Legal protection is available for geographical terms when a valuable association has been created over time between a product and the region from which it originates, such as Parma ham or champagne. Producers or traders from the region sharing the name may apply for either UK domestic legal protection or European Community rights. In the EU, this right is called a ‘protected designation of origin’ (PDO). A PDO is a sign used on goods and stating that a given product originates in a given geographical area and possesses qualities or reputation due to that place of origin. A PDO product must originate from a particular area, be fully produced, processed and prepared in that area and have qualities and characteristics which are exclusively due to a particular geographical environment. Only groups of producers may apply for a PDO to be registered.
Some of the first PDO registrations in the UK covered White Stilton and Blue cheeses, Orkney beef, Orkney lamb and Jersey Royal potatoes. An application is currently on foot to protect the Melton Mowbray pork pie as a PDO.
The criteria for a Protected Geographical Indication (GI) are less stringent. The geographical link must arise in at least one of the stages of production, processing or preparation. GIs may be used for a variety of products, particularly agricultural products.
At the international level, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) sets out the minimum standards of protection for GIs in Arts 22–24.
Further, the registration of a trade mark under the Trade Marks Act 1994 for goods may be opposed on the ground that it contains a sign or consists of a sign which is a GI for goods originating in a country, region or locality other than that from which the relevant goods originated.
Explain both the meaning and the legal protection (if any) afforded by:
- an indication of source;
- a geographical indication of origin;
- an appellation of origin;
- a protected designation of origin;
- a protected geographical indication;
- a certificate of special character.
This is a standard subdivided short answer question. Answer each sub-question in turn, clearly identifying the separate parts of the essay (a)–(f). Assume that each subdivision carries equal marks, allocating equal time accordingly.
The core function of a trade sign such as a geographical indication, a name or a trade mark is to provide information to the consumer. With the increased mobility of goods since the Industrial Revolution and now globalisation, there is increased potential for confusion as to origin, including deliberate free-riding on the reputation of well-known geographical indications. In this field, there are many terms relating to geographical indications or GIs. The specific meanings of some of the key categories of GIs are set out below.
(A) Indication of Source
An indication of source is simply an indication of provenance or origin. There is no legal requirement that there be any correlation between the characteristics or quality of a product and the place that the product came from. Examples include French perfume, Italian wine and German cars.
(B) Geographical Indication of Origin (GI)
Article 22(1) of the Agreement on Trade Related Aspects of Intellectual Property Rights(TRIPS) defines GIs as ‘indications, which identify a good 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 good is essentially attributable to its geographical origin’.
The TRIPS Agreement requires the geographic location to imbue the product with particular traits or characteristics. This extends beyond the quality of the product to include ‘reputation or other characteristic of the good’ (note the similarity with trade mark law). TRIPS defines general standards of protection of GIs for all kinds of goods (Art 22) and additional standards for wines and spirits (Art 23).
(C) Appellation of Origin
This is a specific type of GI. According to Art 2 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958 it is the ‘geographic name of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially due to the geographical environment, including natural and human factors’. The geographic location must imbue the product with particular traits or characteristics. There must be a link between product and place. The concept of a GI encompasses appellations of origin.
(D) Protected Designation of Origin (PDO)
This is the term used to describe the designation of origin that has been registered under the 1992 EU Regulation on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs (PDO Regulation).
A designation of origin is defined as the name of a region, a specific place, or country. It is also necessary to show that: