Public consultations on geographical indication protection for nonagricultural
Public consultations on geographical indication protection for non-agricultural products in the EU SUMMARY OF RESULTS Michael KOENIG Sylwia CZERSKA Valérie MARIE d'AVIGNEAU Industrial Property Unit J 1, DG GROWTH 1
General statistics Who replied to the consultations? Associations/ Organisations 37. 5% Consumers 0, 7% Companies 21. 3% Citizens 5. 9% Public Authorities, 26. 5% Lawyers & Academics 8. 1% ■ total 136 responses ■ most of them supportive ■ ± 60% producers ■ 18 MS or their authorities 2
General statistics ■ responses coming from 21 EU MS ■ and 6 non-EU countries ■ no responses from 7 MS ■ UK, FR, IT, ES most important contributors ■ total 136 responses (126 EU, 63 from sui generis systems) 2 0 1 1 28 29 17 10 9 8 Country coverage 1 3 1 2 4 0 1 2 0 0 0 2 1 1 0 2 1 0 1 2 4 1 1 1 AT BE BG CZ CY DE DK GR EE ES FI FR HR HU IE IT LT LU LV MT NL PL PT RO SE SK SL UK CO CH EC NO US TH 3
General statistics Points triggering most comments • Need for action • Debate on the necessity of sector specific rules • Nature of the link to the territory • Monitoring/enforcement 4
Level of satisfaction with the status quo Assessement of the status quo 11. 0% 22. 0% 66. 9% Advantage disadvantage Majority: insufficient protection - consumers confused about products' origin - burdensome enforcement (costs…) for producers Counter-arguments: - enough when protection at national level only - TM system (poss to license to others + delocalise production) could be enhanced by introducing collective and certification marks at EU level n/a 5
EU-wide GI protection: an effective tool against abuses? EU-wide GI protection would: 27. 7% - increase legal security and allow better joined action against infringements 2. 5% 69. 7% - limitators - protecting competitors against an over-reach of GI can be achieved by providing clear rules e. g. on product specification Yes No n/a 6
Is there a need for action? Economic and social effects expected 77. 5% 75. 8% 63. 3% 70. 0% 63. 1% 64. 1% 46. 3% 26. 7% 22. 5% 26. 4% 20. 0% 10. 0% yes no 9. 0% 2. 5% 1. 7% n/a yes no 27. 9% 27. 3% n/a yes no 2. 6% 2. 5% n/a yes 33. 3% 27. 5% no n/a yes no n/a positive economic effects adverse effects benefits for negative consumers positive effects impact for on consumers trade relations preserve with Third cultural Countries heritage build social capital 7
A majority: there is a need for action for the benefit of: … consumers: more information about products, more security, EU more attractive to third countries consumers/partners … business: better enforceability of rights/decrease of losses stemming from counterfeiting, contributes towards providing the financial resources required for future investment, higher competitiveness, more consumers/market share … regions: more tourism and cultural activities in the area, a way for cultural heritage to generate value (vs. benefit from public subsidies), sustain local knowledge and jobs WHILE it does not impede free trade with competing standard products, and there is no reason to discriminate against nonagricultural products 8
Other views: there is no need for action since … producers may feel compelled to apply for registration and prevented from moving their business, unlikely that SMEs (80%) will find the system worth investing (a GI does not create demand in itself), system might lead to higher costs for producers … consumers: an additional regulation/labelling may confuse them and increase prices … in general: - might be burdensome and costly for MS - an overreach of GI protection could create obstacles to free competition (protectionism) - Split views on benefits in the international field 9
Harmonisation vs. EU system 60. 0% 41. 7% 35. 0% 34. 0% 24. 3% 5. 0% A B A : pro harmonisation B : pro EU unitary system n/a yes no n/a maintaining national systems in parrallel 10
Harmonisation vs. EU system In any event, a user-friendly and transparent system 60% for a unitary protection system (mere harmonisation is not sufficient, implementation by MSs will inevitably lead to divergences): - open to third countries copy the EU agri system for an homogeneous protection in the internal market in particular for export purpose in case harmonisation would be chosen, it should be determined whether protection granted in one MS could automatically be recognised in other MSs + need to have effective enforcement measure in place Some concerns about keeping national systems - retain national systems for small producers? - Necessity under the Lisbon System? 11
Notion of GI (names) • some support for GI names unambiguously associated with a given place (provided the rules are strictly and cautiously defined unequivocal link as for Cava- and their implementation carefully checked) 49. 1% 40. 5% 28. 6% Should EU GI protection also cover … 33. 6% 37. 8% 10. 3% yes no n/a non geographical names associatedsymbols with a given such as place the? contours of a geographical area ? • concerns on the contours of a geographical area (in practice GI production tends to exceeds the boundaries of the defined area + might limit the possibilities of designing logos) 12
Notion of GI (exclusions) Exception, exclusion or differentiation 51. 2% 48. 3% 44. 5% 38. 8% 40. 7% 36. 1% 19. 3% 11. 0% 9. 9% yes no n/a add exceptions to those differentiation provided in depending TRIPS on categories of Exclude product some ? products ? No support for TRIPS exceptions +, but some stress the need for further consultation with the industry Products: - cross-cutting approach preferred (standard in third countries) - no exclusion (risk of WTO challenge). However, suggestion to exclude 'in general products whose production or use would be contrary to public order, national or EU legislation and international treaties (e. g. ivory carvings, 13 crocodile handbags and shoes)'
Eligibility criteria (link to place of origin) 40. 2% 33. 3% 44. 1% 36. 4% 26. 5% 19. 5% yes no n/a Contributors advocate for a 'strong' link Complex issue: requirement to use raw materials coming from a specific area (often faced with the fact that by using this raw materials one increase production costs) 2 types of link differences ? depending on types of products? Some support for two kind of links: Lisbon system requires an appellation of origin as a basis for international registration. However, 2 different links might confuse consumers (see Report of the European Court of Auditors, 2011) A new idea: loose link ranging from products which raw materials come from the area to products with a link more focused on a locally developed know-how Support for distinguishing between products, with however some common rules applicable to all 14
Eligibility criteria Quality and product specification 62. 0% 50. 8% 37. 5% 35. 5% 11. 7% 2. 5% yes no n/a Would a quality benchmark Need make to check sense maintenance ? of criteria during the whole period of protection Support for an objectively defined quality benchmark. Many comment that it should not be systematic and that definition should be left to producers or competent local authorities. Support for checking characteristics during the whole protection period. 15
Eligibility criteria Reputation attached to the product 65. 1% 38. 7% 34. 5% 26. 9% 31. 3% 3. 6% yes no n/a Should "quality, reputation and othershould characteristics minimumberequirement required ? be set for product specification ? either quality, reputation or other characteristics (follow TRIPS) Product specification to include at least: local area, product's processing transformation methods including steps taking place in the geographical area, link between product's quality, reputation or other characteristics (including know-how) and local area; authentication and quality control processes, parties involved in the production 16
Scope of protection Should the protection granted to non-agri. GIs match agri. GIs safeguards ? yes 37. 8% 57. 1% no n/a 5. 0% Majority in favour of high level of protection as provided in the agri. area including an "ex officio protection" which would require the competent national authorities to intervene ≠ counterargument that "protection for agricultural products is currently set at a level that prevents other producers from even referring to a protected product by stating that their product has similar characteristics or has been produced using a 17 similar method" which goes too far
Which procedure to grant EU GI protection? Registration process 73. 9% 54. 2% 39. 8% 25. 2% 42. 5% 41. 5% 18. 6% 3. 3% 0. 8% yes no n/a Should there registration be a registration process system processoutweigh ? costs Should of non-registration the registration process involve system? a national element ? Support for registration: discourage imitators, legal certainty, publication is crucial, the main costs of a GI relate to the set-up of the GI system (establishing groups of producers, product specifications and controls) and not to the registration itself + voluntary + possibility to charge a fee National element: local/regional expertise needed (strict deadlines 18 should be imposed to avoid lengthy proceedings)
Which procedure to grant EU GI protection? Applicants 52. 9% 37. 0% 28. 6% 38. 7% 34. 5% 8. 4% yes no n/a should others bodies than producers be allowed to apply should? individual producers be allowed to apply ? other applicants than producers: national bodies, chambers of commerce, local communities, municipalities, consumers associations, certification bodies, international organisations, educational establishments and charities, interest groups and even natural persons Support for individual producers, provided it remains exceptional 19
Which procedure to grant EU GI protection? Should an objection procedure to the registration be provided ? 31. 1% yes no 1. 7% 67. 2% n/a Yes to ensure that all interested parties can voice their concerns and secure protection for their prior rights (e. g. TMs) objection procedure should be also open to all affected, incl. from third 20 countries
Which procedure to grant EU GI protection? Fees and period of registration 52. 1% 35. 0% 29. 4% 18. 5% yes no 12. 8% n/a Should the registration process require the payment of a fee ? A B n/a Should the GI protection be : A limited - B unlimited support for fees, provided they are close to actual administrative costs and affordable for SMEs (max 250 -500 euros) duration: unlimited with a possibility of cancellation e. g. when the product does not comply with the protection requirements, the 21 corresponding specifications
GIs vs. Trade marks 53. 0% 43. 4% 34. 8% 32. 7% 23. 9% 12. 2% yes no n/a Should the pure "first in time, first in right" principle should apply GIs prevail ? over trade marks ? Most in favour of following the EU agricultural GI system: no need to differentiate between agri. and non agri. products ("The balance achieved by Regulation 1151/2012 in relation to agricultural GIs is both fair and in line with the EU’s international legal obligations") Should GIs prevail over TMs? : public aspect of GI protection, specificity as compared to other IPRs. However, "co-existence should be possible. Experience shows that, after some time, prior trade mark owners join the GI system" 22
Enforcement/monitoring What type of monitoring system ? 5. 0% 12. 6% private 38. 7% public combination n/a 43. 7% Combination: . when granting GI protection: by an independent authority preferably a public one. during products life: controls by authorised private bodies. Ex officio support for enforcement 23
Public consultations on geographical indication protection for non-agricultural products in the EU Q&A More info under : http: //ec. europa. eu/internal_market/indprop/geoindications/index_en. htm#maincontent. Sec 1 Industrial Property Unit J 1, DG GROWTH 24
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