reike df2004

Slide1: 

Attorney-at-law Joerg W. Rieke (J.D.) German Dairy Association (MIV), Bonn/Germany Geographic Indicators – A fight to keep traditional product names 2004 Dairy Forum January 18 –21, 2004 • Boca Raton, Florida

Table of Contents: 

Table of Contents 1. Introduction 2. Protection of Geographical Indications in Europe 2.1 National developments (Germany/France) 2.2 Multilateral Agreements (Stresa Convention) 2.3 Bilateral Agreements on indications of source 2.4 Regulation (EEC) No. 2081/92 2.4.1 Preamble/Scope/Definitions PDO/PGI 2.4.2 Protection granted 2.4.3 Generic names 2.4.4 Protected designations and trademarks 2.4.5 Relation Regulation (EEC) No. 2081/92 – bilateral agreements 2.4.6 EU – Case Law (ECJ Rulings)

Table of Contents: 

Table of Contents 2.5 Relation to other Non EU-Countries (e.g. Switzerland) 3. Concluding Remarks 3.1 Evaluation Reg. (EEC) No. 2081/92 3.2 WTO (TRIPS/Dispute Settlement Panel) 3.3 Codex Alimentarius

National developments (Germany): 

National developments (Germany) German Unfair Competition Act (UWG) Art. 3 of the German Unfair Competition Act prohibits any person, in the cause of business activity, for the purposes of competition, making deceptive statements concerning the origin of goods. Conversion geographical indication into generic name possible, generic name into geographical indication possible; no national registration system; primary concern is the elimination of deceptive practices rather than the granting of private proprietary rights.

National developments (France): 

National developments (France) the most comprehensive system for the protection of geographical indications (since 1919); distinction between „appellation of origin“ (appellation d‘origine) and „indication of source“ (indication de provenance).

National developments (France): 

National developments (France) Appellation of origin Conditions a nexus must be shown between the region of origin and the characteristics of the product; the name of the product must be recognized through a judgement of a court or an administrative act; registration by a government agency (Institut Nationale des Appellations d‘Origine).

National developments (France): 

National developments (France) Appellation of origin Objective Granting an exclusive right for the producers in the registered area to prevent others from using that appellation of origin. Conversion into a generic name impossible

National developments (France): 

National developments (France) Indication of source any indication of a regional provenance; no nexus between the region of origin and the characteristics of the product necessary; protection through Unfair Competition Law; conversion into a generic name possible e.g. Camembert (Orleans, January 20, 1926).

Multilateral Agreements: 

Multilateral Agreements Stresa Convention for the Use of Appellations of Origin and Denominations of Cheeses, 1951 appellations of origin are listed in Annex A. (protection of the origin); denominations of cheeses are specified in Annex B (protection of characteristics);

Multilateral Agreements: 

Multilateral Agreements Stresa Convention for the Use of Appellations of Origin and Denominations of Cheeses, 1951 denominations of cheeses enlisted in Annex B shall not be transferred to Annex A; they may be used by the other Contracting Parties for cheeses having the characteristics defined in Annex B, provided that the denomination is accompanied by the indication of the manufacturing country.

Multilateral Agreements: 

Multilateral Agreements Stresa Convention for the Use of Appellations of Origin and Denominations of Cheeses, 1951

Bilateral Agreements on indications of source: 

Bilateral Agreements on indications of source European countries concluded bilateral agreements in the 60s/70s as reaction to the narrow regime of International Agreements (Paris, Madrid, Lisbon) intention: to establish a protection system for all geographic indications; neutral, list-based protection system; any geographical indication of source can be included in the lists.

Bilateral Agreements on indications of source: 

Bilateral Agreements on indications of source Principle: The legal situation in the country of origin is obligatory in the other member state (country of protection), i. e. the protection of the designations in the lists depends on the law of the country of origin and not on the law of the country of protection. Example: Franco-German Agreement on the protection of indications of source, appellations of origin and other geographical denominations (March 8, 1960). This Agreement contains a list of german geographic indications that are protected in France on the basis of german law and a list of french geograhic indications that are protected in Germany on the basis of french law.

Bilateral Agreements on indications of source: 

Bilateral Agreements on indications of source Germany – France (March 8, 1960) (Gruyère*, Comté, Roquefort, Reblochon ...) * not Gruyère with indication of the country of production Germany – Italy (July 23, 1963) (Parmigiano Reggiano, Grana Padano, Grana, Gorgonzola, Fontina, Asiago, Caciocavallo, Provolone, Mozzarella, Pecorino, Pecorino Romano ...) Germany – Greece (April 16, 1964) (no cheeses)

Regulation (EEC) No. 2081/92: 

Regulation (EEC) No. 2081/92 Preamble the promotion of products having certain characteristics could be of considerable benefit to the rural economy, in particular to less-favoured areas to improve the incomes of farmers to protect product names from misuse and imitation to ensure fair competition between the producers of products bearing such indications

Regulation (EEC) No. 2081/92: 

Regulation (EEC) No. 2081/92 Scope The scope of this regulation is limited to certain agricultural products and foodstuffs for which a link between product or foodstuff characteristics and geographical origin exists.

Regulation (EEC) No. 2081/92 Definitions: 

Regulation (EEC) No. 2081/92 Definitions Protected Designation of Origin (PDO) A PDO covers the term used to describe foodstuffs which are produced, processed and prepared in a given geographical area using recognised know how. Protected Geographical Indication (PGI) In this case, the geographical link must occur in at least one of the stages of production, processing or preparation. Furthermore, the product can benefit from a good reputation.

Regulation (EEC) No. 2081/92: 

Regulation (EEC) No. 2081/92 Protection granted According to Art. 13 of the Regulation, community-wide protection applies against any misuse or false or misleading indication. Protected names may not become generic (Art. 13 par. 3).

Regulation (EEC) No. 2081/92: 

Regulation (EEC) No. 2081/92 Generic names (Art. 3) Generic names may not be registered. Generic name means the name of an agricultural product or foodstuff which, although it relates to the place or the region where this product or foodstuff was originally produced or marketed, has become the common name of an agricultural product or a foodstuff. The Council, acting by a qualified majority on a proposal from the Commission shall draw up and publish a non-exhaustive, indicative list of generic names before the entry into force of this regulation (July 24, 1993).

Regulation (EEC) No. 2081/92: 

Regulation (EEC) No. 2081/92 Protected designations and trade marks (Art. 14) Protected designations take precedence over trade marks whose priority dates are later. Prior trade marks with a reputation or renown have priority over geographical designations. In the other cases, where prior trade marks meet protected designations, there exists coexistence.

Relation Regulation (EEC) No. 2081/92 – bilateral agreements on indications of source: 

Relation Regulation (EEC) No. 2081/92 – bilateral agreements on indications of source European Court of Justice (ECJ), Judgement November 10, 1992 (C-3/91) „Turrón“ The principles of the free movement of goods pursuant to Artt. 30, 36 EC Treaty do not affect bilateral agreements on indications of source. The extension of the protection of geographical indications from the country of origin to the country of protection in accordance with bilateral agreements is justified pursuant to Art. 36 EC Treaty if and as long as the geographical indication has not become a generic name in the country of origin.

EU-Case Law (ECJ Rulings): 

EU-Case Law (ECJ Rulings)

Relation to Non-EU-Countries (e.g. Switzerland): 

Relation to Non-EU-Countries (e.g. Switzerland) Swiss Regulation PDO/PGI (May 28, 1997) PDO-cheese in Switzerland: Gruyère (Codexstandard C-10; revocation 1997) Application for PDO: Emmental (April 5, 2002)

Concluding Remarks: 

Concluding Remarks Evaluation Reg. (EEC) No. 2081/92 political compromise (Reg. (EEC) No. 2081/92 was an essential part of the reform of the Common Agricultural Policy); north-south conflict inside EU; decisions have enormous economic effects; protection rests at the end solely in the hands of the EU Commission; delimitation PDO/PGI – generic name not really solved; a list of generic names will never be published (Art. 3 par.3); Art. 12 discriminatory (?).

WTO-TRIPS-AgreementEU-proposals in Cancun: 

WTO-TRIPS-Agreement EU-proposals in Cancun to establish a register of GIs that would give protection to products across international boundaries to extend protections that are enjoyed by wines/spirits to foodstuffs to allow EU member countries to retrieve GIs currently being used by other countries

The European Union‘s „Wish List“ of Geographical Indications (WTO Cancun): 

The European Union‘s „Wish List“ of Geographical Indications (WTO Cancun) Asiago Comté Feta Fontina Gorgonzola Grana Padano Manchego Mozzarella di Bufala Campagna Parmigiano Reggiano * Roquefort Pecorino Romano Reblochon * also translation Parmesan

Slide27: 

Effects on U.S. cheeses

Slide28: 

Other protected cheeses in EU: Muenster, Neufchatel, Caciocavallo Siciliano, Gruyère (?) Not protected in EU: Cheddar, Edam, Gouda, Limburger, Mozzarella, Provolone, Emmental, Samsoe, Brie, Camembert, Havarti, Butterkäse Effects on U.S. cheeses

WTO-Dispute Settlement Panel: 

WTO-Dispute Settlement Panel October 2, 2003: WTO Dispute Settlement Body agreed to look into Regulation (EEC) No. 2081/92 at the request of the United States of America and Australia (e.g. Art. 12 is discriminatory, because it imposes more stringent conditions on foreign GIs seeking protection within the EU than is required for EU GIs.)

Codex Alimentarius: 

Codex Alimentarius German Application in 1996: Codexstandard „Parmesan“ decision postponed (1998, 2000, 2002) Jan. 15, 2004: Italian request to redraft Codexstandard C-35 (extra-hard grating cheese)! decision expected in April 2004 (next CCMMP-meeting in Auckland, New Zealand)

Appeal for possible compromise: 

Appeal for possible compromise „We have no difficulty with protecting legitimate local names for cheeses such as Roquefort or Gorgonzola. But at the same time we must also recognize that some names – such as Feta, Parmesan, Emmental and Cheddar – have long been recognized as generic products by consumers around the world. The right to continue to produce and market those cheeses must be equally protected.“ Craig Norgate, CEO Fonterra (Cheese Reporter Sept. 27, 2002)