Trade Marks (TMs) and. Massimo Vittori, Secretary General

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1 Trade Marks (TMs) and Geographical Indications (GIs) Massimo Vittori, Secretary General

2 Executive summary I. Why does origin matter? II. Definitions, legal options, practical problems encountered by GI producers III. Problems arising from the overlapping between GIs and TMs IV. Some conclusions

3 Why does origin matter? Producers Positioning and marketing origin/quality through differentiation (investment) Transformation of commodities into niche products Consumers More conscious and demanding di (search for quality, healthy practices) Premium price Trade regulations shifted towards traceability

4 Why does origin matter? DG Agri study on 820 foodstuff PDO-PGI (2010) Value before distribution:14.2 billion EUR (biological agriculture: 12 billion) Export: 700 million EUR Ernst&Young evaluation of the PDO «Prosciutto di San Daniele (2008) 330 million EUR Study on increased revenues derived from quality differentiation on coffee in Colombia between 20 s and 90 s 3.5 billion US$

5 Definitions (TRIPS) GIs: indications identifying goods when quality, reputation or characteristics depend on the geographical origin (art. 22) TMs: any sign capable of distinguishing g goods and services of an undertaking (art. 15) Two different and separate categories of IPRs

6 Sui generis and TM systems to protect geographical names Trademarks Need of secondary meaning (except collective and certification marks) First in time first in right principle Individual ownership (except collective and certification marks) 10-year protection + need to use Name not shielded from genericity Protection: likelihood of confusion approach Registration costs + renewals Private enforcement Sui generis No need of secondary meaning Possible coexistence (good faith) Collective ownership Indefinite it protection ti Registered names never generic Covers protection translation + with expressions like «style» + evocation No registration costs / single fee Private and Public enforcement

7 Characteristics of GI groups Small producers Limited financial resources Limited access to legal advice Sui generis (evocation in particular) Sui generis (evocation in particular) matches producers` needs

8 Evocation (I) 1. Case C-87/97, PDO Gorgonzola v Cambozola trademark Court of Justice of the European Communities (ECJ), it is possible for a protected designation to be evoked where there is no likelihood of confusion between the products concerned and even where no Community protection extends to the parts of that designation which are echoed in the term or terms at issue.

9 Evocation (II) 2. European Commission v Federal Republic of Germany Court of justice of the European communities (Grand Chamber), Judgment of 26 February 2008, paragraphs 48/49: That proximity and the phonetic and visual similarities referred to in paragraph 46 above are such as to bring to the mind of the consumer the cheese protected by the PDO Parmigiano Reggiano, when he is confronted by a hard cheese, grated or intended to be grated, bearing the name Parmesan. In those circumstances, the use of the name Parmesan must be regarded, in the sense of Article 13(1)(b) ) of Regulation No 2081/92, as an evocation of the PDO Parmigiano Reggiano.

10 Evocation (III) 3. Commercial Court of Oviedo (2010) Considered the term Parmeso, used by ILAS to commercialize grated cheese, an evocation of PDO Parmigiano Reggiano (art. 13 of Reg. 510/2006) Recognized the right of the Consorzio to act in defense of the PDO Damages

11 Major problems encountered by producers in securing GI protection

12 In countries using TMs (including cert. and coll. marks) See: origin handbook on American Origin Products Costs - Registration: 10,000 US$ - Control de mark (including license requirements): more 200,000 US$ per year spent by the Idaho Potato Commission - USPTO passive approach in dealing with requests of registrations containing the protected name (in 2007, the Colombia Coffee Federation spent 577,000 US$)

13 In countries using TMs (including cert. and coll. marks) Costs (II) - Monitoring + protecting the TM from dilution and becoming generics (an opposition proceeding can excess 100,000 US$) - Litigation: more than 1,000,000 USD spent by the Idaho Potato Commission in enforcement cases in NY over the past 12 years

14 In countries using TMs (including cert. and coll. marks) Certification marks - Owners is prohibited from using the mark on goods or on advertising - It cannot be used for purpose p other than to certify Collective marks - Not useful for products that reach consumers in a packaged form (coffee for instance, only growers could use the mark)

15 Problems arising from the overlapping between GIs and TMs

16 GIs and TMs used in tandem

17 Registered TMs bearing GIs WTO: grandfather clause (art of TRIPS) ECJ Case No. C-343/07 Bavaria NV v. Bayerishsher Brauerbund case (good faith element for coexistence)

18 GIs protected prior to later TMs TRIPS solutions (art. 22 and 23) Art 14 of EU Reg. 510/2006 (corresponding art. for Reg. concerning wines and spirits): applications for TM registrations conflicting with a prior PDO/PGI shall be refused OHIM practice to accept such requests, if applicants restrict the application to products from the geographic area: opposition costs USPTO passive approach What about developing countries?

19 Some conclusions Change in OHIM practice with respect to TM applications conflicting with PDO- PGI WTO Multilateral l Register - Open to all products - Binding on all WTO members - Respectful of the territorial nature of IPRs

20 Thank you gi.com

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