What has happened?
- The EU is seeking to strengthen the geographical indications (GIs) system for wine, spirit drinks and agricultural products. Political agreement has already been reached by the European Parliament and Council on a revised draft regulation which will replace all existing regulations.
- The new regulation aims to increase the use of GIs across the EU, simplify the registration procedure for GIs, and increase the protection afforded to GIs, especially online and when used as ingredients in other products.
- The proposals also include provisions on empowerment of user groups, as well as provisions allowing certain producers' groups to make sustainable practices a mandatory aspect of their GI-protected products.
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The developments are relevant not just to those in the wine, spirit drinks and agricultural products industries but more widely: GIs need to be factored in when clearing new brands for use and registration. The law relating to GIs also needs to be considered if a GI is used to market a product because that product contains the GI as an ingredient.
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The proposals come at a time when a new Regulation giving GI protection for craft and industrial products has come into force (article here).
Want to know more?
What are GIs?
Geographical indications are a type of IP right that protect products having qualities, characteristics, or reputation essentially attributable to their place of origin. GI registration requires at least one of the production, processing or preparation processes to take place in the specific region. However, the ingredients do not need to come from that region.
GIs have been recognised internationally since the 1800s and protected by the EU from the 1970s. The EU register currently contains over 3,500 names of wines, spirit drinks, agricultural products and foodstuffs protected as GIs, including champagne and Roquefort. The EU has also concluded more than 30 international agreements allowing the recognition of EU GIs in other jurisdictions outside of the EU.
The proposals
The current proposals focus on the following main areas.
Introducing a single legal framework and a shortened, simplified registration procedure
Currently, there are different procedures and rules for the protection of GIs for food, wine and spirits – these will be merged into one set of rules with shorter registration times that should result in an increase in GI registrations. The proposal includes establishing an electronic EU register of all GIs that will be accessible to the public and will provide information both to consumers and traders.
While the proposal considered the possibility of partially outsourcing the procedure for registration, amendment and cancellation of GIs to the EUIPO, the proposal currently suggests that the Commission should remain in charge of all of these aspects of the process.
Increasing protection of GIs as ingredients
The new regulations will expand the protection of GIs when they are used to market processed products where those products contain the relevant GI as an ingredient. Examples would be using the Champagne GI to market chocolates containing champagne.
At present the law in this area is fleshed out in case law including the ECJ ruling in Comité Interprofessionnel du Vin de Champagne v Aldi. This states that a GI can only be used as part of the name of a processed product if the product protected by the GI is an essential attribute or characteristic of the processed product. That would mean that, in the example just given, the processed product would have to have a taste attributable to the presence of champagne.
Under the new regulations, operators would be able to use a GI where a processed product contains, as an ingredient, a product designated by that GI provided that such use is made in accordance with honest commercial practices and does not weaken, dilute or is not detrimental to the reputation of the GI. However, a GI designating a product ingredient cannot be used in the food name of the related processed product, except with the agreement of a producer group representing two thirds of the producers of the GI.
This would severely restrict the use of GIs as part of processed product names where the processed product in question contains the product protected by the GI as an ingredient.
Increasing protection of GIs online
The proposed regulation will also prohibit the names of GIs being used without authorisation in domain names in certain circumstances, with relevant domain name registries having to specifically recognise rights in GIs.
The proposed Regulation will also establish rules to ensure appropriate labelling of products sold via online platforms to try to reduce the risk of fraud, and will give Member States the powers to block any content infringing a GI in their territories.
Recognising sustainable practices
Producers' groups will be able to decide that specific sustainable practices are mandatory for use of the GI, in which case, they will be included in the product specification for the GI. A non-exhaustive list of sustainability practices will also be published as an incentive to producers. Sustainability can be as to environment, economic or social factors (including animal welfare).
Empowering producers' groups
The new rules will include the establishment of a voluntary system of recognised GI product groups, including farmers, farm suppliers, intermediate processors and final processors, to be set up by each Member State. The criteria necessary to qualify as a recognised producer group and the related specific additional rights will also be established.
The main incentive for producers to join producer groups will be the ability to manage and develop their GIs (including the means to better identify and market the specific characteristics of their products) and access to better tools to enforce their rights against unfair practices.
Recognised producer groups will have further powers, such as liaising with intellectual property enforcement and anti-counterfeit bodies, taking enforcement action, including filing applications for action with custom authorities, and recommending to the national authorities binding rules to be adopted in respect of the supply of products designated by a GI.
The enforcement of GIs will remain the responsibility of each individual Member State while the EU Commission will retain its role in the prosecution of all GI applications.
