One of the most pressing arguments involving “like” products revolves around the classification of these items.
One method that was used to distinguish “like” products is the process and production method (PPM). This method is rather controversial as it allows for identification of distinct features of each product right down to the individual steps in the processes involving its production, therefore giving rise to many more different ways for countries to argue whether their products can be considered a like product. For example, Japan attempted to use the differences in packaging as an argument factor, which was subsequently rejected by the international court on the grounds that the physical properties of the shochu itself, remain unchanged despite the said differences in the packaging. Therefore, the argument here lies in whether aspects of a product such as packaging have relevance as determinants in classifying like products.
In this case we have to examine the relevance of the packaging of the product as a distinctive factor. The packaging of a product is a largely marketing centered aspect of the product, which will impact the demand of the product through the influencing of consumer perception of the product. However, it must be noted that while marketing is a contributing factor on the sales of a product, packaging forms a rather small component of marketing, compared to other aspects such as product advertisement. Also, the nature of the packaging of Shochu and liquors are largely similar, involving mostly words describing the liquor and to a lesser extent pictures representing the area that the raw product was source from, which seems unlikely to create major differences in perception of the utility of the product. It can thus be said that despite the fact that packaging may have some relevance in acting as a factor affecting the demand of liquor, the fact that it plays such a minor role and is largely indistinctive significantly diminishes its relevance.
Other aspects under the PPM which might have been used to determine distinctive factors between shochu and spirits, such as the distillation process, filtration process or the ageing, are also questionable as distinctive aspects of the beverage. These factors, unlike packaging, largely affect the supply rather than the demand side of the product. They impact the production cost of the liquor, in terms the kind of technology required for machines to perform distillation on the base product of the alcohol. In examining for distinguishing factors, it would be reasonable to examine factors that impact both the demand side and supply side of products, as...