In general the protection of intellectual property rights over products related to or originating in a defined geographical area is based on the legal concept of a “geographical indication.” According to both legal theory and practice a geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation related to that origin.
In order to function as a GI, the sign must identify the product (an agricultural product or a foodstuff for the purposes of this article) as originating in a given place or at least that the qualities, characteristics, or reputation of the product are essentially due to the place of its origin. GIs were established to enable those who have the right to use the indication for their products to prevent its use by third parties whose products do not conform to the standards. For example, producers who have the right to use the protected sign “Gornooryahovski Sudzhuk” can exclude the use of that sign for any raw dried sausage not produced according to their standards and thus prevent the misuse of the indication by those who want to unlawfully benefit from the reputation of this traditional Bulgarian sausage.
On the territory of the EU three types of quality schemes for the protection of quality agricultural products and foodstuffs were introduced by Regulation (EU) No. 1151/2012 of the European Parliament and of the Council of November 21, 2012 on quality schemes for agricultural products and foodstuffs: The protected geographical indications (PGI), the protected designation of origin (PDO), and the traditional specialties guaranteed (TSG). While these quality schemes vary in the degree of requirements needed for qualifying for protection (the requirements for obtaining a PGI being less strict than those for obtaining a PDO), the purpose of their protection remains virtually identical: to benefit rural economies by giving markets the tools to identify and promote quality products which have specific characteristics due to their place of origin, to protect producers against unfair practices, and to benefit the consumers by providing clear information on these products. A characteristic of this protective framework is that geographical indications and designations of origin can only be protected at the European Union level to ensure uniform and thus more effective protection of intellectual property rights obtained with regards to agricultural products and foodstuffs.
Over the years a wide variety of practical issues have arisen with regards to the schemes for protection of agricultural products and foodstuffs. The main topics of ECJ case law with regards to Regulation 1151/2012 (and its predecessors – Regulation 506/2006 and Regulation 509/2006) has focused on the issues of labeling of quality products (Case C-446/07, Alberto Severi), comparing the requirements for PGIs and PDOs and their registration (Case C-120/08, Bavaria NV), and on the scope of the framework of quality schemes for protection for agricultural products and foodstuffs established at EU level (Case C-478/07, Budejovicky Budvar). In these cases the ECJ has found that the EU system for protection is uniform and exhaustive and does not allow Member States to apply other schemes on a national or a regional level – thus national systems can only exist for the purpose of regulating the first stage of the process of submitting an application for registration. The inconsistent case law of the national courts, the number of requests for preliminary rulings pending for review before the ECJ, and the insufficient number of academic articles in this area however only demonstrate the lack of popularity of this highly significant topic, especially among the newer Member States of the Union.
Regardless of the different types of practical issues Member States encounter in the process of applying the Community regulations in the area of intellectual property rights related to agricultural products and foodstuffs, the EU framework for protection comprehensively organizes three types of quality schemes: protected designations of origin, protected geographical indications, and traditional specialties guaranteed. While the main purpose of the quality schemes framework established under Regulation 1151/2012 at Union level is to benefit the rural economy by giving producers the proper tools to promote their quality products and prevent third parties from unlawfully profiting from their reputation, it should be born in mind that the added value of the different types of quality schemes for protection is – as always – based on consumer trust.
By Yoanna Ivanova, Head of Intellectual Property Department, Gugushev & Partners Law Offices
This Article was originally published in Issue 4.5 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.