At last the Commission has published its proposal for the revision of the EU legal framework on geographical indications. For the very first time, the Commission intends to merge the basic rules on GIs in a single regulation. This is a major evolution which will certainly benefit the accessibility and understanding of EU law for all stakeholders. Common rules will apply to GIs in the fields of wine, spirit drinks and agricultural products. However, each of these categories will maintain its specificities on many aspects, through specific regulations. Surprisingly, the future scheme of geographical indications for non-agri GIs is left out of this common approach.
On the substance, the proposal of the Commission acknowledges that overall the system has proved successful and solely requires some improvements or updates.
These modifications include an express recognition of the exclusive and unitary characters of the GI system in the EU, a common definition of “geographical indications”, which includes all the designations of origin and geographical indications of the current schemes.
The protection of GIs is slightly modified, the practical impact should not be significant: the Commission maintains the structure of cascade with four layers of protection. The first layer, which prevents the direct use of a GI, is modified substantially with a much wider protection against the exploitation, weakening, dilution or detriment to the reputation of GIs. The second layer of protection, which includes the concept of “evocation” which is the backbone of GI protection today, is left unaltered. However and quite unexpectedly, the Commission has introduced a definition of this concept which introduces – at least partially – the case law of the Court of Justice. Reference is made to a “direct and clear” link (the Court of Justice had introduced the notion of “clear and univocal link”), and also to the harm caused to the reputation of the earlier GI. This duality of references to the reputation of GIs raises questions, this point will have to be analyzed thoroughly. The Commission proposes additionally to prevent the cybersquatting of domain names, and requires that member States introduce alternative dispute mechanisms that would allow the transfer of domain names registered or used in bad faith to the detriment of a GI. Also new are the proposals of the Commission regarding the protection of GIs within e-commerce or for goods-in-transit.
Another important innovation is the attempt of the Commission to clarify the situation of GIs when used as ingredients in prepared foodstuff. The Commission wishes to make it clear that GIs can be mentioned as ingredients in accordance with fair and honest practices, but not directly as the food name. The exact scope of the concept of “food name” will probably require interpretations by the courts.
The relationship with trade marks is reviewed insofar the Commission foresees the refusal or cancellation of trade marks the “use” of which would be prohibited in accordance with the protection granted to GIs. This is a huge modification of the current landscape, which will also have to be reviewed in detail. By expanding fully the scope of refusal ex officio, on absolute grounds, the Commission interferes with the traditional division between absolute grounds and relative grounds for the enforcement of GIs.
Also, the Commission wants to solve the difficult issue of the protection of GIs as trade marks: its proposal contains a provision whereby the registration of GIs as certification marks or collective marks should be permitted, with a logo. Again this provision is interesting but will to be reviewed with care.
The Commission wishes to grant more power and responsibilities to two stakeholders: the producer groups on the one side, and the EUIPO on the other side. Regarding the EUIPO, which involvement has raised concerns among lobbies, the Commission wishes to involve it in particular in the examination of applications originating in third countries.
Finally, the proposal of the Commission maintains the scheme of Traditional Specialties Guaranteed (STG). While this scheme of protection of traditional recipes has not met any success, the Commission wishes to modernize it, to simplify its definition, in the hope of convincing the stakeholders to make use of it. That will not be an easy task.
To conclude, an interesting proposal by the Commission, which for the first time envisages a common approach to the existing EU GIs. In parallel, the Commission has also released a few days ago its proposal for the new scheme of geographical indications for non-agri products. As mentioned above this initiative is not integrated to the current ones, but it is drafted in a consistent manner.
A lot of food for thoughts!