Forward to the Past – EU Consults on GI Protection for Non-Agricultural Products
The European Commission has opened a public consultation on whether to create EU-wide harmonised protection for indications of geographical origin in relation to non-agricultural products.
Currently the EU has harmonised geographical indication (GI) protection for agricultural products, but protection for indications of geographical origin for non-agricultural products is only available at state level in about half of the EU states.
At a general level a geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. While there are numerous non-EU countries that allow GIs to be registered for agricultural products in general, most countries, including Australia and New Zealand, limit the registration of GIs only to wines and spirits, being the minimum requirement under Article 23 of the TRIPs Agreement. This has been a point of contention when those countries enter into Free Trade Agreement negotiations with the EU. For non-agricultural products most countries have provided protection against false indication of source in line with Article 10 of the Paris Convention and more recently Article 22 of the TRIPs Agreement.
In November 2019 the EU deposited its instrument of accession to the Geneva Act (2015) of the Lisbon Agreement. Being the fifth such eligible depositing country / region, the EU’s deposit allowed the Geneva Act to enter into force in February 2020. From 30th June 2021 the Lisbon Agreement will have 8 member states for the Geneva Act and 27 member states for the Stockholm Act.
The Geneva Act is promoted as being more flexible than the Stockholm Act. The Stockholm Act applies only to appellations of origin, which are a particularly strong form of geographical indication as they require that the raw materials be sourced in the place of origin and that the processing of the product also take place there. The Geneva Act allows for both appellations of origin and geographical indications, with the latter only requiring that the given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. Both Acts allow protection to be obtained in all member states from a single application.
Whether under the Stockholm Act or the Geneva Act, the Lisbon Agreement allows the qualities or characteristics of a product to be due to human factors, but only for appellations of origin, meaning that the qualities or characteristics of a product need to be exclusively or essentially due to those human factors. However, EU-based producers of non-agricultural products cannot use the Lisbon Agreement to protect indications of geographical origin that are relevantly linked with those products unless they are in states that are members of the Lisbon Agreement and allow protection for indications of geographical origin for non-agricultural products.
Some EU and non-EU countries already allow for the registration of indications of geographical origin for non-agricultural products on the basis that the products have specific qualities due to human factors found in the product’s place of origin. For instance, specific manufacturing skills and traditions as in the case of Swiss watches or handicrafts made using local natural resources. However, currently they cannot register those indications of geographical origin for non-agricultural products within the EU geographical indications system. They can certify the origin of their non-agricultural products using a collective trade mark, as such marks are exempted from the absolute ground that prohibits signs consisting exclusively of a geographical name from being a trade mark. However, using a collective trade mark does not enable producers of industrial and handicraft products 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.
Several grounds of objection to the extension of protection for indications of geographical origin to non-agricultural products have been asserted. Incentivising traditional production patterns is alleged to reduce innovation and competition and limit the benefits available from global supply chains. It is also argued that it is more difficult to justify the connection between quality and origin for non-agricultural products as it depends more upon human know-how than natural factors. Where that know-how is public the rationale of allowing consumers to distinguish between authentic and non-authentic products would be harder to justify.
The consultation is directed mainly towards people, businesses and institutions within the EU. However, arguably it is also relevant to countries like Australia and New Zealand who are currently negotiating Free Trade Agreements with the EU. If the EU does extend protection for indications of geographical origin to non-agricultural products, then there might be pressure for countries to recognise and allow for those rights if they want to have a Free Trade Agreement with the EU. While both Australia and New Zealand have legislation giving protection to geographical indications for wines and spirits, neither is a contracting party to any version of the Lisbon Agreement. Rather, both countries legislation is more geared to being compliant with the relevant Paris Convention, TRIPs Agreement and CPTPP provisions as well as particular bilateral agreements.
Author: Quinn Miller