Indications of origin

What do the words Coca Cola and Champagne mean to you? They're both names of drinks - correct. What else?

Well, one is a trade mark, while the other is a protected designation of origin. Both give us, the consumer, information about where the product comes from. And that, according to the European Court of Justice, is the essential function of a trade mark. Protected designations of origin and protected geographic indications of origin tell us where in the world the product comes from, but they do not tell us who the specific producer is.

In the case of our example, Champagne, from that word alone, we know that it is a sparkling wine, made in the Champagne region of France, from a grape grown and harvested there, and processed using a technique perfected there throughout generations. Any other sparkling white wine produced, even from the same grape variety, and using the same technique, but hailing from another part of the world, or even France, cannot be called Champagne.

A PDO requires that the quality or characteristics of the resultant well-known product are essentially due to the geographic and human environment of the region. A PGI requires that the product has a specific quality attributable to the area. Production, processing and preparation (the 3 Ps) must all take place in that area.

The aim is to give clear and succinct information to consumers - a refreshing concept given the sea of information concerning all products reaching us from all directions. A PGI/PDO therefore conveys information not only about the origin of the product but also about tradition and quality.

Like trademarks, PDOs and PGIs may become generic; and if this happens they will no longer be registered, as has happened to cheddar.

PGIs and PDOs are regulated by national laws all over the world. There has also been harmonisation at a regional level by the European Union. Council Regulation 2081 of 1992 regulates the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

Maltese legislation on the subject is embodied in subsidiary legislation passed under the Product Safety Act and under the Wine Act. The latter is specific to wine, while the former is more general to all foodstuffs. Each outlines the application process with the Malta Standards Authority (foodstuffs) and the Viticulture and Oenology Unit (wine). A register is also kept by the Authority for each product produced in Malta which is granted recognition under EU regulation. Other subsidiary legislation under the Wine Act discusses, in great detail, the requisites for designation of origins and geographic indications for wines.

Thanks to the effect of these laws we know that Parmiggiano Reggiano is cheese from Parma, Italy; Prosciutto di Parma is from Parma, Italy; port is a drink from Oporto, Portugal; champagne is sparkling wine from the region of the same name from France; and more controversially, feta is a Greek cheese (although the Danes are very much opposed to this) and Budweiser is beer produced in the Budvar region of the Czech Republic.

However, in 2003, the US and Australia brought an action against the EU claiming that protection of GIs violated the World Trade Organisation's Trips Agreement. The two grounds of opposition were that non-EU GIs could not be protected in the EU (the US gave examples such as Idaho potatoes, and Florida oranges), and the EU GIs may infringe US trade marks (which is one of the main arguments in the Budweiser-Budvar litigation).

The WTO panel stated that the EU's system of registration for GIs failed to offer parallel treatment for non-EU products, and that non-EU trademark owners should not be denied their rights.

PGIs and PDOs are distinct to intellectual property rights such as trademarks, but since they are names which convey information on origin, they are easily approximated. It is important to note that they are two separate ways of protecting names of products, but importantly a PGI/PDO awards a very special right to a community to brand the produce of its region with a seal denoting quality. www.fenechlaw.com

The author specialises in intellectual property law and art law at Fenech & Fenech Advocates.