Find out today what the legal world will be talking about tomorrow.
Germany is a country with a multitude of traditional regional confectionery specialties, some of them world-famous such as Lübecker Marzipan, Dresdner Stollen, Aachener Printen, and Nürnberger Lebkuchen, and other more local insider tips, such as Bremer Kluten, Langenburger Wibele and Salzwedeler Baumkuchen.
Exceedingly few of these are protected throughout the EU as protected designation of origin, geographical indication or traditional speciality guaranteed, however. While Italy has currently already protected 277, France 223 and Spain at least 184 products, Germany is lagging far behind here with only 84 products, of which only 10 are baked and confectionery products.1
Yet it is precisely such information as the geographical origin as well as the methods of production and processing of agricultural commodities and the traditional production of certain products, which are increasingly perceived by consumers as quality criterion and provide a real competitive advantage. Consumers prefer regional food products, and the corresponding labeling of the products plays an important role in this. For instance, a survey conducted in Baden-Württemberg by the marketing and sales promotion company for agricultural and forestry products from Baden-Württemberg (MBW) of 500 households in November 2011 revealed that 83% of those surveyed regard an official seal of quality to be very important to important.2
Our neighboring country, France, also shows what success seals of quality can have. France provides an example of how the marketing of regional specialties through the introduction and defense of geographical indications of origin can be conducted so that an outstanding quality concept has developed for such protected products on the market. As a result, in the area of luxury items and foodstuffs French products are frequently significantly easier and more price-stable to market by their producers and the region of origin is also generally positively perceived.
1. European protection of “geographical indications of origin”
The EU has recognized the potential of geographical indications of origin as an essential support of agricultural economy and of regional marketing and included it as a regulatory subject in the European agricultural policy (currently regulated in Regulation 1151/2012). In this framework several quality marks were created, in order to promote high-quality agricultural commodities and products as well as those with outstanding features, methods of production and preparation.
1.1 The Protected Geographical Indication
Protected geographical indications guarantee on the European level that an agricultural product or a foodstuff originates from a certain area, a certain place or country and in which a certain quality, the reputation or another property arises from this geographical area and was produced and/or processed and/or prepared in a certain delimited area. Contrary to a common opinion, however, it is sufficient that one of the producing or production steps occurs in this area. In the case of processed foods, detailed product specifications are indicated, which must be adhered to precisely by the producer and the production of Stollen must occur in a precisely defined area in and around Dresden, whereas the ingredients do not have to originate from the region.
1.2 The Protected Designation of Origin
Unlike in the case of the protected geographical indication, here all steps of the production must occur in the region. Only then may an agricultural product or a foodstuff bear the mark as a European protected indication of origin.
This guarantees that a product marked thus originates from a certain area, a certain place or country, its quality and properties are based precisely on the geographical conditions including the natural and human influences and was produced, processed and prepared in the specifically delimited geographical area.
Known examples are “Prosciutto di Parma”, “Camembert de Normandie” and “Roquefort”. In Germany, such strict indications of origin if anything play a niche role with a few products like “Altenburger Ziegenkäse” or “Lüneburger Heidschnucken”. There are currently no confectioneries, which are protected as indications of origin, which may also frequently not be feasible with regard to the abundance of ingredients. They are more suitable for meat and dairy products.
1.3 The Traditional Specialty Guaranteed
Finally, in the European system there still are traditional specialties guaranteed. It does not come down to the regional origin of commodities or products, however, but rather is supposed to guarantee the traditional ingredients or the traditional production methods of a commodity, for example, of “Mozzarella” or “Serrano ham”. For Germany, no such products are currently protected.3
1.4 The road to the registered indication of origin
The characteristic of geographical indications of origin is that in contrast to trademarks they are not assigned to a specific person or a specific company, but rather that several profit as beneficiary from the indications of origin. In Germany, these applications must be filed at the German Patent and Trade Mark Office (GPTO). A two-stage examination occurs initially by the GPTO, where applicable, involving the responsible federal and state ministries as well as other expert public authorities. After publication and expiry of an objection period, the application is transmitted to the European Commission. The European Commission once again conducts an examination of its own, before the application is also published on the European level. If no objections are filed after the expiry of a certain period, the indication of origin is recorded in the register at the European Commission as a protected indication of origin, protected geographical indication or guaranteed traditional specialty. After registration, they protect product designations against improper use for other products, for example, inferior similar products, and against counterfeits. In the end, they also protect the consumer, who can rely on the contents of the registered indication of origin.
1.5 Right of use
The EU regulatory guidelines (in Regulation 1151/2012) provide that whoever fulfills the product specifications coupled with the use of the protected geographical indications of origin, automatically has a right (approval-free) of use, without older trademark rights being able to be invoked against the latter. Thus, in the regulation, the EU legislature expressly speaks in favor of the earlier priority trademarks not triggering a right of prohibition, but rather the trademarks taking a back seat to the provision of Regulation 1151/2012. Therefore, one should take care especially in respect to the latter point and define one's protection strategy at an early stage. Wanting too much here, sometimes means harming oneself.
2. The geographical indication of origin as a national protective right
Besides the aforesaid registered EU quality mark, the protection also exists in Germany in the Trademark Act as a “geographical indication of origin” for domestic and foreign products. Direct protection is granted for the latter, without an examination by a public authority, registration in a register or other formalities occurring. The indication that a product originates from a certain geographical area is already protected, if this designation is not a generic designation. The protection is expanded if the products thus marked have special properties or a special quality (qualified indications of origin) or the indication of origin enjoys a special reputation. In the meantime, however, the EU quality marks have a larger significance due to their entry into the register.
3. Protection of the geographical indications of origin by means of the collective mark
In order to complete the protection against misuse, the abovedesignated geographical indications of origin are additionally registered as collective marks, which can be done exclusively by associations or legal entities under public law. Such associations are for the most part a merger of producers, municipalities and manufacturers of agricultural products and foodstuffs (for example, Dresdner Stollen protective association, association of Hessian fruit and fruit juice press houses for “Hessischer Apfelwein”).
4. Conclusion
The protection of geographical indications of origin is an important instrument to legally secure price stability by building consumer confidence. In particular, small and medium-sized manufacturers of traditional products can also profit substantially from this. The legal measures, which are available for this, are different and should be defined in advance and coordinated among the manufacturers. Whoever does this, secures competitive advantages at an early stage.
__________
1 DOOR Database of the EU Commission
2www.ernaehrung-bw.info
3 Federal Ministry of Food and Agriculture
Yet it is precisely such information as the geographical origin as well as the methods of production and processing of agricultural commodities and the traditional production of certain products, which are increasingly perceived by consumers as quality criterion and provide a real competitive advantage. Consumers prefer regional food products, and the corresponding labeling of the products plays an important role in this. For instance, a survey conducted in Baden-Württemberg by the marketing and sales promotion company for agricultural and forestry products from Baden-Württemberg (MBW) of 500 households in November 2011 revealed that 83% of those surveyed regard an official seal of quality to be very important to important.2
Our neighboring country, France, also shows what success seals of quality can have. France provides an example of how the marketing of regional specialties through the introduction and defense of geographical indications of origin can be conducted so that an outstanding quality concept has developed for such protected products on the market. As a result, in the area of luxury items and foodstuffs French products are frequently significantly easier and more price-stable to market by their producers and the region of origin is also generally positively perceived.
1. European protection of “geographical indications of origin”
The EU has recognized the potential of geographical indications of origin as an essential support of agricultural economy and of regional marketing and included it as a regulatory subject in the European agricultural policy (currently regulated in Regulation 1151/2012). In this framework several quality marks were created, in order to promote high-quality agricultural commodities and products as well as those with outstanding features, methods of production and preparation.
1.1 The Protected Geographical Indication
Protected geographical indications guarantee on the European level that an agricultural product or a foodstuff originates from a certain area, a certain place or country and in which a certain quality, the reputation or another property arises from this geographical area and was produced and/or processed and/or prepared in a certain delimited area. Contrary to a common opinion, however, it is sufficient that one of the producing or production steps occurs in this area. In the case of processed foods, detailed product specifications are indicated, which must be adhered to precisely by the producer and the production of Stollen must occur in a precisely defined area in and around Dresden, whereas the ingredients do not have to originate from the region.
1.2 The Protected Designation of Origin
Unlike in the case of the protected geographical indication, here all steps of the production must occur in the region. Only then may an agricultural product or a foodstuff bear the mark as a European protected indication of origin.
This guarantees that a product marked thus originates from a certain area, a certain place or country, its quality and properties are based precisely on the geographical conditions including the natural and human influences and was produced, processed and prepared in the specifically delimited geographical area.
Known examples are “Prosciutto di Parma”, “Camembert de Normandie” and “Roquefort”. In Germany, such strict indications of origin if anything play a niche role with a few products like “Altenburger Ziegenkäse” or “Lüneburger Heidschnucken”. There are currently no confectioneries, which are protected as indications of origin, which may also frequently not be feasible with regard to the abundance of ingredients. They are more suitable for meat and dairy products.
1.3 The Traditional Specialty Guaranteed
Finally, in the European system there still are traditional specialties guaranteed. It does not come down to the regional origin of commodities or products, however, but rather is supposed to guarantee the traditional ingredients or the traditional production methods of a commodity, for example, of “Mozzarella” or “Serrano ham”. For Germany, no such products are currently protected.3
1.4 The road to the registered indication of origin
The characteristic of geographical indications of origin is that in contrast to trademarks they are not assigned to a specific person or a specific company, but rather that several profit as beneficiary from the indications of origin. In Germany, these applications must be filed at the German Patent and Trade Mark Office (GPTO). A two-stage examination occurs initially by the GPTO, where applicable, involving the responsible federal and state ministries as well as other expert public authorities. After publication and expiry of an objection period, the application is transmitted to the European Commission. The European Commission once again conducts an examination of its own, before the application is also published on the European level. If no objections are filed after the expiry of a certain period, the indication of origin is recorded in the register at the European Commission as a protected indication of origin, protected geographical indication or guaranteed traditional specialty. After registration, they protect product designations against improper use for other products, for example, inferior similar products, and against counterfeits. In the end, they also protect the consumer, who can rely on the contents of the registered indication of origin.
1.5 Right of use
The EU regulatory guidelines (in Regulation 1151/2012) provide that whoever fulfills the product specifications coupled with the use of the protected geographical indications of origin, automatically has a right (approval-free) of use, without older trademark rights being able to be invoked against the latter. Thus, in the regulation, the EU legislature expressly speaks in favor of the earlier priority trademarks not triggering a right of prohibition, but rather the trademarks taking a back seat to the provision of Regulation 1151/2012. Therefore, one should take care especially in respect to the latter point and define one's protection strategy at an early stage. Wanting too much here, sometimes means harming oneself.
2. The geographical indication of origin as a national protective right
Besides the aforesaid registered EU quality mark, the protection also exists in Germany in the Trademark Act as a “geographical indication of origin” for domestic and foreign products. Direct protection is granted for the latter, without an examination by a public authority, registration in a register or other formalities occurring. The indication that a product originates from a certain geographical area is already protected, if this designation is not a generic designation. The protection is expanded if the products thus marked have special properties or a special quality (qualified indications of origin) or the indication of origin enjoys a special reputation. In the meantime, however, the EU quality marks have a larger significance due to their entry into the register.
3. Protection of the geographical indications of origin by means of the collective mark
In order to complete the protection against misuse, the abovedesignated geographical indications of origin are additionally registered as collective marks, which can be done exclusively by associations or legal entities under public law. Such associations are for the most part a merger of producers, municipalities and manufacturers of agricultural products and foodstuffs (for example, Dresdner Stollen protective association, association of Hessian fruit and fruit juice press houses for “Hessischer Apfelwein”).
4. Conclusion
The protection of geographical indications of origin is an important instrument to legally secure price stability by building consumer confidence. In particular, small and medium-sized manufacturers of traditional products can also profit substantially from this. The legal measures, which are available for this, are different and should be defined in advance and coordinated among the manufacturers. Whoever does this, secures competitive advantages at an early stage.
__________
1 DOOR Database of the EU Commission
2www.ernaehrung-bw.info
3 Federal Ministry of Food and Agriculture
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