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European protection of food names

Introduction

EU legislation provides for a system of registration of food names which denote foods made in a traditional way or made in a particular region1. There are three designations of food names:

* protected designation of origin;
* protected geographic indication;
* traditional speciality guaranteed.

These protections are not in the nature of intellectual property but are a form of guarantee of origin or quality which is (to an extent) protected by EU and national law.

Protected Designations of Origin and Protected Geographic Indications

The protection of designations of origin and of geographical indications of agricultural products and foodstuffs is obtained in accordance with EC Council Regulation 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, (OJ L208, 24.7.92, p 1).

A protected designation of origin (PDO) means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff which:

(i) originates in that region, specific place or country; and


(ii) the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area.

Certain traditional geographical names which are not the place of origin and certain non-geographical names which fulfill the conditions referred to in head (ii) above can be PDOs if they designate a product originating in a region or a specific place (e.g. 'feta' which means 'slice' in Greek but has come to mean a certain type of Greek cheese, and 'stilton' which refers to a town in which stilton cheese is not made).

A protected geographic indication (PGI) means the name of a region, a specific place or, in exceptional circumstances, a country, used to describe an agricultural product or a foodstuff which:


(a) originates in that region, specific place or country; and


(b) which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area.

In the case of both PGIs and PDOs, names that have become generic may not be registered. A name may also not be registered as a designation of origin or a geographical indication where it conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the public as to the true origin of the product.

The difference between PDOs and PGIs is slight: both relate to products which are special because of geographic associations. However, in the case of PGIs, the geographical influence need not as a matter of fact affect the quality or character of the product as a reputation stemming from the geographical origin is enough. In the case of PDOs, all the production, processing and preparation must, subject to a limited exception, take place in the geographical area concerned whereas in the case of PGIs only one of these activities need take place in the geographical area concerned.

A traditional speciality guaranteed designation (TSG) is used for products where the name does not relate to issues of geographical origin but to the traditional methods of production of the product.

Applications for registration of protected designations of origin and protected geographic indications

In the cases of a PDO and a PGI, only a group or, subject to certain conditions, a natural or legal person, is entitled to apply for registration. The application must be sent to the competent authority in the member state in which the geographical area is situated. It must contain the product specification covering matters such as raw materials, methods of production and processing and final characteristics of the product. The member state must check that the application is justified and must forward it, including the product specification and other documents on which it has based its decision, to the European Commission, if it considers that it satisfies the requirements of the European Regulation on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

Within a period of six months the Commission must verify, by means of a formal investigation, whether the registration application includes all the necessary particulars and inform the member state concerned of its findings. If the Commission concludes that the name qualifies for protection, details of the application must be published in the Official Journal of the European Communities.

Member states then have six months to consult interested parties which may result in a statement of objection from either a member state or an interested party. If there is no objection, the names must be entered in a register kept by the European Commission entitled 'Register of protected designations of origin and protected geographical indications' which contains the names of the groups and the inspection bodies concerned. The European Commission must publish these names, and any amendments made to the register, in the Official Journal. If there is an objection, the European Commission must seek to reach an agreement with member states about the application and, failing that, must take a decision as to whether to register the name or not. Applications for amendments may be made using the same procedure.

PDOs and PGIs are available to products from outside the European Community provided that they meet the requirements and that the country from which the product originates is prepared to provide equivalent protection to European products with a protected designation.

Traditional speciality guaranteed

The European Regulation on traditional speciality guaranteed designation for agricultural products and foodstuffs lays down rules under which a European Community traditional speciality guaranteed designation may be obtained for listed agricultural productswhich are intended for human consumption, and listed foodstuffs.

The European Commission may set up and administer a register of TSG products of specific character which will list the names of such agricultural products and foodstuffs of which the specific character has been recognised at European Community level. In order to appear in this register, an agricultural product or foodstuff must either be produced using traditional raw materials or be characterised by a traditional composition or a mode of production and/or processing reflecting a traditional type of production and/or processing. Registration is not permitted in the case of an agricultural product or foodstuff, the specific character of which is due to its provenance or geographical origin, or solely to application of a technological innovation.

To be registered, the name must: (1) be specific in itself; or (2) express the specific character of the agricultural product or the foodstuff. However, a name expressing specific character, as referred to in head (2) above, may not be registered if: (a) it refers only to claims of a general nature used for a set of agricultural products or foodstuffs, or to those provided for by specific European Community legislation; (b) it is misleading, such as that, in particular, which refers to an obvious characteristic of the product or does not correspond to the specification or to the consumer's expectations of the product.

Applications for registration of TSGs

In the case of a TSG, only a group is entitled to apply for registration of the specific character of an agricultural product or foodstuff. The application for registration comprising the product specificationmust be submitted to the competent authority of the member state in which the group is established. The competent authority must forward the application to the European Commission if it considers that the relevant requirements are fulfilled. The European Commission must then forward the translated application for registration to the other member states within a period of six months from the date of receipt of the application and, as soon as this has been carried out, the main points of the application must be published in the Official Journal of the European Communities. Member states must ensure that all persons who can demonstrate a legitimate economic interest are authorised to consult the application. Within five months of the date of publication, any natural or legal person legitimately concerned by the registration may object to the intended registration by sending a duly substantiated statement to the competent authorities of the member state in which that person resides or is established.

The competent authorities of the member states must adopt the necessary measures to take account of any such statement within the period laid down. If no objections are notified to the European Commission within six months, the main pointsmust be entered in the register and published in the Official Journal. If objections are notified, the European Commission must, within three months, ask the member states concerned to seek agreement between themselves in accordance with their internal procedures within a further period of three months. If agreement is reached, the member states in question must notify the European Commission of all factors that enabled that agreement to be reached and the opinions of the applicant and the objector. If no agreement is reached, the European Commission must decide on the registration in accordance with the specified procedure. Applications for amendments may be made by a shortened procedure.

TSGs are available to products from outside the European Community provided that they meet the requirements and that the country from which they originate is prepared to provide equivalent protection to European products with a protected designation.

Effect of protection of designation

A protected designation is reserved to the products to which it applies. In the cases of a PDO and a PGI, the name, the initials PDO and PGI and the phrases 'protected designation of origin' and 'protected geographical indication' (or in each case the relevant equivalents in another language) and a special European Community symbol are also reserved for use with registered products. In the case of a TSG, the name, the indication 'Traditional Speciality Guaranteed' (or the equivalent in another language) and a special European Community symbol are also reserved for use with registered products.

PGI and PDO products are protected against:


(1) any direct or indirect commercial use of a name registered in respect of products not covered by the registration in so far as those products are comparable to the products registered under that name or in so far as using the name exploits the reputation of the protected name;


(2) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as 'style', 'type', 'method', 'as produced in', 'imitation' or similar;


(3) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin; and


(4) any other practice liable to mislead the public as to the true origin of the product. Registration of a trade mark which would result in such a situation will be refused.

What's new item:

22/02/2011: Cornish pasties win protected status
The Cornish Pasty Association (CPA) is celebrating after receiving Protected Geographical Indication (PGI) status for its world famous pasty. The decision from the European Commission means that from now only Cornish pasties made in Cornwall and following the traditional recipe can be called ‘Cornish pasties’.

Enforcement

Civil enforcement


It appears that the EU Regulation does entitle a private individual, entity or group with a sufficient interest or standing to prevent marketing of a product by a name which infringes a PDO/PGI registration:

Consorzio del Prosciutto di  Parma Salumificio S. Rita SpA v Asda Stores  Ltd and Hygrade Foods Ltd; [2003] EUECJ C-108/01


In this case, Parma ham (protected by a PDO) was lawfuly sourced and sold by Asda in the UK. However, the ham was sliced in the UK, not in the Parma region of Italy as required by the PDO specification. Although the Parma ham sold by Asda was genuine, the association of Parma ham producers brought an action in the English courts to prevent the sale by Asad, because the ham had not been sliced in Parma. Asda argued that the requirement for slicing in the region of production had not appeared in the official EU publication of the Parma ham PDO, and was therefore not binding upon it.

The case reached the House of Lords whichin essence referred the question raised by Asda to the Court of Justice of the EU (CJEU) for interpretation.The CJEU held that the PDO regulation was, in accordance with the second paragraph of Article 249 EC, a regulation, which is a measure of general application, is binding in its entirety and directly applicable in all Member States. As such, it created not only rights but also obligations for individuals, on which they may rely against other individuals before national courts.

However, in this cae, the CJEU also ruled that the PDO condition that the product must be sliced and packaged in the region of production could not be relied on against economic operators, as it was not brought to their attention by adequate publicity in Community legislation.

Legaleze comment:The remedy of passing off may not be appropriate in this type of case.
However, the Regulation requires Member states to take the necessary measures to ensure that name protected products are protected against misuse or misleading use of the name, indication or symbol. Legaleze therefore considers that a civil remedy ought to be available by way of an injunction. Further, we think that enforcement authorities (i.e. the OFT and local trading standards departments) might take action in appropriate cases under the Consumer Protection from Unfair Trading Regulations 2008

[Note: Legaleze amended the above case report on 03/02/2015]

Criminal enforcement


There are no criminal sanctions in the UK for infringement of protected designations.

However, if it is correct that the Consumer Protection from Unfair Trading Regulations 2008 could apply (see above under Civil enforcement), breach of these regulations is an offence punishable by a fine or up to two years imprisonment.

In the case of an offence committed by a corporate body, there is Director’s criminal liability. There is a due diligence defence for an offence if the accused proves that the commission of the offence was due to a mistake or cause beyond his control and that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

Further information

The DOOR dabatabase is searchable for applications for name protected status which have been filed, published or registered.
The EU Commission site has pages dealing with Geographical indications and traditional specialities and the application process.

[Page updated: 03/02/2015]

 

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