EU Commission Publishes Proposed GI Regulations for Non-Agricultural Products

Further to the earlier notified EU consultation on extending geographical indication (GI) protection to non-agricultural products, the EU has now proposed a framework to protect craft and industrial products that rely on the originality and authenticity of traditional practices from their regions.

As earlier discussed, EU-wide GI protection is currently available for agricultural products and foodstuffs, including wine and spirits, which is wider than the TRIP’s minimum of GI protection for wine and spirits. Within the EU GI protection for non-agricultural products is only available at state level in about half of the EU states. In 2020 the EU was one of the founding members of the Geneva Act of the Lisbon Agreement. The Geneva Act allows for both appellations of origin and geographical indications. The former, which are also provided for under the Stockholm Act of the Lisbon Agreement, requires that the product’s raw materials be sourced and processed in the place of origin, while the latter only requires that the given quality, reputation or other characteristic of the product is essentially attributable to its geographical origin. In either case, whether under the Stockholm Act or Geneva Act of the Lisbon Agreement, the qualifying criteria for protection is independent of whether or not the product is an agricultural product. However, in the absence of EU-wide GI protection for non-agricultural products, EU-based producers of non-agricultural products can only use the Lisbon Agreement to protect GIs that are relevantly linked with those products if they are in states that are members of the Lisbon Agreement and that allow protection for GIs for non-agricultural products.

Nonetheless, currently the origin of non-agricultural products can be protected at the EU level by way of collective trade marks – such as Swiss for watches etc or Solingen for cutlery etc. However, using a collective trade mark does not enable manufacturing associations to certify the link between quality and geographical origin according to pre-determined EU-level standards, such as occurs with EU Regulation 2012-1151 on Quality Schemes for Agricultural Products and Foodstuffs.

Once adopted, the Regulation will apply to craft and industrial products such as natural stones, jewellery, textiles, lace, cutlery, glass and porcelain. Although sharing features of EU Regulation 2012-1151 the Regulation will be separate to rather than an amendment of that Regulation. In order to benefit from GI protection, the product needs to comply with the following eligibility requirements that are focused on the geographically rooted product quality:

• Originate in a specific place, region or country;
• Have a quality, reputation or other characteristic that is essentially attributable to its geographical origin; and
• Have at least one production step taking place in the defined geographical area.

The registration procedure for applications involving GIs located within the EU will involve two levels. The initial application will be made with the competent national authority of the applicant’s member state which will examine and run a national opposition procedure. If the application passes this step, then the national authority will submit an EU level application to EUIPO who will examine and run a worldwide opposition procedure. If EU level registration is achieved, then any national level registrations within the EU will be cancelled as co-existence will not be allowed. EU level registration will also allow applications to be made for protection in non-EU countries that are members of the Geneva Act to the Lisbon Agreement and which allow GI protection for non-agricultural products. Likewise, applications for EU GI protection for non-agricultural products can be made by registrants in those non-EU countries, which will be examined by the EUIPO.

The EU also proposes to extend such GI protection into countries that are not members of the Geneva Act to the Lisbon Agreement by way of including such provisions in bi-lateral free trade agreements (FTAs). In this regard both Australia and New Zealand are in FTA negotiations with the EU, having each recently concluded an FTA with the UK. Those AU and NZ FTA agreements with the UK contain provisions to the effect that if AU and/or NZ expand the scope of their GI protection (such as on account of a concluded FTA with the EU), then their FTA with the UK in that regard can be renegotiated. Although, currently the UK’s GI protection is for agricultural products and foodstuffs, including wine and spirits.

Author: Quinn Miller

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