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PDOs and PGIs: geographical denominations protected by registration
Barbara M. Vroom-Cramer1
In July 1993, the Council Regulation (EEC) No. 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs came into force.2 This Regulation offers far-reaching protection options for the geographical denominations of foodstuffs. In addition to a short discussion of the contents of the Regulation, this article will detail those designations which have in the meantime been registered and those designations which are not eligible for protection because they are regarded as generic names. Attention will also be given to the legal problems that can emerge in relation to other protection regimes such as laid down in conventions (Convention of Stresa, TRIP’s Agreement) and jurisprudence.
1. Regulation 2081/92: Summary
PDOs and PGIs
In certain cases, the labelling and recommendations of cheese, meat products and other foodstuffs refer to geographical denominations. Instances include such products as Parma ham, Lübecker marzipan and Roquefort. In certain countries such as France, Italy, Spain and Germany, there is a great deal of interest in the legal protection of such designations. By way of contrast, for example in the Netherlands, there is scant interest for legal protection options. Nor is the Netherlands thus a signatory to the various bilateral and multilateral treaties that exist in this field, such as the Madrid Agreement or the Lisbon Agreement.3
Some years ago, at EC level, a Regulation was set down offering far-reaching protection for such geographical denominations, specifically aimed at agricultural products and foodstuffs. Summarized briefly, Regulation 2081/92 offers protection against the misuse of geographical denominations by manufacturers that are not established in the geographic area to which the name refers.4 The Regulation can, to be more precise, be applied to ‘agricultural products intended for human consumption’, certain foodstuffs and several agricultural products not intended for food (hay and essential oils - see Annex I and II of the Regulation). The legal basis of the Regulation is art. 43 of the EC Treaty.5 The Regulation distinguishes between Protected Geographical Indications (PGIs) and Protected Designation of Origins (PDOs). Stricter conditions regarding the connection between the product and region of origin apply to the latter category of designations. For geographical indications it is sufficient that the product originates from the region (place or country) after which the product is named and that “a specific quality, reputation or other characteristic attributable to that geographic origin, the production and/or processing and/or preparation of which takes place in the geographic area defined” (art. 2, para. 2, subpara. b). For designations of origin, it concerns the name of a product, the quality or characteristics of which are essentially or exclusively due to a particular geographic environment (with its inherent natural and human factors) and the production and processing and preparation of which take place in the geographic area defined (art. 2 para 2 subpara. b). In Intellectual Property Law there has long been a similar distinction between so-called indications of source (‘indications de provenance’) and designations of origin (‘appelations d’origine’). Designations of origin are seen as a species of the genus indications of source.6 Unfortunately, in drawing up Regulation 2081/92 the European Committee did not follow this terminology and introduced the term ‘geographical indications’. Close reading of the TRIP’s Agreement, that uses yet another definition of geographical indications (see below, subpara. 4), completes the confusion.
The European Committee keeps a Register of all PDOs and PGIs. The designations entered in the register are also published in the Official Journal of the European Communities (art. 6). Generic names (of course) are not eligible for protection.
The ordinary and the simple registration procedure
To gain protection, a denomination must thus be registered. Regulation 2081/92 recognizes two different registration procedures, the ‘ordinary’ procedure of art. 4-7 and the ‘simple’ procedure of art. 17. The ‘ordinary’ registration procedure takes place with the submission of a registration application to the member state within which the geographic area concerned is located. The registration application must contain a so-called ‘product specification’ which contains accurate descriptions of such aspects as the product, the means of production and the delineation of the geographic area (art. 4). The member state passes the request on to the Committee that, if after investigation it reaches the conclusion that the denomination is in principle eligible for protection, publishes the application in the Official Journal of the European Communities (art. 6 para 2). The remaining member states then have a period of 6 months within which to object to the intended registration. If an objection is made, the objection procedure set down in art. 7, must be followed. If no objection is made, the denomination is registered in the ‘Register of Protected Designations of Origin and Protected Geographical Indications’ (art. 6 para 3).
In the last few years, a (small) number of applications for registration have been submitted according to this ‘ordinary’ procedure’. In May and June 1996, the Official Journal published applications for Portuguese ham (Presunto de Barrancos), Spanish aubergines (Berenjena de Almagro), veal from Galicië (Ternera Gallegra) and Danish carrots (Lammefjord carrots). In August 1996, a registration application for Spanish ham (Jamón de Huelva) was published. In January 1997, applications were submitted for Portuguese meat products and so-called ‘Jambon de Bayonne’.7 The product specifications are mouth-watering. We read that Presunto de Barrancos is an “elongated, more or less pointy-shaped” ham. (...). The meat is streaked, has a pleasant, soft and delicate taste, is lightly salted and has a sometimes slightly sharp after-taste. The product is prepared according to an age-old technique, given that the oak forests of Barrancos have been legally protected since as early as 1513 (...). The shanks originate from pigs of the Alentego type that are reared extensively and fed on acorns and grass”. Lammefjord carrots have been cultivated for more than 50 years on the reclaimed mud flats of the Lammefjord. The Lammefjord carrot is “very smooth, extremely crunchy and has a slight tendency to turn greyish after washing”. Bayonne ham has “a delicate and lightly salty taste. Thinly sliced, it melts in the mouth”. In the meantime, the first products have been entered into the register following the ‘ordinary’ procedure.8
In addition to the ‘ordinary’ registration procedure, Regulation 2081/92 recognizes the ‘simple’ procedure of art. 17. Up to 26 January 1994, the member states could ‘inform’ the Commission which of their legally protected names or which of the names established by usage, they wished to register. The Commission would register those designations that satisfied the requirements of the Regulation. This abbreviated procedure does not allow for the option of expressing objections. However, there is a Committee of Representatives of the member states (regulation committee) involved in whether or not the Commission honours an application (art. 15). The consequences of this will be discussed below.
2. Registered names pursuant to the procedure of art. 17
In the context of the ‘simple’ procedure of art. 17 of Regulation 2081/92, protection has been requested by the various member states for a large number of names. As anticipated, the majority of the 1400 applications originate from the southern member states (France, Spain, Portugal, Italy and Greece and Germany9). The Netherlands has only submitted applications for four products: three sorts of cheese and one type of potato. This is a small number, but still more than Ireland, that has not submitted a single application.10
Processing the applications has been very time-consuming. Supplementary details had to be given for a large number of products, because of which the Commission was not able to present a draft to the Committee mentioned in art. 15, before September 1995. In spite of long deliberations, the Committee, which represents all member states could make no positive recommendations, after which a proposal had to be presented to the Council.11 Nor could the Council make any recommendations. The differences between the southern and the northern member states came to a head on the issue of whether or not to register feta cheese (see below). This situation meant that it was 12 June 1996 before a first list of roughly 320 names to which protection was granted, was adopted by the Commission.12 On 1 July 1996, a second list of approximately 60 designations was set down.13 In January 1997, the list was once again supplemented by 16 names, which also included the name of a Finnish product.14
Both lists contain a great many designations for meat and meat products including those of a number of well-known products such as ‘Veau de Limousin’, ‘Scottish beef’15, ‘Jambon d’Ardennes’ and ‘Prosciuto di Parma’. The list also contains a number of types of honey, dairy products and types of olive oil. The Regulation does not apply to wine and distilled beverages. Other EC Regulations apply to the protection of the geographical denominations of these alcoholic beverages. However, the list does include three types of English beer, cider and a large number of types (30) of German mineral water. ‘Huile essentielle de Lavande de Haut-Provence’ (lavender oil) and ‘mastic oil’ (essential oil) are the only non-foodstuffs included on the list.
‘Turrón de Alicante’ and `Turrón de Jijona'
The registration of ‘Turrón de Alicante’ and Turrón de Jijona’ as PGIs, the types of nougat on which the Court of Justice of the EC made an important decision in 1992, is also striking.16 This decision concerned the question of whether bilateral conventions (in this case a Spanish-French Convention) regarding indications of source and designations of origin are compatible with the convention rules applying to the free movement of goods (art. 30-36 EC Convention). A Spanish association of exporters of this special nougat (Exportur) opposed two French manufacturers and sellers of this nougat under its Spanish name in Perpignan, France. The Court of Justice of the EC judged that articles 30 and 36 of the EEC Convention do not obstruct the application of the stipulations of a bilateral agreement between member states concerning the protection of the indications of source and designations of origin (as in the French-Spanish agreement of 27 June 1973) provided that the protected designations have not acquired, either at the time of entry into force of that convention or subsequently thereto, a generic name in the country of origin.17
The Court of Justice of the EC classified both indications of source and designations of origin as exceptions based on ‘the protection of industrial and commercial property’ (art. 36).18 The Court of Justice understands indications of source to be designations that “attempt to inform the consumer of the fact that a product so designated originates from a particular place, region or country. A greater or lesser reputation can be attached to this geographic origin”. Apart from the geographic origin of the product, designations of origin guarantee “that the product is prepared according to prescribed quality and preparation methods set down and controlled by the government and thus possesses certain unusual qualities”. Strictly speaking, these definitions barely deviate from those set down in Regulation 2081/92. Nonetheless, some were under the impression that the Regulation was less far-reaching in the sense that indications of source were not eligible for protection.19 This impression will have been dispelled by the registration of ‘Turrón de Alicante’ and ‘Turrón de Jijona’ as Protected Geographical indications .
Types of cheeses and ‘feta’
More than 120 types of cheeses are contained on the list of protected designations. Some registrations caused a degree of upset. The Convention of Stresa, to which the Netherlands, Denmark, Italy and France are signatories, was drawn up in 1951 for the protection of cheese designations.20 Annex B of this Convention contains names of types of cheeses that may be manufactured in all countries providing they meet particular stipulations as regards composition. Cheese types referred to in Annex B, such as Danish Danablu and Italian Fontina, however, are now on the list of PDOs and PGIs. This means that Danablu, for example, may no longer be produced in any country other than Denmark. The Convention of Stresa has, as it were ‘come to a head’. In the context of the free movement of goods, the Court of Justice of the EC earlier determined that member states could not appeal to the Convention of Stresa between themselves.21
Feta cheese has also acquired PDO protection and thus in future may only be produced in Greece.22 Germany, France and Denmark in particular have protested strongly against the protection of the denomination ‘feta’.23 These countries produce feta on a large scale. Thus they argue for the recognition of feta as a generic name (see below, subpara 3). The Commission has set up an opinion poll which showed that feta is little known in the EC. For those who are familiar with the name, it does refer to the Greek origin of the product. On the basis of this opinion poll in particular, feta was registered as a protected designation of origin.24 To soften the blow for Danish manufacturers to some extent, the transition period within which non-Greek feta can continue to be produced will probably be extended to 5 years after the announcement of the registration (June 2001).25 The proposal regarding this has already been submitted to the Council by the Commission.26 The new transition regulation shall of course apply to all registered products.
3. Generic names
As already stated, generic names are not protected. More precisely, art. 3 para 1 of Commission Regulation 2081/92 stipulates that a denomination that has become a generic name cannot be registered. The Regulation understands a generic name to be “the name of an agricultural product or a foodstuff that, although it relates to the place or region where this product or foodstuff was originally produced or marketed, has become the common name of a product or foodstuff”. The question of what 'common name' should be understood to be is not answered. Pursuant to art. 3 para 3, the Council should have already drawn up an indicative list of generic names before July 1993. However, it appeared to be such a complicated matter that the Commission only succeeded in formulating a proposal in March 1996.27 In making this proposal, the Commission took account of the lists of generic names drawn up by the various member states, together with the factors mentioned in art 3 para 1 of the Regulation.
The proposal for the indicative, non-exhaustive lists ultimately covers only 6 designations : Brie, Camembert, Cheddar, Emmentaler, Edam and Gouda. All cases, by the way, concern types of cheeses contained in Annex B of the Convention of Stresa. In the meantime, the Netherlands has protested against the inclusion of Gouda and Edam in the list of generic names. For these designations, registration as PGI will be requested. Dutch producers have have changed their mind, now that other types of cheeses mentioned in Annex B of the Convention of Stresa, have been registered. Other member states have also made objections to the proposal. Countries including Germany and Denmark are pushing to have ‘feta’ registered on the list as a generic name.
It looks as though, within the foreseeable future, the Council will not succeed in drawing up a list of generic names. Because it is only an ‘indicative’ list it is not so important. The impossibility of drawing up a list with generic names illustrates however the differences of opinion that exist within the Council.
4. Relation to the TRIP’s Agreement
There is great international interest in the protection of geographical denominations. The Paris Convention (1967) contains one stipulation devoted to false indications of source (art 10). In the context of the World Trade Organisation (WTO), a world-wide protection of geographical denominations has been discussed. This has led to the inclusion of a section on the protection of geographical indications in part II of the TRIP’s Agreement (art. 22-24). All countries that are members of the WTO (including all EC member states) are bound to the TRIP’s Agreement as of 1 January 1996. In art. 22 para 1, geographical indications are defined as “indications which identify a product 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 product is essentially attributable to its geographic origin”. This definition seems similar to that contained in Regulation 2081/92, but differs on two points. Firstly, there is no requirement that the production and/or processing and/or preparation of the product must take place in a particular territory. Secondly, so-called ‘indirect’ geographical indications (such as representations of the Eiffel Tower to indicate Paris) are protected by the TRIP’s Agreement.28 Such indications are not covered by the protection of the Regulation now that this expressly refers to the name of a place, region or country. Finally, art. 22 of the TRIP’s agreement applies to all goods, and not only to agricultural products and foodstuffs as the Regulation does. The TRIPs Agreement distinguishes two protection regimes. The protection of art. 22 para 2-4 applies to all goods. The extra protection of art. 23 applies to wines and spirits.
As far as geographic designations are concerned, the members of the WTO must make provisions in legislation to enable interested parties to prevent the use “of any means in the designation or presentation of a product that indicates or suggests that the products in question originate in a geographic area other than the true place of origin in a manner which misleads the public as to the geographic origin of the products” (art. 22 para 2 subpara a) together with provisions to prevent any use “which constitutes an act of unfair competition within the meaning of article 10 bis of the Paris Convention (1967)”.
One of the principles of the TRIP’s Agreement is that it offers a minimum protection: the members can provide for a more far-reaching protection within their national legislation (art. 1 para 1, see also art. 24 para 3). Regulation 2081/92 offers such a 'further' reaching protection for designations of agricultural products and foodstuffs in the EC.
Almost 4 years have elapsed since the Regulation came into force. The PDOs and PGIs registered in this period show that a large number of designations have been given protection. Designations which, at least in the Netherlands, were considered to be generic names (Feta, Danablu) have also been registered. The area descriptions are sometimes extremely loose. A change can also be seen among Dutch manufacturers who in the first instance showed little enthusiasm for the Regulation. In 1996, a number of registration applications were submitted for some Dutch cheeses such as Edam and Gouda.
As anticipated, major bureaucratic problems have arisen. Whilst 400 requests have been processed over the last few months, more than 1000 requests are still being processed! Moreover, in the context of Regulation 2082/92 for the protection of ‘specific products’ which simultaneously came into force, no single registration has taken place.29 Within the framework of this Regulation, which offers a similar protection for so-called ‘traditional’ products, very few requests have been submitted.30 In August 1996, the first registration application was published in the Official Journal. It concerned Italian Mozzarella, a traditional soft cheese.31
To my knowledge, conflicts between PDOs and PGIs and (older or newer) trademarks have not yet been fought out in the courts. However, it is probable that we will be hearing of this kind of conflict in the future. The first list of PDOs and PGIs was only published in the summer of 1996. I can imagine that conflicts with holders of trademarks will arise over the next few years, because, for example, an existing trademark conflicts with a recently registered PDO or PGI.
The relationship with third (non EC) countries can also create problems. In Bulgaria, for instance, feta is also produced but, within a certain period of time, may no longer be imported into the EC under this name. My cautious expectation is that those active in the practice of foodstuffs law will thus be more frequently confronted with the protection of geographical indications, whether or not within the framework of the Regulation.
Regulation 2081/92 offers far-reaching protection of geographical denominations and designations of origin for specific agricultural products and foodstuffs, at community level. A register is kept by the European Commission of all protected geographical indications (PGIs) and protected designations of origin (PDOs).
In the past four years, some 400 designations have been registered according to the so-called ‘simple’ registration procedure. The first products have also been registered according to the ‘ordinary’ procedure. The registration of certain products such as Turrón d’Alicante and Feta has caused some concern. Some member states do not agree with the protection of certain designations.
Within the EC, agreement could not be reached on the question of which designations should be considered ‘generic names’ or ‘common names’ which are ineligible for protection according to art. 3 of the Regulation.
The TRIP’s agreement, realized in the context of the WTO, contains a paragraph dedicated to the protection of geographical indications. This protection is less far-reaching than Regulation 2081/92.
B.M. Vroom-Cramer is associated with the Institute for Information Law, the University of Amsterdam, the Netherlands. She is preparing a doctoral thesis on product information for foodstuffs. This article is a translation of the Dutch language article “BOB’s en BGA’s: geografische benamingen door registratie beschermd”, published in: Intellectuele Eigendom en Reclamerecht (IER), 1996/6, p. 209-212.
2 O.J. EC 1992, L 208/1.
3 Madrid Agreement of 14 April, 1891 for the repression of false or deceptive indications of source on goods; Lisbon Agreement of 3 October 1958 for the protection of appellations of origin and their international registration.
4 For recent information on Regulation 2081/92 please see: Schwab, B. “The protection of geographical indications in the European Economic Community”, in EIPR 1995, No. 5, p. 242-246; Beier, F.-K., and R. Knaak, “Der Schutz der geographischen Herkunftsangaben in der Europäischen Gemeinschaft - Die neueste Entwicklung”, in: GRUR Int. 1993, No. 8/9, p. 602-610; Beier, F.-K., and R. Knaak, “The protection of direct and indirect geographical indications of source in Germany and the European Community”, in: IIC 1994, No. 1, p. 1-38.
5 According to some critics, this legal basis is insufficient because products other than agricultural products also fall under its scope. As a consequence, this should invalidate the Regulation. See Knaak, R., “Der Schutz geographischer Herfkunftsangaben in neuen Markengesetz”, in: GRUR Int. 1995, No. 2, p. 103-112 and Tilmann, W., “Grundlage und Reichweite des Schutzes geographischer Herkunftsangaben nach der VO/EWG 2081/92", in: GRUR Int. 1993, No. 8/9, p. 610-617.
6 See, among others: Verkade, D.W.F., Ongeoorloofde mededinging, (tweede druk) Zwolle, 1986, p. 134. For definitions see also: O.W. Brouwer, (comment on Exportur case), in: CMLR 1993, vol. 30, p.1218-1219.
7 See the publication of registration applications as contained in art. 6 para 2 of Regulation 2081/92: O.J. EC 1996, C 130/7, C 130/9, C 130/10, C 157/10 and C 246/12; O.J. EC 1997, C 22/3 and C 24/18 and so on.
8 Regulation (EC) No. 2400/96 of the Committee of 17 December 1996, O.J. EC 1996, L 327/11.
9 These countries have a long tradition of protecting geographical denominations. For France, see: Debove, F., “Le régime juridique des appellations d’origine en droit français”, in: EFLR 1996/1, p. 37-56.
10 EU Bulletin, 3-96, p. 65.
11 See, among others: Written Question E-2523/95, O.J. EC 1996, C 51/20 and E/3478/95, O.J. EC 1996, C 109/4.
12 Commission Regulation (EC) No. 1107/96 of 12 June 1996 on the registration of the geographical indications and designations of origin under the procedure laid down in art. 17 Council Regulation (EEC) No. 2081/92, O.J. EC 1996, L 148/1.
13 Commission Regulation (EC) No. 1263/96 of 1 July 1996 supplementary to the Appendix to the Regulation (EC) No. 1107/96 on the registration of the geographical indications and designations of origin under the procedure of art. 17 of the Council Regulation (EEC) No. 2081/92, O.J. EC 1996, L 163/19.
14 Commission Regulation (EC) No. 123/97 of 23 January 1997 supplementary to the Appendix to the Commission Regulation (EC) No. 1107/96 on the registration of geographical indications and designations of origin under the procedure of art. 17 of Regulation (EEC) No. 2081/92, O.J. EC 1997, L 22/19.
15 See rectification to ‘Scottish beef’ in O.J. 1996, L 299/3.
16 Court of Justice of the EC, 10 November 1992, Case C-3/91 (Exportur SA versus LOR SA and Confiserie du Tech), Jur. 1992, I-5529. See comment by O.W. Brouwer in Common Market Law Review 1993, vol. 30, p. 1209-1227.
17 The decision of the Cour d’Appel de Montpellier, 25 August 1995 No. 89/3822, published in the European Food Law Review 1996, p. 92, is worth noting: the nougat designations were said to have been generic names in 1973, thus not protected. With regard to this, see written Question E-107/95 and E-364/95, O.J. EC 1995, C 196/13.
18 With this, the Court of Justice deviated from an earlier decision: C.o.J.EC 1975, Case 12/74 (Sekt/Weinbrand) Jur. 1975, 181.
19 See among others Beier, F.K., comment on Exportur case in : IIC 1994, No. 1, p. 150-154.
20 International Convention regarding the use of indications of source and designations of cheese sorts, s’Gravenhage 17 July 1951
21 C.o.J. EC 22 September 1988, Case 286/88 (Deserbais), Jur. 1988, 4907.
22 See also: Tsotsanis, M., “Problems of Feta cheese”, in EFLR 1996/3, p. 339-349.
23 EU Food Law February 1996, p.4.
24 See also the notes on the Proposal for a Council Decision to establish an indicative, non-exhaustive list of names of agricultural products and foodstuffs considered as generic names, as referred to in art. 3 para 3 of Council Regulation 2081/92, COM (96) 38 def.
25 Pursuant to art. 13 para 2 of the Regulation, the transition period was to terminate on 25 July 1997 (five years after the publication of the Regulation).
26 Proposal for a Council Regulation to amend the (EC) Regulation No. 2081/92 on the protection of geographical indications and designations of origin of agricultural products and foodstuffs, O.J. EC 1996, C 241/7. See also the recommendations of the Economic and Social Committee regarding this proposal, O.J. EC 1997, C 30/39.
27 Proposal for a Council Decision to establish an indicative, non-exhaustive list of names of agricultural products and foodstuffs considered generic names, as referred to in art. 3 para 3 of Council Regulation (EEC) No. 2081/92, COM (96) 38. def.
28 Knaak, R., “Der Schutz geographischer angaben nach dem TRIPS-abkommen”, in: GRUR Int., 1995, No. 8/9, p. 642-652.
29 Council Regulation (EEC) No. 2082/92, 14 July 1992 on the specificity certification for agricultural products and foodstuffs, O.J. EC 1992, L 208/9.
30 Written Question E-2522/92, O.J. EC 96, C 56/23.
31 Publication of a registration application as referred to in art. 8 para 1, second clause of Regulation (EEC) 2082/92 on the specificity certification for agricultural products and foodstuffs, O.J. EC 1996, C 246/9. See also registration applications for types of Belgian beer and Spanish milk: O.J. EC 1997, C 21/5.
Долината на Струма followed or not by sub-region and/or smaller geographical unit