ANNEX 12

on the protection of designations of origin and geographical indications for agricultural products and foodstuffs

Article 1

Objectives

The Parties agree to promote, between themselves, the harmonious development of designations of origin and geographical indications for agricultural products and foodstuffs (hereinafter referred to as "GIs") and to facilitate, by means of the protection of such designations and indications, bilateral trade in those agricultural products and foodstuffs which have been granted a GI under the Parties’ respective legislation.

Article 2

Legislative provisions of the Parties

1. The Parties’ legislation relating to the protection of GIs in their respective territories shall allow for a uniform procedure for protection which shall meet the Parties’ joint objectives.

2. Such legislation shall, inter alia, establish:

— an administrative procedure which makes it possible to verify that the GIs correspond to agricultural products or foodstuffs originating from a region or specific place, and that their specific quality, reputation or other characteristics may be attributed to that geographical origin;

— an obligation that the protected GIs relate to specific products, meeting a number of conditions set out in a specification and that those conditions may be modified only if the aforementioned administrative procedure is followed;

— the implementation of the protection by the Parties by means of official controls;

— the right of any producer established in the geographical area concerned and who agrees to follow the system of control, to benefit from the GI in question, provided that the products concerned comply with the specification in force;

— a procedure prior to protection, which shall allow any natural or legal person with a legitimate interest in exercising his rights by notifying his objection, particularly if he is the holder of a reputable, well-known or renowned trademark that is well-established.

Article 3

Procedures prior to protection under the Agreement

Each Party shall submit the GIs of the other Party to examination and public consultation.

Article 4

Subject-matter of protection

1. Each Party shall protect the GIs of the other Party listed in Appendix 1.

2. That Appendix may be subject to additions in accordance with the procedure referred to in Article 16.

3. The protection provided under this Annex shall not prejudice the processing of an individual request for registration in accordance with the Parties’ respective procedures.

Article 5

Scope

By way of derogation from Article 1 of this Agreement, this Annex shall apply to the GIs listed in Appendix 1, which designate products covered by the legislation of the two Parties as listed in Appendix 2.

Article 6

Eligibility for protection

1. In order to be eligible for the protection provided for under this Annex, the Parties’ GIs shall be previously protected in their respective territories and shall originate from the Parties.

2. The Parties shall not be obliged to protect a GI from the other Party that is no longer protected on the latter's territory.

Article 7

Extent of protection

1. The GIs listed in Appendix 1 may be used by any operator marketing the products in accordance with the relevant specification in force.

2. The direct or indirect commercial use of a protected GI is forbidden:

(a) with regard to a comparable product which does not comply with the specification;

(b) with regard to a non-comparable product if the use thereof exploits the reputation of the GI in question.

3. The protection in question shall apply in the case of usurpation, imitation or evocation, even if:

— the genuine origin of the product is indicated;

— the name in question is used in translation, transliteration or transcription;

— the name used is accompanied by terms such as "kind", "type", "style", "imitation", "method" or other similar expressions.

4. The GIs are also protected, inter alia, against:

— any other false or misleading indication as to the genuine origin of the product, its provenance, method of production, nature or essential qualities listed on the packaging, including the inner packaging, the advertising material or documents relating to the product;

— any use of a container or packaging liable to convey a false impression as to the origin of the product;

— any use of the shape of the product if this is distinctive;

— any other practice liable to mislead the public as to the true origin of the product.

5. The GIs listed in Appendix 1 may not become generic.

Article 8

Specific provisions for certain names

1. For a transitional period of three years from the entry into force of this Annex, the protection of the Swiss GI "Bündnerfleisch (Viande des Grisons)" listed in Appendix 1 shall not preclude the use of that name, on the territory of the Union, to designate and present certain comparable products not originating from Switzerland.

2. For a transitional period of three years from the entry into force of this Annex, the protection of the following Union GIs, listed in Appendix 1, shall not preclude the use thereof, on Swiss territory, in order to designate and present certain comparable products not originating from the Union:

(a) Salame di Varzi;

(b) Schwarzwälder Schinken.

3. For a transitional period of five years from the entry into force of this Annex, the protection of the following Swiss GIs, listed in Appendix 1, shall not preclude the use thereof, on Union territory, in order to designate and present certain comparable products not originating from Switzerland:

(a) Sbrinz;

(b) Gruyère.

4. For a transitional period of five years from the entry into force of this Annex, the protection of the following Union GIs, listed in Appendix 1, shall not preclude the use thereof, on Swiss territory, in order to designate and present certain comparable products not originating from the Union:

(a) Munster;

(b) Taleggio;

(c) Fontina;

(d) Φέτα (Feta);

(e) Chevrotin;

(f) Reblochon;

(g) Grana Padano (including the term "Grana" when used on its own).

5. The following homonymous GIs from Switzerland and from the Union, listed in Appendix 1, shall be protected and may coexist:

— "Vacherin Mont-d'Or" (Switzerland) and "Vacherin du Haut-Doubs" or "Mont d'Or" (Union).

Where appropriate, specific labelling measures shall be provided for, in order to distinguish between the products and exclude any risk of misleading information.

6. The protection of the GIs "Grana Padano" and "Parmigiano Reggiano" shall not preclude, with regard to products intended for the Swiss market, and in respect of which all measures have been taken to avoid the re-exporting of such products, the possibility of grating and packaging (including cutting into portions and inner packaging) of these products on Swiss territory for a transitional period of six years from the entry into force of this Annex and without the right to use the symbols and indications of the Union for these GIs.

7. The GI "Gruyère" on the one hand and the GIs "Γραβιέρα Κρήτης (Graviera Kritis)", "Γραβιέρα Αγράφων (Graviera Agrafon)", "Κεφαλογραβιέρα (Kefalograviera)" and "Γραβιέρα Νάξου (Graviera Naxou)", on the other hand, describe clearly different cheeses, notably due to their specific geographical origin, the method by which they are produced and their organoleptic properties. The Parties therefore undertake to take all necessary measures to avoid and, if necessary, stop any abusive use or use which may give rise to confusion between the GI "Gruyère" and the term "Γραβιέρα/Graviera", in accordance with the provisions of Articles 13 and 15.

To that end, the Parties in particular agree that the term "Γραβιέρα/Graviera" may under no circumstances be translated by "Gruyère", and vice-versa.

Article 9

Relations with trademarks

1. Without prejudice to paragraph 2 of this Article, with regard to the GIs listed in Appendix 1, the registration of a trademark corresponding to one of the situations referred to in Article 7 shall be refused or invalidated, either ex officio or at the request of an interested party, in accordance with each Party's legislation. This general obligation particularly refers to the fact that the request for a registration of a trademark corresponding to the situation provided for in Article 7(2)(a) shall be refused in accordance with each Party's legislation. Trademarks not registered in accordance with these provisions shall be invalid.

2. A trademark, the use of which corresponds to one of the situations referred to in Article 7 and which has, in good faith, been filed, registered – or established through use, if this possibility is provided for in legislation – on the territory of the Party concerned, prior to the date of the entry into force of this Annex, may, without prejudice to Article 16(3), continue to be used and renewed notwithstanding the protection provided to the GI through this Annex, provided that no grounds of nullity or expiry, under the legislation of the Parties, can be applied to the said trademark.

Article 10

Relations with international Agreements

This Annex shall apply without prejudice to the rights and obligations of the Parties in accordance with the Agreement establishing the World Trade Organisation, or any other multilateral agreement on intellectual property law to which Switzerland and the Union are contracting parties.

Article 11

Legal capacity

The right to take action in order to ensure the protection of the GIs listed in Appendix 1 shall apply to natural or legal persons who are legitimately affected, in particular federations, associations and organisations of producers, traders or consumers established, or with their registered address located, on the territory of the other Party.

Article 12

Indications and symbols

In view of the Parties’ converging legislation, as mentioned in Article 2, each Party shall authorise, within its own territory, the marketing of products which may be covered under this Annex and which may bear official indications and possible official symbols, relating to GIs, used by the other Party.

Article 13

Implementation of the Annex and implementing measures

The Parties shall implement the protection provided for in Article 7 by any appropriate administrative action or legal proceedings, as appropriate, at the request of the other Party.

Article 14

Border measures

The Parties shall take any measure necessary to enable their respective customs authorities to hold at a border those products in respect of which it has been suspected that a GI protected under this Annex has been illegally used and which are intended to be imported to the customs territory of either Party, for export from the customs territory of either Party, for re-export, for placing in a free zone or free warehouse, or to be placed under one of the following schemes: international transit, customs warehouse, inward or outward processing arrangements, or temporary admission into the customs territory of one of the Parties.

Article 15

Bilateral cooperation

1. The Parties shall provide each other with mutual assistance.

2. The Parties shall exchange, regularly or at the request of either Party, any information which may be useful to ensure the smooth running of the provisions of this Annex, particularly regarding developments in the Parties’ legislative and regulatory provisions or of their GIs (amendments of names, symbols and logos, significant amendments to a specification, cancellation, etc.).

3. The Parties shall inform each other, if either of them, as part of negotiations with a third country, proposes to protect a GI for an agricultural product or foodstuff from that third country and if that name is homonymous to a GI protected by the other Party, in order to allow the other Party to issue an opinion on the protection of the GI in question.

4. The Parties shall enter into consultation with each other if either of them considers that the other has failed to fulfil an obligation under this Annex.

5. The Committee shall examine any issue relating to the implementation of this Annex, or developments relating to its provisions. The Committee may, in particular, decide upon the amendments to be made to Article 8 and, if appropriate, decide upon the practical conditions of use that will make it possible to differentiate between homonymous GIs.

6. The ‘PDO/PGI’ working group set up under Article 6(7) of the Agreement shall assist the Committee at the latter's request.

Article 16

Review clause

1. As regards the GIs which have been recently registered by either Party, the Parties shall conduct the examination and consultation referred to in Article 3, in order to protect these products. New GIs will be included in Appendix 1 using the Committee procedures.

2. The Parties undertake to examine the cases of GIs which are not included in Appendix 1 no later than two years after the entry into force of this Annex.

3. The date referred to in Article 9(2) relates to the date when the request is sent to the other Party.

4. The Parties shall consult each other with regard to any other amendments to be made to the Annex.

5. Implementation measures not provided for in this Annex shall, where appropriate, be decided upon by the Committee.

Article 17

Transitional provisions

1. Without prejudice to Article 8, products relating to the GIs listed in Appendix 1 which, at the time of the entry into force of this Annex, had been produced, designated and presented legally, in accordance with the law or national regulations of the Parties but prohibited under this Annex, may be marketed until stocks have been exhausted, for a maximum period of two years from the entry into force of this Annex.

2. The transitional provisions referred to above shall, by analogy, apply to GIs subsequently added to Appendix 1, in accordance with the provisions of Article 16.

3. Unless otherwise specified by the Committee, products produced, prepared, described and presented in compliance with this Annex but whose production, name and presentation cease to comply therewith following an amendment to the Annex may continue to be marketed until stocks have been exhausted.