Europese Commissie: studie over geografische indicaties voor niet-agrarische producten

De Europese Commissie heeft recentelijk een studie gepubliceerd over geografische indicaties voor niet-agrarische producten. Tevens heeft de Commissie een public hearing gepland op maandag 22 april in Brussel, waar voor stakeholders de mogelijkheid bestaat om de Commissie te informeren over bestaande behoeften ten aanzien van dit onderwerp. Meer informatie over de public hearing hier.

Europese Commissie, Study on geographical indications protection for non-agricultural products in the internal market, final report 18 February 2013.

“The overall objective of the study was (1) to provide the European Commission with precise information on protected and potentially protected non-agricultural GI products in the 27 Member States of the EU1, Iceland, Liechtenstein, Norway and Switzerland and (2) to determine whether or not a unitary system of protection for non agricultural GI products at the EU level should be established. (...)

In the 31 countries, there is no harmonised approach when it comes to the legal instruments available for the protection of non agricultural GI products. The legal frameworks differ quite significantly in terms of scope, effect and cost of protection. Protection can be granted through consumer deception and unfair competition laws, trade mark laws, specific laws which protect individual non agricultural GI products and/ or sui generis GI systems.

Unfair competition and consumer deception laws are available to seek redress in all the countries, but they are barely used by producers. The protection granted under these laws focus mainly on the protection of consumers and requires producers or other stakeholders interested in the protection of the intellectual property (IP) rights to bring evidence, a process which can be both costly and uncertain. Passing-off actions are also possible but no recent case was found. (...)

However, not many producers have registered Community trade marks with OHIM. Trade marks offer the right holder with a positive and exclusive right on the use of the name. However, on the one hand, there is a limitation of rights conferred by a mark, notably the impossibility to prevent a third party to use the name in accordance with honest practices. On the other hand, it is extremely difficult to secure word trade mark registration and the need to rely on figurative trade marks to protect the name of non agricultural products bearing a geographical indication. As a result, protection secured through a figurative or semi-figurative mark does not allow for a reservation of the geographical name to the trade mark holder(s). Overall, a large number of producers find the system expensive notably when it comes to the enforcement of the intellectual property rights.

14 countries out of the 31 countries have sui generis legal instruments available for the protection of non agricultural GI products. Each of them has its own specificities. These instruments can be divided in three categories: regional or national regulations relating to a specific craft, specific laws relating to a product and regional or national laws available for the protection of all non agricultural GI products.

A detailed analysis of these legal instruments shows that regional or national regulations on specific craft cannot be regarded as providing GI protection. They merely deal with collective strategies to promote or protect local craft industry or specific sectors and go not much further than consumer deception laws. (...) Specific laws on products (with the exception of the Swiss watch ordinance) can also not be considered as a legal instrument which provides for IP protection. (...)

Existing regional or national laws available for the protection of non agricultural GI products in some countries differ on many aspects: definitions (appellations of origin versus geographical indication, genericity), procedures (application, opposition and registration), competent authorities and fees. These schemes provide a far reaching IP protection but their requirements are so different from one country to the other that it is not easy for producers to use them, notably for those interested in securing protection outside of their country of origin.

With regard to the legal instruments available at the international level, none of the International treaties that provide for the protection of geographical indications exclude from their scope non-agricultural products. The Paris Convention, the Lisbon and Madrid Agreements, as well as the TRIPS Agreement, clearly apply to all kind of products. These treaties include different definitions of the appellations of origin (AO) and geographical indication (GI) concepts. They also establish provisions with regard to the legal instruments that can be used for the protection of AOs and/or GIs, which are very diverse. Similarly, the scope of the protection granted to geographical indications differs significantly from one treaty to the other. The WTO TRIPs agreement provides the overall legal framework for the protection of GIs around the world; it includes derogations and limitations to GI protection, notably with regard to generic names and prior trade mark rights.

International treaties relating to trade mark protection as well as the Community trade mark system offer legal frameworks that can facilitate the protection of non agricultural GI products. However, producers interested in using them can face challenges with regard to application requirements, use and ability to enforce the right at costs that can be significant. (...)

Based on these economic findings, the interest of producers, consumers and policy-makers for a new EU framework that would improve the protection of non-agricultural GI products is likely to vary. In the countries where producers currently face competition and pressures from imitations or counterfeited products, they will probably be supportive. For other countries, where the problem is less acute, there could be more reluctance, as the establishment of such a system will generate costs (especially for public authorities if there is an obligation to implement the European regulation, but also to producers and possibly to consumers as costs could be included in the final price of the product). Some might argue that these costs could exceed the potential benefit of a new EU GI system."

Lees hier meer.