the term. The goal is that rooibos be protected as a GI, which would prohibit any tea not from Cederberg from being marketed with the name (Smith, 2013). Protected red tea would thus return both economic value and cultural recognition to indigenous producers.

In this regard, the GI would function as what Madhavi Sunder (2007), in offering a qualified endorsement, calls ‘poor people's property’:

Creating a protected brand allows one to stave off complete usurpation by mass-produced substitutes. The GI Act works on this principle. It rewards the local community for having created a valued reputation and protects that reputation from the forces of global commerce. It recognizes that consumers everywhere seek authentic products and that they may care about who produces something, not just the ultimate product. (2007: 116)

The present article brings an analysis of branding as part of the process of commodification to the question of the desirability of GIs. I argue that the general move within capitalism to branding culture puts the source-indicating function of trademarks radically into question. Increasingly, consumers consume brands not for the products they designate, but for the affiliation with the brands themselves. People live partly in and through their possessions, and in this sense an elective brand affinity can serve to mark or express aspects of a consumer's identity by associating her with desired cultural meanings. ² Since the benefits of source protection to indigenous communities depend upon a consumer's desire to have a product actually from that source community, if consumers care more about the brand designation than the actual source, those benefits will be more difficult to realize. The move to branding will therefore exacerbate the risks of fetishizing land and communities, while undermining the benefits of geographic source protection. As a result, the logic of trademarks in late capitalism will tend to push geographic source protections toward becoming de facto IP rights in culture.

The article proceeds as follows. The next section argues that aspects of the logic of commodification and branding lead to an emphasis on brands themselves as sources of value, rather than the products to which they refer. The third section uses this theoretical frame to discuss the risk that geographic source protections will tend to reduce cultural diversity, both by tending to promote exoticized images of cultures and by increasing the importance of standardization. The fourth section situates these concerns in the larger context of David Harvey's work on capitalist accumulation, in order to underscore how the reification of culture discussed in the third section can be used as a tool by cultural elites to suppress dissent and treat the source protection as intellectual property rights in culture. The concluding section offers some brief policy suggestions for ways to ameliorate these risks.

Trademark and the Logic of Commodification

The process of bringing goods to market is a complex one, particularly if they are to be purchased or consumed far from where they are produced, as the increasing distances and multiplication of intermediaries between producer and consumer work to decrease the ability of consumers to develop an informed opinion of the product before purchase. ³ Two aspects of that process are central as it relates to geographic source protection. The second, familiar from the literature on trademark and branding, is product differentiation: producers need to have at their disposal an array of strategies which distinguish their goods from those of competitors. The first, less familiar but as important in the present context, is standardization, whereby the products that will come to bear a particular mark or brand acquire a consistent set of attributes and techniques for evaluating them.

Standardization, which happens first, is necessary in the production process because consumers, particularly non-local ones, need to know that products they purchase from a given vendor and with a given designation today will be the same as the supposedly identical product purchased yesterday. The biggest challenge here is that the production process has to be homogenized enough so that its output is consistent; for products that are to bear some sort of official GI designation, it is often not just the result which has to be consistent but any number of elements of the production process itself, since those are understood to be significant contributors to its value. In order for all of that to happen, there must be some sort of specification as to which of the indefinitely many possible characteristics of the good are to count as its qualities, and of standards for how those qualities are to be measured and evaluated (Callon et al., 2002: 198–9). Some of these qualities, such as weight, are obvious, but others – terms like ‘pure’ or ‘traditional methods’ – can require extensive specification, and ethnographic research into niche products such as canola oil (Busch and Tanaka, 1996), ‘quality’ salmon (Hébert, 2010), Burmese teak (Bryant, 2013), fresh produce (Freidberg, 2004), organic vegetables (Buck et al., 1997) and surimi (Mansfield, 2003), which attests to the substantial changes and disruption that standardization can bring in its wake.

Product differentiation presents a different kind of problem, which is that, as Franck Cochoy (2002) memorably notes, the modern consumer frequently finds herself in the position of Buridan's ass, needing to choose between two commodities that are (virtually) indistinguishable. Producers face, in other words, an unending need for product differentiation strategies as competitors enter the market with similar products. One tool for producers is the brand, which is, following David Aaker, a ‘distinguishing name and/or symbol (such as a logo, trademark, or package design) intended to identify the goods or services of one seller or a group of sellers, and to differentiate those goods or services from those of competitors’. In particular, he adds, brands serve to indicate the ‘origin’ of a product, and to protect both producers and consumers from being confused by competing products (Aaker, 1991: 7; see also Pike, 2013: 320–2). The need for trademark – which, at the risk of oversimplification, has more or less the same extension as brand – is immediately apparent: brands could not perform their differentiating function if competitors could simply identify their own products with the same mark. Trademark is thus a legally protected brand or product indicator, and the owner of a trademark enjoys more or less exclusive use of it in commerce. ⁴

Two further features of trademark and branding need to be underscored. First, a brand's indication of a product's ‘origin’ serves to occlude any details of the process by which it is actually produced, such as what it is made of, or where it is made (Cochoy, 2002: 61–2). The association of a brand or trademark with a particular product is in this sense arbitrary, and the attribution of origin is mythological in the sense that it presents whatever narrative about the origin of the product the producer wants to communicate (Silbey, 2008). Further, as Pike (2013) has noted, the cultural meanings of brands inescapably interact with the cultural meanings consumers attach to their place(s) of origin, and the curation, construction, manipulation and occlusion of these interactions is an important part of branding strategy. As Pike notes, geographical indications and other kinds of intellectual property are integral to the branding process (2013: 327). Thus, producers use a variety of narrative strategies to shape and stabilize consumer associations between a brand and the product(s) bearing its name, including associations with the product's geographical origin (‘German engineering’ or ‘traditional Indian’). Jessica Silbey gestures to the social complexity of this process:

Branding, the art of trademarks, is as much about market share and consumer identification as it is about personal identity politics in today's twenty-first century. We buy goods for what they are and for what they say about each of us: our hipness, athleticism, politics, or sexual preference. Insofar as trademark law revolves around the consumer construct, the trademark origin myth tells the story of how to be unique and different in today's visually crowded and stimulated society. (2008: 363)

These features interact to produce an incentive for producers to treat successful brands as commodities, independently of any particular product to which they might be attached. Indeed, this result can be viewed as the logical extension of the process: if the brand itself has value, and if there is no intrinsic connection between the brand and any particular product, then it makes sense for brand owners to detach the brand from the product, if the greater value is in the brand. In particular, since a trademark is, by legal definition, distinctive in a way that the product to which it refers may not be, marketers increasingly encourage consumers to develop attachments to trademarked brands even more than attachments to products. ⁵ Brand attachments both encourage consumers to draw upon their experience with products bearing the same mark and (because they are distinct) consistently differentiate a producer's goods from those of her competitors.

Globalization pushes all of this further, as most consumers have little information about the origin of their products other than as products somehow originating with the trademark holder. In other words, to the extent that consumers value non-local goods on the basis of attributes claimed to derive from origin, those attributes are either experience or credence-based, since consumers will not be in an epistemic position to assess whether geographically-specific products ‘authentically’ capture whatever is salient about their origin, at least not until after they consume them, and possibly not even then. In such a context, brands and origin labeling become even more valuable, since they provide some pre-purchase guidance to consumers. Reflecting this growing importance of brands and branding, trademark law now protects against ‘dilution’, diminishing the value or distinctiveness associated with the mark, independent of any association with particular products. There are two principal kinds of dilution: tarnishment and blurring. ‘Tarnishment’ occurs when someone uses a sufficiently similar mark on a product that could be said to damage the owner's reputation (as, for example, on pornography or drugs). ‘Blurring’ is the broader, non-derogatory version of the claim, as, for example, using the name ‘Tiffany’ to refer to a restaurant. In either case, the point is that the signifier's ability to refer exclusively to the producer's chosen referent is diminished by the introduction in consumers’ minds of extraneous meaning. ⁶

This point about detached brands is evident enough in, for example, the ubiquitous presence of ‘Hello Kitty’ logos: someone who purchases a ‘Hello Kitty’ lunchbox and shirt is making a decision based at least in part on the logo, and may even be more interested in the logo than whatever product bears it; no contextualized history of the production process is relevant. Although Hello Kitty is largely a detached signifier – few individuals could associate it with an original product – brand detachment is evident even in corporations central to the industrial economy. Thus, a 1999 Financial Times article quoted a Ford executive predicting that the ‘manufacture of cars will be a declining part of Ford's business’, to be supplanted by ‘design, branding, marketing, sales, and service operations’ (quoted in Katyal, 2010a: 800).

This, then, is the immediate theoretical context in which geographic indicators need to be assessed. Empirically, consumers care about geographic origin and the ‘authenticity’ it confers to the point that they will pay more for products manufactured at a corporation's ‘original’ factory over other production facilities owned by the same corporation (Newman and Dhar, 2014). Consumers will also pay more for products with country-of-origin labeling that points to favored countries, and this effect is more pronounced if the origin is a GI (Menapace et al., 2011). Meta-analysis of mostly European research also finds that consumers are willing to pay more for food products containing GIs (Deselnicu et al., 2013), especially in markets where there are not already strong brands. This result comports with work by, for example, Aaker, arguing that establishing the authenticity of one's own brand is a way to create barriers to the entry of competing products, and that where there are competing brands, association with a specific region bolsters the authenticity of any product that can credibly claim that association (Aaker, 2011: 283–6). In short, credible claims of geographic origin appear to increase the willingness of consumers to pay for goods bearing those claims, and geographic indicators (GIs) can be viewed in this regard as an extension of country-of-origin (COO) labeling. What GIs add is the property-right-based ability to exclude: anyone producing a commodity in France can put ‘product of France’ on the label. GIs make it possible, in certain cases, to prevent others from doing so. They thus serve as a more robust signal of a product's authenticity. What, then, is the cost for the high(er) price of authenticity?

Eating Culture?

As noted above, brands and trademarks inherently fetishize the origin of products, by presenting them as originating in a corporate entity. Geographic indicators inherit this feature, most obviously in that they seem to strangely fetishize a geographic space and the culture presumed to inhabit it (Hughes, 2006: 360; Parry, 2008). However, it is not just the land that is fetishized: the term also subsumes consideration of the production process into the geographic designator, since it is products that involve both a specific place of origin and a ‘traditional’ production process that can receive source protection.

In this way, GIs smuggle in a dated and arguably dangerous conception of culture under the banner of the mystified land on which that culture traditionally resides. For a given parcel of land, the regime seems to propose, there is a univocal, well-defined cultural grouping that can, because it inhabits that land, be designated as the ‘source’ of the products in question. The difficulties with this view of culture are well-documented, and need not be of direct concern here. The problem here is how the economic logics of standardization and differentiation encourage the problem.

Consider the case of Indian handlooms (the following derives from Vinaya, 2012). Highly distinctive, local, and economically significant to those who weave on these looms, this sector is the second largest employer in India outside agriculture, and is under constant threat from machine looms. Most handlooms are produced in individual households in rural areas. The challenges in standardizing production enough to guarantee ‘quality’ in such a case are significant, not least that the model of production makes economies of scale difficult to achieve. Not only that, but there are issues of supply chain integration, legal paperwork, and marketing, all of which require resources beyond what local households can supply. On top of this, there are further problems with the tendency of the caste system to undermine the trust necessary among individual weavers. Finally, as Vinaya emphasizes, ‘there exists a near absolute disconnect between the individual weaver and the market. The weaver who often works for the master weaver or cooperative has no information for whom the product is produced or how it is marketed’ (2012: 62–3). Overcoming these problems pushes such distributed production systems in the direction of western firms, with their centralized and hierarchical structures. Beyond the increased resources centralization brings, there are economic incentives as well: empirical research also suggests that, for products with a complex production process (say, olive oil, as compared to fruit), the more tightly the designation of source controls that production process, the greater the price premium it commands (Deselnicu et al., 2013).

The risk is that the trademark protection, in this way, serves to create the cultural homogeneity that supposedly legitimates it. If traditional producers of sarees from Mysore do not produce wraps that meet the designation, they have little choice but to adapt their production process to the standard. This process is endemic: if source indicators are to perform their differentiating function, they have to standardize as well. Thus all products that claim to be ‘Mysore’ sarees will have to comply with the strict requirements encoded in the source designation. The more such goods and services become homogenized under the source appellation, the more diversity in their production process is lost to the logic of commodification. Perversely, in other words, the production of cultural products according to a legal standard can reduce cultural diversity.

The focus on branding can be expected not just to homogenize but to occlude the production process. Recall that, in a globalized economy, consumers will often know very little about the places where their goods are produced, even when (as in the case of GIs) those places are used for product differentiation. From the point of view of the consumer, geographic indicators thus serve as a cognitive shortcut in that they enable a consumer to feel that a product's invocation of attributes associated with its stipulated origin is authentic. What is valuable in this process, however, is not obviously the product or its connection to the place itself; it is the feeling of terroir or the sense of authenticity consumers experience. It is true that with source protection designation, the products allowed to evoke the relevant source associations will in fact have to come from the designated areas, but nothing about this process implies that the consumer will be in a position to care about the actual production of the commodities. In other words, consumers value certain product attributes and their associations with a specific place of origin, or they value associating themselves with attributes associated with that place of origin. The question is thus how consumers form these associations.

Very few consumers will have been to the relevant place or otherwise have experienced the cultural products directly, and so most will rely on intermediary sources. Some of these intermediaries that shape consumer perceptions can be family and friends, but media and other images are a more likely significant source of consumer information, particularly for goods where family and friends may also lack direct cultural experience. In this environment, many of the attributes a consumer will associate with a place will invariably involve readily available cultural stereotypes. Consumers thus have to rely on a brand and its interaction with their cultural stereotypes. Consumer reliance on cultural stereotypes then compels producers to present those stereotypes. Indeed, consumers do not want their stereotypes undermined, and one recent study suggests both that country-of-origin labeling affects consumers’ subconscious and emotional responses to products (even when they deny it cognitively), and that advertising needs to match these stereotypes in order to improve brand evaluations. Mismatches make consumers less likely to intend a purchase, so much so that ‘as far as purchase intentions and positive word-of-mouth are concerned, it is better not to evoke the COO at all rather than to communicate it in a way that is dissonant to the underlying country stereotype’ (Herz and Diamantopoulos, 2013: 412). This process has its own logic: in order to get consumers to want to buy source-protected ‘Persian’ rugs, it is necessary to associate the rugs in their minds with an image of a ‘traditional Persian’ community (and, most likely, detach them from any associations with the current nation-state of Iran). The need for product differentiation compounds the problem, since the more exotic the image is, the more distinctive it will be in the competing marketplace of carpet brands and, thus, the better a trademark it will be. As competing products enter the market, consumers will likely require increasing levels of cultural fantasy: why should one choose ‘Persian’ rugs over ‘Arabian’ ones?

In short, consumers are necessarily part of the process of product qualification (Callon et al., 2002: 201), and there is no reason to suppose that disconnected indigenous producers will be able to impose their specification of protected products on western consumers. Because consumers will arrive with any number of highly-mediated assumptions about the place that produces protected products, and because producers have to cater to these assumptions, trademark protection serves to protect an imagined pure culture and its products, even if the products protected are substantially the result of exoticized images in consumers’ heads. The process thus risks generating the sorts of problems bell hooks outlines in ‘Eating the Other’ (1999). As hooks proposes, trade in the bodies and products of ‘authentic’ indigenous peoples tends to uncritically absorb nostalgia for a (manufactured, imaginary) ‘primitive’ cultural otherness. At the same time, and equally problematically, it can embody a sense of the westerner as cultural tourist, able to move freely between and among cultural associations, with an identity created at the intersection of an eclectic mosaic of components. While this understanding of selfhood has much to recommend it on its own, when it is paired with branding strategies that emphasize cultural authenticity in products, cultural eclecticism becomes a privilege accorded only to western consumers. These consumers, as it were, produce themselves, whereas indigenous producers express their culture. Geographic indicators attempt to remedy some of the asymmetrical distribution of power implied in all of this by relocating the production of indigenous cultural products from multinationals like Benetton to actual indigenous producers. As the following section analyzes in detail, however, this relocation generates a new kind of problem: the feedback loop between western consumer stereotypes and indigenous product specification enhances the ability of indigenous elites to deploy that loop to their own advantage.

Uneven Development

These difficulties can be seen as instantiations of a larger process inherent to late capitalism: the use of geographically distributed monopolies. David Harvey writes:

Capitalists can and do use spatial strategies to create and protect monopoly powers wherever and whenever they can. Control over key strategic locations or resource complexes is an important weapon. In some instances, monopoly power becomes strong enough to inhibit the dynamism inherent in capitalism's geography, introducing strong tendencies towards geographical inertia and stagnation. The tendency towards spatial dynamism given by the competitive search for profits is countered by the bundling together of monopoly powers in space. (Harvey, 2003: 96–7)

In this regard, geographic indicators embody the tension between what Harvey calls capitalist and territorial logics of power (2003: 107), attempting to resolve it by territorializing capitalism. First, GIs attempt to level the playing field: when indigenous producers lose their natural monopolies to IP-protected imports, they can at least achieve comparable levels of protection for their own products. Second, they attempt to block the ability of others to appropriate the production of the goods and terms associated with their communities by enclosing those goods as private property. It seems unquestionably to be the case that multinational corporations will use IP to attempt to shut indigenous communities out of profits derived from goods associated with them, as the early experiences with basmati rice, rooibos and other goods indicate. Harvey suggests that such enclosure processes be understood in the categories proposed by Marx's theory of primitive accumulation, to which he gives the general name ‘accumulation by dispossession’.

According to the logic of accumulation by dispossession, wealth is generated by ‘the conversion of various forms of property rights (common, collective, state, etc.) into exclusive private property rights; the suppression of rights to the commons’, and so forth (2003: 145). Those who formerly had those rights lose them, and whatever value they possess is available for private accumulation. Harvey cites cultural branding in this category: ‘the wholesale commodification of cultural forms, histories, and intellectual creativity entails wholesale dispossessions’, noting that ‘the music industry [for example] is notorious for the appropriation and exploitation of grassroots culture and creativity’ (p. 148) and the ‘pillag[ing] of regional traditions’ (p. 92). Simply insisting on a commons isn't enough, due to the need to fence out non-local producers; Chander and Sunder (2004) thus caution against the ‘romance of the public domain’: by declaring something off limits to property protection, one leaves the door open for western companies to use their superior production and distribution capabilities to capture all of the value associated with indigenous goods.

For its part, what the reification of culture and space presupposed by geographic source protection risks is repetition of the pillaging at a local level. That is, if it is the case that western producers can appropriate the value associated with culturally-identified products for themselves, shutting out local producers, it is also the case that local elites can appropriate that value for themselves. The way for doing so is prepared by the standardization process itself, which, as the case of Indian handlooms illustrates, can push decentralized and distributed production processes into the model of firms, establishing numerous points of hierarchy in marketers, master weavers, and so forth. In so doing, by excluding other meanings and forms of those products, these processes risk dispossessing individuals both of their own cultural self-understandings (as experienced in the goods they produce) and whatever economic opportunities those different meanings might have afforded. As Harvey puts the general point, ‘ambitious factions, often working at the local level, can extract surpluses … at the expense of fellow citizens as part of a strategy of self-insertion into the world market’ (2003: 93).

Beyond handlooms, one can cite numerous examples of this process in areas that are closely analogous to trademark. Here are three. First, Sunder (2001) notes how a US Supreme Court decision (Boy Scouts of America v. Dale, 2000) allowed the Boy Scouts to dismiss gay leaders on the strength of assertions by the national leadership that the organization condemned homosexuality. However, not only did the decision ignore considerable evidence that the leadership's assertions masked a great deal of dissent and discussion among rank-and-file members of the organization, the decision also empowered the organization to then punish and expel members that disagreed with its chosen brand identity. In other words, assigning legal imprimatur to the cultural definition of a group of elites allowed those elites to impose traditional power structures on the group in a way that they had been unable to before; as Sunder puts it, law in this sense ‘regressively treats cultural meanings like the private intellectual property of a culture's leadership’ (Sunder, 2001: 552).

For a second example, consider the release of the diaspora Indian film Fire, which depicts a lesbian relation between two middle-class Hindu women. The film caused a cultural firestorm among Hindu cultural nationalists, who tried to have it suppressed, largely because it violated their view of the ‘good Indian woman’. Ironically, this image was itself the product of the struggle against western imperialism, and an effort to differentiate an essentially good ‘Indian woman’ from a sexually promiscuous ‘western woman’. As Sunder notes, nationalists had ‘conceived Indian culture as having an essential meaning that needed to be legally preserved and protected against dilution by foreign influence, and sought an absolute right to define Indian culture and to exclude meanings that contradicted their definition’ (2000: 75). In such a context, adding intellectual property protection to cultural identities only makes the situation worse by providing a legal mechanism to efforts at suppression; ‘where law has traditionally allocated rights to exclusive control and exclusion over intellectual products in order to provide economic incentives for production, it now contemplates awarding intellectual property rights in order to protect the identity of the property owner, regardless of the economic consequences of nonprotection’ (2000: 71–2). The situation is even more complicated than this, however, as the director, Deepa Mehta, actually lives in Toronto. The film and debates surrounding it thus also implicate the rights of those in the diaspora to ‘represent’ their culture (for the argument that the film lapses into colonial images and stereotypes, see Goswami, 2008).

A third set of examples derives from the commercial use of Native American artifacts and symbols. For example, consider the NCAA's prohibition on the use of Native American symbols and tribal names by college sports teams. The first exemption to this prohibition was granted to the Florida State ‘Seminoles’, following approval by the Florida Seminoles. However, not all Seminoles live in Florida, and the Attorney General for the Oklahoma Seminoles expressed strong opposition: ‘I am deeply appalled, incredulously disappointed … I am nauseated that the NCAA is allowing this “minstrel show” to carry on this form of racism in the 21st century’ (Wieberg, 2005). Or, again: an appeals court upheld the conviction of Richard Corrow for trading in sacred Navajo artifacts, despite the presence of conflicting narratives about the status of these objects from within the Navajo community (United States v. Corrow, 1997). As Naomi Mezey comments,

by upholding the conviction, the court legitimated a particular account of Navajo culture within the tribe and clarified the relation of the tribe to ‘its’ culture. It did so by taking the contested and contextual understandings among tribal members of property and ownership of sacred tribal objects and reformulating it all as ‘cultural property’. (2007: 2016–17)

The Navajo Nation is similarly pursuing dilution claims against the retail clothing chain Urban Outfitters (Tushnet, 2013). The Zia of New Mexico have demanded compensation from the state government for appropriation of its religiously significant sun-symbol, while simultaneously licensing the symbol to Southwest Airlines. The Zia have also pushed back against Navajo appropriations of Kachina dolls (Brown, 2003). Examining cases such as these, Peter Yu underscores the general point that cultural boundaries are often fluid and contested, with different groups claiming ownership of similar symbols, practices and products (Yu, 2008: 488–90).

Harvey's comments about accumulation by dispossession offer a framework within which to situate these examples. Together, they suggest how the trademarking process creates a source of wealth not so much in a product, but a product insofar as that product is associated with a traditional image of a culture. Insofar as cultural elites will be in a position to capitalize on that wealth and those property rights, they will be in a position to dispossess both the initial creators of the cultural image, and those who dissent from it, of the value (either economic or personal) of their cultural meanings. That is, what source protection gives a cultural grouping as a whole, it risks taking away from marginal members of that culture, precisely to the extent that it offers the group protection as a whole.

Insofar as global trademarks increasingly focus on brand images and less on goods, the risks of accumulation by dispossession will increase, since the percentage of the value associated with the traditional image, as opposed to the product itself, will also increase. This, in turn, increases the risk that the geographic indicator will become a de facto intellectual property right in culture. One can identify at least two pressures. On the one hand, the accretion of value to the cultural image will tend to reinforce the dominance of the reproduction of the image at the expense of the reproduction of different sorts of commodities: products of a culture – even those with robust brand identities – will be increasingly required to conform to the image that culture projects. On the other hand, as noted above, the cultural image itself – likely highly conservative already insofar as it is ‘traditional’ – will need to be increasingly so in order to differentiate itself from the other cultural images on hand. Insofar as a trademark communicates not just that a rug is sourced from Persia, but that ‘Persia’ endorses the product, it becomes normatively very important that this endorsement be, if not democratically obtained, at least legitimate in some meaningful sense of the word. ⁷

In between these pressures, a number of important issues of representation and cultural meaning emerge. One normative problem is that meaningful opportunities to dissent from the cultural environment in which one finds oneself (not to mention meaningful economic opportunities that require one to dissent) are necessary to any robust understanding of autonomy. As Sunder puts it, ‘dissent creates options within a culture and thereby offers individuals greater possibilities for autonomy and equality in their cultural lives’ (Sunder, 2001: 561). Critics of allowing cultural dissent in this sense typically invoke an ‘exit option’: if you don't like the culture, you are always free to leave it. Aside from the fact that this argument simply repeats the assertion that cultures are univocal, homogeneous groupings, in response to direct evidence to the contrary, the exit option is often not viable for those who need it. Sunder suggests that ‘exit’ in this context really means ‘exile’, in the sense that a person is forced to give up her own sense of identity to leave. Indeed, the availability of an exit option, or the perception by cultural elites that such an option exists, might very well make matters worse for dissenters, since they then can be told to leave. In addition, even a person who was ready and willing to exit would likely face prohibitive economic costs to doing so, particularly if she lives in a developing country. And, as Susan Moller Okin (2002) underlined, it is precisely the disenfranchised – typically women, though the argument clearly can be extended to other minorities – who will both be most in need of an exit option and least be able to exercise it.

A globalized world of geographically-based trademarks makes this constellation of problems more worrisome. At one level, the persistence of diaspora communities in different settings entails an inevitable heterogeneity among those who identify with a cultural grouping or set of cultural practices, and makes it much more difficult to say who ‘speaks for’ the culture. The controversy surrounding Fire demonstrates this point clearly, as does Florida State's usage of the ‘Seminoles’. At another level, however, globalization makes it increasingly difficult to exercise one's exit right. That is, even if one assumes for the sake of argument that exit rights are a theoretically adequate solution to the normative problems posed by assertions of cultural rights, they seem unlikely to succeed in that role in a globalized trademark regime. The problem is precisely that the global nature of these rights extends them into diaspora communities, into whatever space into which affected individuals might try to exit.

Imagine the case of a maker of ‘Persian’ rugs who, for political reasons, now lives in Canada. Under a fully globalized regime of source protection, the owners of the trademark would be able to legally enjoin his production of identical rugs, simply because he was in a different location. Not only that, if he produced rugs in some way that was not incorporated into the official standard, he would be unable legally to produce ‘Persian’ rugs anywhere in the world, no matter how many centuries his family had been in Persia making rugs. If a global source protection regime included dilution protections, then his problems might be even worse. One can easily imagine a tarnishment case in which a ‘Gay Persia’ adult-goods store is sued by the owners of ‘Persian’ rugs on the grounds that the adult goods damage the reputation of the rugs by associating the term with explicit sexual content. ⁸ Similarly, a blurring claim might arise from his production of ‘Persian brooms’. Assuming for the sake of argument that there is a univocal cultural identity signified by a brand, then exit rights either fail to preserve it (by allowing dilution, etc.) or they are oppressive of minorities and dissenting voices (by preventing it). ⁹

Conclusion: What Is to Be Done?

The problem identified here could be seen as an example of what Sonia Katyal, following the work of critical race theorists such as Kimberle Crenshaw, has identified as the ‘intersectionality’ of trademarks, which function as both commercial product identifiers and as expressive speech (Katyal, 2010b). The specific question which geographic indicators raise in this context is whether the commodification process necessary to turn the expressive cultural symbol into a product-identifying form of speech has effects on the expressive use of the symbol. In particular, to what extent might the commodification process tend to ossify the expressive use of a cultural symbol? The problem for GIs is that nearly every aspect of the process of registering and using them will tend to encourage the use of stereotypical and potentially disparaging signifiers as representative of a culture, insofar as those signifiers are the only ones that the consuming public will likely be able to identify in the first place. This can generate pressure either from western consumers or indigenous elites to produce commodities expressing those stereotypes. On top of that, the mark can then be used against dissident voices attempting to challenge their own representation.

That said, the problem for which GIs propose a solution is a real one. The appropriation of indigenous cultural goods by western companies is well-documented and serious. The question is the extent to which GIs can address that problem without inducing significant new problems of their own. If the argument here is correct, the protection geographic indicators afford against processes of dispossession by outside forces masks the risk of an analogous process of internal dispossession, whereby the logic of commodification involved in branding a product presents local elites with the opportunity to dictate the terms of cultural meaning itself. The difficult question is thus how to negotiate the problem. The increasing tendency of capital to extend its reach into all aspects of human life, including immaterial goods and cognitive labor (Berardi, 2009), makes such negotiation a pressing issue. In this context, I offer two points by way of a conclusion.

First, that this effort to use the tools of regional capital accumulation against global capital accumulation appears attractive at all primarily indicates the lack of any real alternatives. On the one hand, from the point of indigenous cultures, global capitalism – including the appropriation of cultural products by western companies – appears inevitable, and there is really no way for a culture to isolate itself from the rest of the world now, even if such isolation had ever been even theoretically possible or desirable. On the other hand, this lack of alternatives puts the struggle over source indicators and cultural products in the same theoretical space as other efforts to resist the inequities of global capital and its expansion into all aspects of life. There is thus an urgent need to develop an adequate theoretical vocabulary to both characterize such efforts and lend them persuasive, normative force, whether as ‘access to knowledge’ (Kapczynski, 2008), ‘cultural environmentalism’ (Boyle, 2008, 2003), capabilities and human development (Chon, 2006; Nussbaum, 2000), or some other theory. Consumers in western, ‘developed’ countries have, in a sense, more options, and such emergent practices as the slow food and locavore movements, and even the rising popularity of farmers’ markets in the US, can be seen as attempts to at least partly exit the industrial agriculture system. However laudable these efforts are, however, and however much they improve the lives of those who engage in them, they can only address the problems discussed here in a limited way. Most importantly, and even in the best case, they address only food and other consumables, and not any of the other types of goods for which GIs have been proposed. They also seem unlikely to make a significant dent in corporate biopiracy. Finally, as Susanne Freidberg (2004) documents, some of the rhetoric associated with these movements – ‘purity’ in particular – are problematic when applied from the outside to food supply chains originating in developing countries. In sum, locavore-style biopolitics may represent the right vision of food consumption, but those in developing countries will need additional tools.

Second, and more promising, there is considerable room for attempting to rethink ‘property’ beyond its narrow, neoliberal association with exclusive, private rights, and into such areas as stewardship; in the case of geographic indicators, this would at least have the advantage of democratizing claims to cultural possession (Carpenter et al., 2009). As Mezey (2007) points out, the core of what she calls the ‘paradox of cultural property’ is a disconnect between the fluidity of cultural formations, boundaries and meanings, on the one hand, and the fixity of property rights, on the other. There is, however, no necessary reason why cultural and juridical understandings of ownership need to take the form they do in current intellectual property law. In other words, neoliberal views of intellectual property themselves are cultural formations, subject to the same possible changes as the cultures of which they are a part. As western models of capitalism ‘go global’, it is not just the commerce in products and brands that needs to be viewed as bidirectional. It is the commerce in understandings of the terms and roles of law.