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# 52014DC0469

**GREEN PAPER Making the most out of Europe's traditional know-how: a possible extension of geographical indication protection of the European Union to non-agricultural products Text with EEA relevance /\* COM/2014/0469 final \*/**

  

GREEN PAPER

Making
the most out of Europe's traditional know-how: a possible extension of
geographical indication protection of the European Union to non-agricultural
products

Table of Content

Introduction. 4

I —
Making the most out of GIs: potential benefits from extending EU GI protection
to non-agricultural products  6

1.
GIs in the EU: current state of play. 6

1.1
What is a GI?. 6

1.2
The legal framework for GI protection. 6

1.2.1
International legal framework. 6

1.2.2
The legal framework in the EU.. 7

1.2.2.1 Unitary protection at EU
level limited to agricultural and food products. 7

1.2.2.2
Differing national legal frameworks for non-agricultural products. 8

2.
Potential economic, social and cultural benefits of extending GI protection to
non-agricultural products at EU level 8

2.1
The economic potential of non-agricultural GIs. 8

2.2
Consumer benefits. 9

2.3
Supporting EU’s international efforts to enhance the protection of GIs. 10

2.4
Preserving and valuing European traditions, know-how, the diversity of cultural
expression and cultural heritage  10

3.
Issues and challenges in making non-agricultural products potentially eligible
for GI protection  11

4.
Alternatives to EU harmonised protection. 12

II — Options
for GI protection at EU level 13

1.
Objectives and criteria for protection. 14

1.1
What label: names and symbols. 14

1.2
Which indications should be excluded from GI protection?. 14

2. To
what should GI protection be applied: a cross-cutting vs a sectoral approach?. 15

3.
The link between product and territory. 16

3.1
How strong should the link with the territory be?. 16

3.2
Quality and product specification. 17

3.3
Reputation attached to the product 18

4.
How to enhance protection. 18

4.1
Harmonising national laws. 18

4.2
Creating a single EU-wide system.. 19

5.
Registration. 19

5.1
Role for national administrations in an EU registration system.. 20

5.2
Administering an EU register 20

5.3
Content of the process. 20

5.3.1
Applicants. 20

5.3.2
Objecting to the registration of a GI. 21

5.3.3
Fees. 21

6.
Scope of protection. 22

6.1
Level of protection granted. 22

6.2
Monitoring and enforcing GI rights. 22

6.3
Duration of non-agricultural GI protection. 23

7.
After registration. 23

7.1
Cancellation of the protection. 23

7.2
Potential conflicts between GIs and trade marks. 24

Conclusion. 25

Introduction

In
today’s globalised world, the range of products offered to the consumer is
almost unlimited. To make an informed choice, consumers need to gather and
compare information on the price and characteristics of an increasing number of
goods. Price and basic features of a product may not be the sole deciding
factors. Consumers also look for ways to identify authentic, original quality
products, and expect that the quality and specific features advertised provide
the qualities that they value, for which they are often willing to pay a
premium.

To achieve this,
the reputation and/or given quality features associated with products due to
their particular origin may be crystallised in what is termed a ‘geographical
indication’ characterising the product. Geographical indications (GIs) are
indications that identify goods as originating in a country,  region or
locality where a particular quality, reputation or other characteristic of the
product is essentially attributable to its geographical origin, for example
Bordeaux (wine), Vetro di Murano (glass) or Prosciutto di Parma.

GIs
are self-evidently relevant to agricultural products, foodstuff, wines and
other alcoholic beverages, where their geographical origin is linked with
qualities stemming either directly from the soil or climate (e.g. wines) or
from a combination of natural factors and traditional processing methods
applied in the region (e.g. Bayerisches Bier). However, the use of GIs is not
limited to agricultural products. A GI may also highlight specific qualities of
a product that are due to human factors found in the product’s place of origin,
such as specific manufacturing skills and traditions. This is the case, for
instance, for handicrafts, which are generally handmade using local natural
resources and usually embedded in the traditions of local communities.

The
European Union (EU) is rich in such authentic, non-agricultural products, based
on traditional knowledge and production methods, which are often rooted in the
cultural and social heritage of a particular geographical location, e. g. Český
křišťál (Bohemian
crystal), Scottish tartans, Marmo di Carrara (marble) or Meissner Porzellan (porcelain).
All these products form part of Europe’s traditional knowledge and skills, and
so are important to its cultural heritage and contribute to the cultural and
creative economy. They also have a considerable economic potential, given the
right conditions of their exploitation are met. Innovation and technological
progress are instrumental in making the best out of local expertise and
heritage.

The EU is bound
by rules on protecting GIs under the agreement on trade related aspects of
intellectual property rights (TRIPS), which applies to all 159 members of the
World Trade Organisation (WTO), and covers both agricultural and
non-agricultural products. In all WTO
member countries, GIs have to be protected to avoid misleading the public as to
the origin of goods and to prevent unfair competition. WTO members are allowed
to use different legal instruments to achieve this. Some WTO members, including
15 EU Member States, have sui generis legislation on GI protection for
non-agricultural products.

At EU
level, unitary
GI protection is currently provided for wines, spirit drinks, aromatised wines
and for agricultural products and foodstuffs. There is
currently no harmonisation or unitary GI protection in place for
non-agricultural products at EU level. Instead, national legal instruments
apply, resulting in varying levels of legal protection across Europe.
Non-agricultural producers who wish to protect a GI throughout the EU need to
ensure that they have separate protection in each Member State, which does not
seem to be in line with the objectives of the internal market.

The
Commission identified the issue in its 2011 Communication a single market
for intellectual property rights[1]  and
proposed a thorough analysis of the existing legal framework for GI protection
of non-agricultural products in the Member States, and its implications for the
internal market.

The
study on geographical indications protection for non-agricultural products
in the Internal Market (‘the Study’) was commissioned to follow up on this
in 2012[2].
The Study, published by the Commission in March 2013, takes the view that existing
legal instruments available for producers at national and at European level are
insufficient. The Commission organised a public hearing on 22 April 2013 to
discuss the results of the Study and provide a platform for a wide debate on
the need for more efficient GI protection of non-agricultural products at EU
level. Many of the stakeholders taking part supported the study’s call for
better GI protection of non-agricultural products at EU level.

In
light of the results of the Study and the outcome of the public hearing, the
Commission decided to pursue its analytical work through this Green Paper. It
aims to consult with all stakeholders in the broadest possible manner on
whether there is a need, in the EU, to increase GI protection for
non-agricultural products, and if so what approach should be taken. All
interested parties are invited to comment on the issues raised in this Green
Paper, by responding to the specific questions listed. The Commission will take
the results of this consultation into account when deciding whether further
action is appropriate at EU level.

I —
Making the most out of GIs: potential benefits from extending EU GI protection
to non-agricultural products

1.
GIs in the EU: current state of play

1.1 What is a GI?

A GI
is a sign, usually a name, used on goods that have a specific geographical
origin and possess qualities, characteristics or a reputation essentially
attributable to that place of origin. Typically, a geographical indication
includes or consists of the name of the place of origin of the goods. This name
can be collectively used by all enterprises from the given area which
manufacture a given product in a prescribed way. Champagne and Prosciutto
di Parma are examples of some world-famous GIs.

The
purpose of protecting a GI as an intellectual property right is to ensure fair
competition for producers and to provide the consumer with reliable information
on the place and /or method of production and the quality of the product.[3] The
protection GIs give is instrumental in preserving traditional and high-quality
products and the know-how and jobs relating to them. Protecting GIs therefore
supports small and medium-sized businesses and manufacturers (SMEs). GIs
emphasise the relationship between human activity, culture, land and resources,
and help to protect intangible assets such as reputation and quality standards.

GI protection is
also an incentive for investing in new technologies and innovation to protect
the high quality of the products while maintaining competitiveness.

GIs
have special features that distinguish them from other intellectual property
rights: they are generally not the property of one single entity, as is usually
the case for trade marks or patents. GIs belong to a whole community, that is,
to all producers whose products originate in the defined geographical area and
comply with the specifications set out for the GI.

1.2 The legal
framework for GI protection

1.2.1
International legal framework

A
number of treaties administered by the World International Property
Organisation (WIPO) provide for the protection of GIs, most notably the 1883
Paris Convention for the Protection of Industrial Property,[4] and
the Lisbon Agreement for the Protection of Appellations of Origin and Their
International Registration.[5] In
addition, Articles 22 to 24 of the TRIPS agreement deal with the international
protection of geographical indications within the WTO.[6]

These
international agreements allow for GI protection to be granted to all product
types, both agricultural and non-agricultural. They differ significantly,
however, as to the definition, scope, related enforcement measures and other
aspects of GI protection.

1.2.2 The legal
framework in the EU

In Europe, GI protection is available for both agricultural and non-agricultural products.
Agricultural products and foodstuffs (wines, spirits) can enjoy unitary
protection granted exclusively at EU level. Non-agricultural GIs are protected
only at national/regional level, through various national legal frameworks.

1.2.2.1 Unitary protection at EU level limited
to agricultural and food products

At EU
level, unitary GI protection has been established for wines (1970), spirits
(1989), aromatised wines (1991) and other agricultural products and foodstuffs
(1992). The main objective of these systems is to promote quality, variety and
value in the food chain, preserve traditional know-how in the sector and
stimulate diversification and employment in rural areas. Through these systems,
protected names for the products covered enjoy far-reaching unitary protection
throughout the EU, with just one application process. At the end of April 2014,
336 names of spirits, 1577 names of wines and 1184 names of foodstuff and
agricultural products were registered at EU level. The estimated sales value
for EU GIs in 2010 amounted to EUR 54.3 billion, including EUR 11.5 billion of
export sales (15 % of EU food and drink industry export).

The Court of Justice of the European Union
has confirmed that a GI constitutes an intellectual property right.[7]
The EU system for protecting them is exclusive and prevents Member States from
running separate, parallel national or regional schemes (as in case with trade
marks, for example).[8]
National systems exist to regulate the first step of the application process
for EU GI registration and to ensure their administrative enforcement (i.e.
making official checks on compliance with the product specifications set by
producers, and monitoring use of a GI in the market).[9]

The
EU system of GI protection for agricultural products is generally considered a
success story, as illustrated by a recent study commissioned by the European
Commission.[10]
It has brought tangible benefits for consumers and producers, such as detailed
information and a quality guarantee for consumers, more stable profit margins
for producers, improved visibility, often resulting from participation in trade
fairs, access to new domestic and/or export markets, better access to promotion
funds and investment aid for producers. GI protection also helps maintain local
infrastructure and employment, especially in poorer areas, thus benefiting
society as a whole.

1.2.2.2 Differing national legal frameworks for
non-agricultural products

Member
States’ laws on
protecting non-agricultural GIs have not yet been harmonised. The
relevant national frameworks therefore vary significantly from one Member State to another. There are significant differences in definitions, registration
procedures and cost, scope of protection, and enforcement means. As a result,
non-agricultural GIs are subject to varying levels of protection, depending on
their country of production, building on the basic protection set out in the
TRIPS agreement.

In
all the Member States, non-agricultural products are covered by laws on unfair
competition or consumer deception. This is also the case for trade mark law,
which may also provide a degree of protection. Sui generis systems
providing GI protection to non-agricultural products are currently operating in
15 Member States.[11]
These laws take various forms, ranging from regional or national regulations on
specific crafts (e.g. ceramics), to specific laws on a certain product (e.g. Solingen knives) or to regional or national laws that protect all non-agricultural GI
products.[12]

Question: 1. Do you see advantages or disadvantages in the currently diverse levels and means of GI protection for non-agricultural products in the different Member States of the EU? Please explain your response.

2.
Potential economic, social and cultural benefits of extending GI protection to
non-agricultural products at EU level

2.1 The economic
potential of non-agricultural GIs

There
seem to be two main potential benefits of a harmonised EU GI system for
producers of non-agricultural products. Increasing the distinctiveness and
attractiveness of their products thanks to guaranteeing quality and origin
throughout the EU could boost sales[13] and
there would be more effective and uniform EU-wide protection against losses
caused by, counterfeiting and imitation.

GI protection
may apply to all kinds of non-agricultural products and methods of production,
from low- and medium-tech products, e.g. Český křišťál (Bohemian crystal), to more high-tech
ones. Recently, the Study estimated that direct and indirect employment in the
non-agricultural GI sector in Europe provides up to 4.08 million jobs.[14]
These jobs are predominantly in SMEs located in poorer regions.[15] Two
thirds of the regions from which non-agricultural GI products originate have a
poverty rate or an unemployment rate above 20 %.

Guaranteeing
the reputation and/or quality of a non-agricultural product enjoying GI
protection throughout the EU could help producers access promotion funds and
investment aid from public authorities and facilitate better access to trade fairs.
The chance to join an EU-wide harmonised GI scheme could also improve
collective organisation and management of the protected name by associations of
producers.

A famous GI could also bring more
publicity to the place or region of origin and provide multiplying effects for
example in encouraging tourism,[16]
trade fairs and cultural activities and, consequently, creating more job
opportunities.[17]

Employment
generated by a given product under a GI typically cannot be moved to other
locations, due to its inherent links to a territory. From this perspective,
improving the prosperity of certain regions by granting GI protection to
non-agricultural products could help keep jobs and wealth in certain
economically fragile areas.

Questions: 2. Do you think that enhanced and harmonised EU GI protection for non-agricultural products, at EU level, could have positive economic effects in the internal market as set out above? 3. Do you see adverse effects such protection could have on the EU economy?

2.2 Consumer
benefits

GIs
enable consumers who pay attention to the geographical origin of products, are
sensitive to the culture or tradition enshrined in them, or care about specific
characteristics or quality present in the goods to make informed, safe choices,
based on reliable information.[18]
GIs aim to provide consumers with certainty that a product has a particular
quality, characteristics, and/or reputation due to its particular place of
origin, if this is something they value.

Official
checks or monitoring mechanisms to ensure that products using a protected GI
comply with the product specifications are a key feature of the current EU GI
systems in the agricultural sector. GI protection is a tool to prevent
fraudulent use of a GI name in the market place. It does not intend to limit
the choice of products available to consumers, but instead reserves a specific
denomination for use by goods that meet the product specifications and have a
clear geographical link. It does not prevent other producers from marketing the
same type of goods under a different name. In essence, GIs are designed to
protect consumers from ending up with goods which do not have the qualities and
features they expect and for which they may be ready to pay a price premium.[19]

Questions: 4. Do you consider that a harmonised EU GI protection for non-agricultural products could benefit consumers? 5. Do you see potential negative consequences for consumers?

2.3 Supporting
EU’s international efforts to enhance the protection of GIs

Creating
unitary protection for GIs for non-agricultural products in the EU may also a
positively impact on negotiating trade agreements with third countries
interested in securing better protection for their non-agricultural GIs in the
EU. The absence of a harmonised and coherent EU system of GI protection for
non-agricultural GIs affects the EU’s capacity to negotiate the issue
bilaterally, and to achieve better protection in those countries for EU
agricultural GIs. The protection of third countries’ non-agricultural GIs in
the EU market has increasingly become a significant factor in a number of
bilateral negotiations with EU trading partners. These often have a remarkably
rich tradition in well-known handicrafts and non-agricultural products: for
instance, India protects certain non-agricultural GIs related to sarees, silk
paintings and shawls.

At
multilateral level in the WTO, the EU’s negotiating efforts to improve the
level of protection for GIs could also benefit from a unitary European system
of protection for non-agricultural GIs. In the WTO’s Doha development agenda
negotiations, the EU has acted to extend to all products the high level of
protection currently granted only to wine and spirits.

Question: 6. Do you see potential benefits or disadvantages of harmonised EU GI protection for non-agricultural products on EU trade relations with third countries? If so, where?

2.4 Preserving
and valuing European traditions, know-how, the diversity of cultural expression[20] and
cultural heritage

The
best way for typical GI-eligible non-agricultural products to effectively
compete is through their authenticity, distinctive quality, and other features
valued by consumers. They are under constant pressure from products usurping
their reputation, and these products are often of lower quality and are sold at
lower prices. The GI-eligible products can succeed if competition is based on
fair practices; however, if imitations e benefit from the reputation,
authenticity and quality expectation of the original products by using the
geographic name around which the reputation has crystallised, then the original
products may ultimately cease to be produced, and disappear e.g. the Lithuanian
flax textile industry. GI products keep traditional and precious know-how alive
and are passed on from generation to generation. Their production methods and
ancillary activities provide an identification point for local society that has
been built over a long time. GI products sustain cooperation networks among
producers and between producers and other local interested bodies, e.g. public
bodies and tourist organisations. They therefore help build social capital in a
region. Ultimately, a significant element of Europe’s historical, cultural and
social heritage may be damaged if GI products disappear due to a lack of appropriate
protection.

Questions: 7. Do you believe that harmonised protection for non-agricultural GIs at EU level would help preserve the traditional cultural and artistic heritage reflected in the eligible products? Please explain your response. 8. Would such protection contribute to building social capital in the areas of production?

3.
Issues and challenges in making non-agricultural products potentially eligible
for GI protection

The
stronger the reputation and recognition of a GI, the more likely it is that
competitors will try to take advantage of it and misuse the name on goods that
do not originate in the specific geographical area and/or do not meet the
relevant product specifications or quality features that the name implies.
Misusing a GI leads to loss of revenue and market share for legitimate traders
as well as potential reputational damage and additional legal costs.

According
to the Study, 57.4 % of examined products (n=94) reported major problems
and losses due to misuse of their GI.[21]
These include:

imitation
products coming from the same country,[22]
other EU countries[23]
or third countries, especially from Asia;[24]
evocation
of the protected name by unrelated products, for example the wording
‘Belgian stone’ for fake Pierre bleue de Belgique (stone), Turkish marbles
marketed under the denomination ‘Botticino Royal’ and ‘The New Botticino’;[25]
or
evocation
of the protected name by products that are not the same type of product,
e.g. Chinese granite, Indian slate and limestone from other countries that
use the name ‘natural stone from Castile and Leon’.[26]

The
costs of legal action against infringers may be a significant financial burden
for a company. For example, the estimated cost for Český granát (Czech Republic) of bringing a case before the court or administrative bodies are 200 000 CZK
(around 7770 euro) per year, and for Solingen it is about 50 000 euro per
year.[27]
Depending on the situation, the costs of ensuring
effective protection may be significantly higher.

The
Study shows that  producers adopt numerous strategies to protect themselves
against infringements, such as letters of protest (e.g. Harris Tweed,
Schwarzwälder Kuckucksuhr), anti-counterfeiting campaigns (e.g. Swiss Watches),
registering trade marks (e.g. the Ceramica Artistica e tradizionale di Vietri
sul Mare) or taking legal action (e.g. Deruta ceramics, Murano).

The
Study concludes that the outcome of all these actions is, however, often
uncertain, as a result of the lack of an EU unitary legal framework for
non-agricultural GI protection, leading to various systems with different
degrees of protection, enforcement and no clear universal framework.

Questions: 9. Do you believe that harmonised EU GI protection for non-agricultural products could help producers defend themselves against imitations and abuse? Please explain your response. 10. How could competing producers protect themselves against an over-reach of GI?

4.
Alternatives to EU harmonised protection

The
Study found that the existing national instruments provide a certain level of
protection when used for the purpose of providing GI protection at EU level for
non-agricultural products.

Laws
on unfair competition[28]
and consumer deception, which exist in all EU Member States, provide protection
against unfair commercial practices, including misleading information as to the
main characteristics of a product, such as its geographical origin.[29]
In practice, however, these laws are limited in the extent to which they can
provide effective protection against the misuse of non-agricultural names.

Moreover,
these laws still differ significantly from one Member State to another. For
example, different national, regional or local bodies[30]
(e.g. in Spain), or private consumer associations (e.g. Germany) are responsible for enforcing these laws, which implies different costs, procedures and
formal requirements. According to the Study,[31] in countries
where enforcement is available through such bodies, no example of action to
protect non-agricultural GIs has been found.

Furthermore,
it appears from the Study that producers often do not open civil proceedings
against unfair practice, as costs can be significant and evidence is often hard
to establish.[32]

Trade
mark protection also has its limits. It gives its owner the right to exclude
all others from using the trade mark. The trade mark (name, logo, etc.) chosen
does not have to have any link with the products or their origin. In contrast,
a protected GI aims to provide a guarantee to consumers that goods are produced
in a certain place and have specific qualities as a result. A trade mark
therefore typically cannot provide the same information and guarantees as a GI.

In some cases, a GI may obtain some
protection under trade mark law, more specifically through collective or
certification marks. Collective marks are owned collectively by a
group of producers (e.g. an association), and may be used by more than one
person, as long as the user is a member of the group and complies with the rules
it has set out. A certification mark is owned by a certifying legal entity that
checks that the mark is used according to certification standards. The
certifier controls use of the mark and has the exclusive right to prevent
unauthorised use. The certifier typically cannot make use of the mark itself,
and use is open to anybody that meets the certification standards. These kinds
of protection provide some of the features of GI protection. However, general
trade mark law does not provide for any predefined standards, in particular a
link to a specific geographical area, and leaves the holder entirely free to
define its own rules of use. Consequently, collective and certification marks
lack the core guarantee features of a GI scheme.[33]
The current EU trade mark system does not cover certification marks but allows
GI producers to register their name as a collective Community trade mark.

In
the majority of cases, regional or national regulations on specific crafts deal
only with collective strategies to promote or protect individual local crafts.
Specific laws on products actually set out product specifications (e.g. Solingen knives, Harris Tweed, Bordado da Madeira). Existing regional and national laws on
industry-wide protection are not harmonised, differing considerably in key
aspects, such as the definition of a GI, scope of protection, registration
procedures, fees, controls and enforcement. In addition, protection via
national laws can only ensure that the GI is respected in the relevant Member State. It does not provide protection across the EU or guarantee a level playing
field for protection in the single market.

Question: 11. What do you think of current alternatives to harmonised protection for non-agricultural GIs?

II — Options
for GI protection at EU level

An
EU-level response to the challenges outlined above could take various forms.
Better protection for GIs would need to be compatible with the existing
European and international legal framework and need to meet both economic and
stakeholder needs. The existing system for agricultural GIs is a clear point of
comparison. In this following section of the paper, the Commission is seeking
the views of interested parties on several parameters considered key to
designing a possible EU initiative on GI protection for non-agricultural
products.

1.
Objectives and criteria for protection

The
possible objectives for any new measures range from fulfilling the minimum
requirements on GI protection set up by TRIPS, to providing additional
criteria, like those that are included in the EU legislation on agricultural
GIs.

1.1 What label:
names and symbols

The
label most frequently used to refer to a product eligible for a GI protection
is its name. This very often includes the name of a geographical area (specific
place, region or country e.g. Herend[34]),
possibly associated with the name of the goods themselves, for example Scottish
tartan[35]
or tapisserie d’Aubusson.[36]

But a
non–geographical name can also constitute a GI denomination, provided it is
unambiguously associated with the place of origin. Extending the definition of
a GI to this kind of name would allow more products to be covered. This
solution was also adopted by the EU system relating to agricultural GIs, under
which feta cheese[37]
and Spanish sparkling wine Cava[38]
are protected as GIs, for example.

Another
option, which would allow even wider coverage, would be GI protection of
non-text signs or symbols which are unambiguously associated to a certain
region, specific place or country, such as for example the contours of a
geographical area.[39]

Questions: 12. If a new system was developed at EU level, should this protect GIs that cover non–geographical names which are unambiguously associated with a given place? 13. If so, how could be the system ensure that such protection does not affect the rights of other producers? 14. Should similar protection also cover symbols such as the contours of a geographical area? If so, under what conditions?

1.2 Which
indications should be excluded from GI protection?

The
TRIPS agreement provides for several possible exemptions from the obligation to
ensure protection for a GI. These include generic terms,[40]
cases where there is a conflicting prior trade mark[41] and,
to a certain extent, cases involving homonymous geographical indications.[42] A
term is considered generic if it is the common name for the kind of product or
service (rather than a specific example of a good or service) in the relevant
territory of the country where protection is requested. For example, the term
‘eau de cologne’ now denotes a certain kind of perfume, regardless of whether
or not it is produced in the region of Cologne, in Germany. Homonymous GIs are
those that are spelled or pronounced alike, but which identify products
originating in different places, usually in different countries. There is no
reason, in principle, why these should not be entitled to co-exist. However,
conditions may be placed on such coexistence to prevent consumers from being
misled.

These
exceptions are reflected in the EU Regulations on GIs for agricultural
products.[43]
The Regulations add other exemptions from registration, when names conflict
with the name of a plant variety or an animal breed[44]
and are likely to mislead the consumer as to the true origin of the product.
While these specific cases are not likely to be relevant in the context of
non-agricultural products, it would be necessary to determine whether the
specificities of non-agricultural products would justify adding other
exceptions to those set out in the TRIPS agreement.

Question: 15. Do you see a need to add any further exceptions to GI protection other than those already provided in TRIPS?  Please explain your response.

2. To
what should GI protection be applied: a cross-cutting vs. a sectoral approach?

A
sectoral approach would establish specific rules for different categories of
products, for instance those for which the presence of raw materials is
particularly important (e.g. stone). This is currently the structure at
European level in the agricultural area (where there are separate GI
regulations for wine, spirits, aromatised wines, and agricultural products and
foodstuffs), but the split seems mainly to be for historical reasons.
Alternatively, a cross-cutting approach would set out the core elements of the
system generally, to apply to any category of product.

Questions: 16. Do you see a need to differentiate between various protection schemes depending on the categories of non-agricultural products involved (sectoral approach)? If so, please explain why. 17. Do you think some products should be excluded from GI protection at EU level? If so, please specify.

3.
The link between product and territory

3.1 How strong
should the link with the territory be?

A GI
must identify a product as originating in a specific territory, region or
locality, where a given quality, reputation or other characteristic of the
goods is a result of its geographical origin. A GI is used when trading to
establish a connection between product quality, reputation or other
characteristics and the place of origin. A specific ‘causal link’ between the
product’s quality, reputation or other characteristics and their designed
geographical origin is required, as those qualities depend on the natural
conditions (specific geological, hydrological, soil and climate
characteristics) of the place of production and/or the ways human societies
work with them (i.e. know-how developed by the people in this area /particular
skills developed over the years by local experts).

The
natural link can take different forms. Regulation (EU) No 1151/2012 of the
European Parliament and of the Council of 21 November 2012 on a quality scheme
for agricultural products and foodstuffs,[45] for example,
provides for two types of GI labels for agricultural products and foodstuffs:
the ‘protected geographical indications’ (PGI) and ‘protected designations of
origin’ (PDO). The difference is based on the strength of the connection
with the geographical area. For a PGI, one of the production steps, processing
or preparation must take place in the area, while the raw material may come
from another area. For a PDO, the entire production process must take
place in the defined geographical area, and the raw materials must also come
from the same area. Natural links based on the strictly defined concept of ‘terroir’[46]
is even stronger in the wine sector, where, for both GI signs, all the
production stages must take place in the geographical area. In the case of a
PDO, 100 % of the grapes must exclusively originate from that area; this
figure is set at 85 % or more for a PGI.

This
link to a geographical location can also apply to non-agricultural products. In
some cases, such as marble and stone, the strength of the link is comparable to
that for agricultural products. The same variables set out above would apply.
In principle, the stronger the link, the more credible and authentic a product
will be in the eyes of the consumer. However, certain GIs may be based entirely
on human rather than natural inputs, or on reputation. The Study suggests that
few non-agricultural products identified as candidates for GI protection would
meet the strict ‘PDO requirements.[47]

Questions: 18. How strong should the link be between non-agricultural products and their place of origin, in order to qualify for GI protection in any new system? 19. Should a new system allow for two types of link (one stronger than the other) between non-agricultural products and their area of origin? 20. Should there be differences depending on different types of products? Please explain.

3.2 Quality and
product specification

A
GI is predominantly a quality commitment to consumers and a guarantee of a
level playing field for producers. A system granting GI protection therefore
requires the specific core features of the product and its production process
to be set out. In EU agricultural GI legislation, all the technical information
necessary to describe the product, its method of production and the
geographical area relating to the product should be provided by the producers
when they apply for registration. The product specification is a determining
factor in registering for GI protection.

Requiring the
description of product features ensures stable product quality, but does not
require a particular level of quality. This can only be achieved by requiring a
minimum quality level. However, identifying a meaningful quality benchmark may
not work for all products, and setting a particular level of quality requires
an element of discretion.

The
added value GIs bring is based on consumer trust. A GI scheme has to guarantee
to the consumer that the specific characteristics, given quality or reputation
of GIs are maintained during the whole period of protection. To achieve this
goal, the cross-EU GI system for agricultural products put in place numerous
requirements for checks after registration, to ensure products were meeting the
product specifications and the name was being properly used in the market
place. These checks are normally carried out by a designated public authority
or a selected and certified private body. Specific characteristics and quality
should, however, not be set out in an overly restrictive way. An overly
detailed description could slow down product innovation and, while traditional
products do not change very frequently, they do evolve to reflect developments
in processes and technology. The focus should be on quality, allowing
creativity to interact with traditional know-how. As an example, the designer
Carlo Scarpa worked closely in the 1940’s with master glassblowers on
pioneering techniques that are now a full part of the Vetro di Murano (glass)
tradition.

Questions: 21. Would a quality benchmark make sense for non-agricultural products? 22. How could such benchmark be defined? 23. Do you agree that there would be a need to check whether the specific characteristics, quality and origin of a GI are maintained during the whole period of protection? Please explain. 24. How do you think specific characteristics of the product should be defined to ensure quality and geographic origin meets the required standards, while not limiting innovation?

3.3 Reputation
attached to the product

Reputation
attributable to geographical origin could be used as a criterion in addition
to, or as an alternative to, a particular quality or inherent characteristic of
the product. This would allow GI protection to be extended only to products
that have already developed a recognised reputation among consumers. This kind
of solution would, however, disadvantage new or developing products which — by
definition — do not already have any reputation.

Questions: 25. Should ‘quality, reputation and other characteristics’ be required in order to obtain GI protection for non-agricultural products? If not all, which of these elements do you think should be required? Please explain your choice. 26. What should a product specification include? Should minimum requirements be set? (For example, relating to frequency, method for selecting products, and parties involved in different production and distribution stages.)

4.
How to enhance protection

4.1 Harmonising
national laws

Harmonising
national legislation on GIs would mean that a GI protection system would need
to be created in some Member States that currently do not have such a system.  For GIs to be effectively protected, a particular
indication would have to be protected throughout the internal market, or else
consumers risk being confused through identical GIs for different products from
different Member States.

On
this basis, harmonisation would require mutual recognition and protection of
GIs, excluding duplication. To avoid duplication, Member States would need to
be able to detect potentially conflicting GIs, including in foreign languages.
This would be difficult, especially if there is no supranational-level
objection process. A mechanism to resolve conflicts between similar indications
from different Member States would also need to be established.

To
ensure a uniform approach to implementing and enforcing GI protection, a
relatively high degree of procedural harmonisation would be necessary,
including on enforcement provisions. This option has been considered, but was
discarded, in the agricultural policy area, where protection of GIs exclusively
at EU level has been put in place through regulations.

4.2
Creating a single EU-wide system

Instead
of harmonising EU Member States’ national laws, a single EU-wide system could
be set up. This would provide a coherent system across the internal market and
could provide more efficient delivery of the service through one-stop shops,
creating protection applicable across the entire EU.

If
this is introduced, the question remains as to whether existing national
systems protecting GIs should co-exist with the new EU-level system. Parallel
systems like these already exist, for example in trade marks, and will exist in
the future in patents. They take a toolbox approach, allowing users to choose
the relevant level and scope of protection according to their needs.

An
exclusive EU system would be simpler, but it also means that protection for
names which are commercially relevant only in a single Member State or a region within a Member State would nevertheless have to be extended to all other
Member States as well.

If
parallel systems are used, various safeguards would be needed to ensure smooth
functioning, including a minimum level of harmonisation of national laws in
their interaction with EU law.

Potential
friction would be avoided if an exclusive and exhaustive EU-level system was
introduced, similar to the system currently in place in the agricultural sector.
As there would be no EU-wide protection granted at national level, transitional
arrangements would have to be arranged for pre-existing national GIs.

Questions: 27. Would harmonising national legislation be sufficient to effectively protect GIs for non-agricultural products across the internal market, or do you consider that a single EU-level protection system is required? 28. If you are in favour of a single EU system, should national systems of protection (e.g. the current sui generis national laws) continue to coexist? Please explain.

5.
Registration

In
principle, GIs could be protected without the need for registration. Without
registration, there is no need to organise administrative procedures to grant
protection. Systems that protect GIs without registration exist in one Member State (Latvia) and also in Switzerland where the law provides for specific measures and
penalties to protect consumers from misleading use of non-registered GIs.

The
absence of a registration system means that there would be no public registry
that could be searched to identify pre-existing GI names and identify the
relevant owners. This could lead to uncertainty about the existence or scope of
the protection. This would also make it more difficult to enforce the protection
granted. An EU-level registration process could follow the example of
agricultural GI systems (for which a registration system at EU level already
exists). This would provide more certainty, especially on implementing rights,
in the event of a dispute. A system with a registration process would obviously
require that companies carry out administrative tasks (filing an application,
objections, possible fees, etc.) linked to this process. This would generate
some administrative costs. Additional costs would also arise from the
subsequent management (e.g. enforcement, litigation) of the GI granted.

5.1 Role
for national administrations in an EU registration system

If a
registration system is agreed, this would raise the question of setting up a
registration process. GI registration applications will need to be analysed
against the relevant local context (including knowledge of the characteristics
of local raw materials, local traditions etc.). It may be difficult to leave
these tasks exclusively to a single central EU body. However, if it were left
to local experts to decide on how to examine conditions for granting
protection, there is a risk that diverging local practices develop. This could
damage the overall cohesion and credibility of the system.

For
agricultural products, this challenge was solved via a two-step system
where the central authority entrusts this aspect of the analysis to the
national authorities closest to the particular geographical environment and
human factors. Under this model, a clear distinction would be drawn between
common EU-wide criteria to be checked by the central authority, and local
specificities that more local bodies would check.

5.2 Administering an EU register

For
agricultural products, an EU-wide GI register is currently managed by the
European Commission. This kind of register for non-agricultural GIs could be
managed similarly, or delegated to a new or existing EU agency.

Questions: 29. If a new system were to be developed, do you think there should be a registration process to protect a non-agricultural GI? 30. Do you think that the potential costs of a system of registering GIs outweigh the costs of a system without registration? 31. Do you think the registration process should involve a national element, e.g. checking compliance with product specifications, indicated geographical area, quality, reputation etc.?

5.3 Content of
the process

5.3.1 Applicants

If a
process for registering GIs at EU level were to be put into place, the first
issue would be to determine who should be entitled to apply for protection.

In
the current agricultural EU-level GI system, typically, a group of producers
(or, exceptionally a single producer) may file applications to register a GI
name relating to areas inside or outside the EU. There are no reasons that
would justify a different approach for non-agricultural products.

However,
the results of the Study highlight that in some Member States, chambers of
commerce, local communities, state bodies or consumer associations are able to
apply for GI protection.[48]
Allowing consumer associations and state bodies to seek GI protection may
strengthen the quality aspect of the product specifications. However, producers
must remain directly involved in setting the rules which are going to be
applied to their production process.[49]

Questions: 32. If a new system is created, should producers and their associations be the only people allowed to apply to register non-agricultural GIs, or should other bodies be allowed to apply? If so, which ones? 33. Should individual producers be allowed to apply?

5.3.2 Objecting
to the registration of a GI

For the
credibility and legal certainty of a system, it would seem important to allow
interested parties to object to the registration of a label as a GI. The
objection process could first aim to ensure that the GI label meets the
required conditions (for example, that it is not a generic name) and that the
protection to be granted would not jeopardise pre-existing rights (e.g.
homonymous GIs, trade marks). EU agricultural legislation currently allows
objections from Member State or third-country
authorities, or any natural or legal person with a legitimate interest who is
established in a third country, or established or resident in a Member State other than that from which the GI application was submitted.[50]

Question: 34. If a new system were to be created, would you agree that an objection process should be included and that it should be open to the same type of interested parties as under the agricultural GI rules?

5.3.3 Fees

Around
the world, there is typically a fee for registering trade marks and patents
and, as reported in the Study, nine national authorities collect fees for
registering GIs[51], increasing
to ten with the accession of Croatia. Fees can help to cover the costs of managing
the registration of GIs, and they help limit registration requests to serious
and solid business projects. On the other hand, fees may particularly
discourage small producer groups from using the system. Registering GIs at EU
level in the agricultural sector is currently free of charge.[52]

Questions: 35. Should protecting non-agricultural GIs at EU level by registration require the payment of a fee?  36. What level of registration fee would you consider to be fair?

6.
Scope of protection

6.1 Level of
protection granted

To
bring about the intended results, the legal protection granted must offer
proper protection against a whole range of behaviours and practices that could
be harmful for the GI holder and the consumer. However, such protection must
not constitute an unjustified impediment to competition in the internal market.

The
TRIPS agreement provides for two types of protection: a general scheme, setting
minimum standards of protection for all types of products (Article 22) and a
specific scheme, establishing a higher level of protection, for wines and
spirits only (Article 23).

Article
22 TRIPS contains a general obligation for WTO members to provide protection
against misleading use of a GI and against use that constitutes an act of
unfair competition. The EU has already granted a much higher level of
protection for agricultural GIs. As a result, it could be difficult to justify
different treatment for non-agricultural products if we were to develop a new
system. Doing so could also have a negative impact on the EU strategy to secure
higher levels of protection for EU GIs in third countries.

Article
23 TRIPS, however, provides for a much higher level of protection, requiring
WTO members to prevent any use of a GI to identify wines or spirits that do not
originate in the place indicated by the GI, even if the true origin of the
goods is also indicated or the GI is used in translation or accompanied by
expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’. Wine and spirits GIs
have to be protected even if misuse would not cause the public to be misled.

Such
increased protection would bring considerable benefits to non-agricultural GI
producers. They would also benefit from protection being given to the name used
in translation in all official EU languages or accompanied by expressions such
as ‘type’ and ‘kind’. However, the risk of disputes between producers would
increase, as there might be conflict not only on the use of a GI name, but also
relating to its use in translation and in certain expressions.

Questions: 37. What scope of protection should be granted for non-agricultural GIs in the EU?  38.  Should the protection granted to non-agricultural GIs match the safeguards already provided to agricultural GIs at EU level. If so, how closely?

6.2 Monitoring and
enforcing GI rights

GIs
are special intellectual property rights in their legal nature, i.e. they are
not primarily individual private property but they belong to a whole community
of producers who meet a predefined set of product specifications and have a
link to a geographical location. They may also embody certain values which are
vital for the entire community, for example local traditions and cultural
heritage. For that reason, public authorities often support local GI producers
in monitoring and enforcing their rights. The EU, for example, has established ex
officio protection of agricultural GIs, where public authorities are
responsible for putting in place a system to check compliance with the legal
requirements and ensure the smooth functioning of the system. However,
introducing a system like this for non-agricultural GIs would impose additional
obligations and generate costs for public authorities.

Question: 39. Would you prefer a system to monitor and enforce non-agricultural GI rights that was exclusively private, public, or a combination of public and private? Please explain, taking into account, if possible, the effectiveness and costs of action to enforce rights.

6.3 Duration of
non-agricultural GI protection

For
some intellectual property rights s, e.g. patents and designs, maintaining a
monopoly for a very long period would not be beneficial to society. As a
result, their legal protection has a limited duration. This appears not to be
the case for trade marks and GIs that protect certain names. A registered
community trade mark, for example, is valid for ten years from the date the
application was filed, and it can be renewed indefinitely for further periods
of ten years. A unitary GI for agricultural products — the rationale of which is
to preserve regional/local heritage, traditions and know-how — is protected
indefinitely, with no renewal requirement. The majority of Member States which
have established a sui generis system to protect GIs for
non-agricultural products also provide for indefinite protection, without the
need for renewals.

Question: 40. In your opinion, should GI protection for non-agricultural products be unlimited in duration, or limited with the possibility of renewal? If you suggest a limited duration, how long should this be?

7.
After registration

7.1 Cancellation
of the protection

There
might be circumstances in which the protection granted should end, even if the
GI protection is granted for an indefinite period or if the prescribed time
limit has not yet elapsed. This could be the case, as in the agricultural GI
field, where products do not meet the conditions set out in the relevant
specification or where no product is placed on the market under the GI for a
significant period of time.[53]
A cancellation process could be administered by the body in charge of
registration, or alternatively directly by a court. This process would provide
an additional layer of control, and would contribute to the overall credibility
of the potential system. However, it might create uncertainty for rights
holders and increase costs for the body responsible for the process.

Questions: 41. Do you agree that there should be the possibility to cancel a GI after registration? 42. Who should be allowed to apply to cancel the GI? 43. If a new system were to be established, would you agree that a cancellation process should be introduced, with the same terms and conditions as for agricultural GIs?

7.2
Potential conflicts between GIs and trade marks

A
clear relationship between a potential GI system for non-agricultural products
and trade mark law would need to be defined, to avoid legal uncertainty and
confusion in relation to conflicting names.

The
general principle of intellectual property law, applicable to trade marks,
designs, patents etc., is that, the prior right prevails (i.e. the ‘first in
time, first in right’ principle). Applying this principle to the relationship
between trade marks and non-agricultural GIs could help simplify the whole
system.

The
unitary GI system for agricultural products contains specific provisions on the
relationship between GIs and trade marks. They are as follows:

a) a
pre-existing trade mark’s reputation may prevent a GI from being registered, if
registering the GI may mislead consumers as to the true identity of the product;

b)
any trade mark which does not fall into this situation and which has been
applied for, registered or established by use in good faith before the date of
application to register a GI at EU level should coexist with the registered GI;

c)
registration of a GI should prevent registration of a trade mark which was
applied for after the GI, if allowing this would conflict with the protection
granted to the GI. In this case, national or European trade mark offices should
refuse ex officio to register the trade mark.

To
ensure clarity and consistency at EU level, it could be argued that the same
rules should apply to the GI protection of non-agricultural products.

Questions: 44. Do you think that GIs and trade marks should be subject to the pure ‘first in time, first in right’ principle (i.e. the prior right always prevails)? 45. Should GIs prevail, in certain circumstances, over trade marks? Please explain.

Conclusion

All
interested parties are invited to comment on the issues raised in this Green
Paper by responding to the specific questions set out in it. Responses should
be sent by email to the following address to reach the Commission by 28 October
2014: MARKT-CONSULTATION-GIs@ec.europa.eu.

Responses
received will be published on the DG Internal Market and Services website
unless you request otherwise. It is important to read the specific privacy
statement attached to this consultation document for information on how your
personal data and consultation response will be handled.

[1] http://ec.europa.eu/internal\_market/copyright/docs/ipr\_strategy/COM\_2011\_287\_en.pdf.

[2] The Study was
conducted prior to the accession of Croatia to the European Union and does not
cover it.

[3] As with any other
products, those bearing a GI name have to comply with the existing EU system of
‘essential requirements’ and product safety requirements which ensure the
proper functioning of the internal market, safety of products for individuals
and protection of certain other public interests, e.g. protection of
environment or energy efficiency.

[4] The Paris Convention refers generally to ‘indications
of source’ and ‘appellations of origin’ as objects of industrial property, but
does not define these concepts. All Member States of the EU are parties to this
Convention.

[5] Ten Member States of the EU are parties to
the Lisbon Agreement. Seven EU MS ratified it: Bulgaria, the Czech Republic, France, Hungary, Italy, Portugal and Slovakia. Three signed it but never
ratified it: Spain, Greece and Romania.

[6] Article 22 TRIPS sets out the definition of
a GI and contains a general obligation for WTO members to provide protection
against misleading use of a GI and against use constituting an act of unfair
competition. It also requires parties to refuse or invalidate the registration
of trademarks that contain or consist of a GI for goods that do not originate
in the territory indicated, if using the indication in the trademark for such
goods might mislead the public as to the true place of origin. Article 23 TRIPS
accords a higher level of protection to GIs for wines and spirits. Article
23(1) sets a standard of absolute protection which requires parties to prevent
registration of a wines/spirits GI for wines or spirits that do not originate
in the relevant geographical location, even if the true origin of the goods is
also indicated or the geographical indication is used in translation or
accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’ or the
like. GIs for wines and spirits must be protected, even if misusing a GI name
would not mislead consumers.

[7] See C-3/91, Turrón de
Jijona, para. 37, or Prosciutto di
Parma, C-108/01, para 64.

[8] See C-478/07
Budĕjovický Budvar, para. 114.

[9] See Case C-35/13,
Felino, para. 28.

[10] The study on the Value of production of
agricultural products and foodstuffs, wines, aromatised wines and spirits
protected by a geographical indication (GI) is available under http://ec.europa.eu/agriculture/external-studies/value-gi\_en.htm.

[11] Belgium (Wallonia),
Bulgaria, Croatia, Czech Republic, Estonia, France, Germany, Hungary, Latvia,
Poland, Portugal, Romania, Slovakia, Slovenia, Spain (region of Murcia), see
the Study, p. 30.

[12] Study on geographical indication protection
for non-agricultural products in the internal market, p. 29-73, http://ec.europa.eu/internal\_market/indprop/docs/geo-indications/130322\_geo-indications-non-agri-study\_en.pdf

[13]Moreover, the GI status plays a significant
role in allowing producers to start supplying large-scale retailers and to find
new customers outside the areas where the products were traditionally known and
appreciated by consumers. Additionally, as consumers in foreign markets see GIs
as an additional guarantee of product quality, checked by an external body, a
GI title helps producers to obtain access to new export markets.

[14] The Study, p.133.

[15] source: European statistics on poverty and
unemployment for NUTS 2 Region. This is the case for example with dentelles de Binche
(lace –Belgium-) or louça de barro preto de Olho Marinho (Black Clay of Olho
Marinho -Portugal) .

[16] e.g. The European
Route of Ceramics (certified as « Cultural Route » of the Council of Europe
since May 2012) which aims at improving the attractiveness of ceramic
territories as sustainable tourism destinations.

[17]See: Geographical Indications, An
introduction, WIPO, http://www.wipo.int/export/sites/www/freepublications/en/geographical/952/wipo\_pub\_952.pdf.

[18] According to a
survey held by Eurobarometer (298) in 2008, 26 % of consumers said they
were interested in the country of origin of non-food products (not GIs as
such), 4th highest-ranked aspect after price, safety and brand.

[19]Only when consumers learn about the quality
of products, it is meaningful for producers to invest in manufacturing
high-quality products. If a firm decides to produce high quality products, the
returns from that decision will be secured in the future, as a result of
long-term investment by the producer in building a well established reputation.
For that reason, only when consumers are aware of quality, the firm has an
incentive to invest in its reputation and in consequence, receive price
premiums. The consumer, in exchange, receives a broad choice of high quality
and safe products.

[20] The European Union
since 2006 is Party to the UNESCO Convention on the Protection and Promotion of
the Diversity of Cultural Expressions, and according to Article 167 of the EU
treaty the Union shall take cultural aspects into account in its action under
other provisions of the Treaties, in particular in order to respect and to
promote the diversity of its cultures.

[21]The Study, p. 97.

[22]Tapisserie d’Aubusson (tapestry), faience de
Moustiers (earthenware), Pierre de Bourgogne (stone) etc.

[23]For example: Italian imitations of Pierre de
Bourgogne (stone), Romanian imitations of vetro di Murano (glass).

[24]E.g. dentelles de Binche (lace), Marmo di Carrara
(marble), Vetro di Murano (glass), Horezu ceramics, natural stone from Castile
and Leon.

[25] Botticino is a town
in the province of Brescia, Italy.

[26]The Study, p. 99.

[27]Ibid, p. 109.

[28]Unfair competition may be defined as ‘any
act of competition contrary to honest business practices and industrial
commercial matters’.

[29]Directive
2005/29/EC defines the unfair commercial practices which are prohibited in the
European Union (EU) and the other 3 EEA countries. Article 6 emphasises that a
commercial practice must be regarded as misleading if it contains false
information which deceives or is likely to deceive the average consumer notably
with regard to the main characteristics of the product, such as geographical or
commercial origin. Article 11 provides specific redress, as Member States and other EEA countries must ensure that adequate and effective means exist to
combat such practices. These means must include provisions allowing persons or
entities having a legitimate interest (consumers and competitors) to take legal
action against these unfair practices and/or to bring these practices before an
administrative authority.

[30]Administrative
authorities in Bulgaria, Cyprus, Estonia, Finland, Germany, Greece, Italy, Latvia, Luxembourg, Poland, Portugal, Romania and Slovenia have an obligation to
investigate the complaints that they receive. The majority of competent
authorities are able to dismiss complaints on varying grounds, e.g. in Belgium
for rationalisation purposes, 40 % of all complaints are dismissed and
only ones involving significant financial losses involved are dealt with.

[31] The Study, p. 35.

[32] The Study, p. 34-35.

[33]See
‘Guide to geographical indicators linking products and their origins’ by
Daniele Giovannucci, Tim Josling, William Kerr, Bernard O’Connor, May T. Yeung
(International Trade Centre).

[34]A well-known name used to designate
porcelain tableware and decorative objects named after the town of Herend in Hungary.

[35]“Tartan” is a traditional Scottish cloth
pattern of stripes in different colours and widths that cross each other to
form squares see http://www.merriam-webster.com/dictionary/tartan.
The Scottish Tartans Society (founded 1963) maintains a register of all known
tartans, numbering about 1,300.

[36]Aubusson carpets are floor coverings,
hand-woven in the villages of Aubusson and Felletin, in the département of
Creuse in central France.

[37]There is no region named ‘Feta’ in Greece
but the indication ‘Feta’ has, by long-term and consistent use, developed a
strong link with the geographical area where it is produced.

[38] Cava is produced in
Catalunya, Castilla y León, Aragón, Navarra, La Rioja, Extremadura and Valencia.

[39] A typical example
would be the cartographic outline of the (US) state of Florida for ‘oranges’.

[40]TRIPS Agreement Article 24(6): ‘Nothing
in this Section shall require a Member to apply its provisions in respect of a
geographical indication of any other Member with respect to goods or services
for which the relevant indication is identical with the term customary in
common language as the common name for such goods or services in the territory
of that Member. (…)’.

[41]Article
24(5) of the TRIPS Agreement provides that  ‘where a trademark has been applied
for or registered in good faith, or where rights to a trademark have been
acquired through use in good faith before the geographical indication is protected
in its country of origin; measures adopted to implement the TRIPS provisions
related to GIs shall not prejudice eligibility for or the validity of the
registration of a trademark, or the right to use a trademark, on the basis that
such a trademark is identical with, or similar to, a geographical indication.’.

[42]Article 23(3) of the TRIPS Agreement
provides ‘In the case of homonymous geographical indications for wines,
protection shall be accorded to each indication, subject to the provisions of
paragraph 4 of Article 22. Each Member shall determine the practical conditions
under which the homonymous indications in question will be differentiated from
each other, taking into account the need to ensure equitable treatment of the
producers concerned and that consumers are not misled.’

  Article 22(4) of the TRIPS Agreement
establishes that ‘The protection under paragraphs 1, 2 and 3 shall be
applicable against a geographical indication which, although literally true as
to the territory, region or locality in which the goods originate falsely
represents to the public that the goods originate in another territory.’.

[43]For
example, Article 6(1), (4) and (3) of Regulation (EU) No 1151/2012 on quality
schemes for agricultural products and foodstuffs.

[44]Article 6(2) of
Regulation (EU) No 1151/2012 on quality schemes for agricultural products and
foodstuffs.

[45] OJ L 343,
14.12.2012, p. 1.

[46]Terroir
is a concept in viticulture which relates the
attributes of a wine to the environmental conditions in which the grapes are
grown.

[47]The Study, p.298.

[48]
The Study, p. 302.

[49]Ibid,
p. 303.

[50]Article 51(1) of Regulation (EU) No 1151/2012 on quality
schemes for agricultural products and foodstuffs.

[51]See
Annex I to The Study.

[52] In the case of
agricultural products and foodstuffs, the possibility is offered to Member
States to charge a fee to cover their costs of managing the system at their
level (Article 47 of Regulation (EU) No 1151/2012).

[53] Article 54 of
Regulation (EU) No 1151/2012.

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