Explanatory Memorandum to COM(2022)174 - Geographical indication protection for craft and industrial products - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)174 - Geographical indication protection for craft and industrial products. |
|---|---|
| source | COM(2022)174  |
| date | 13-04-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Union law protects geographical indications (GIs) for agricultural products and foodstuffs, wines and spirit drinks. However, there is currently no EU-wide mechanism to protect the names of products such as Murano glass, Solingen cutlery, Donegal tweed, Halas lace or Gablonz jewellery. While over half Member States have established national specific (sui generis) protection systems for craft and industrial (CI) products with different characteristics, the others use only trade marks and/or rules on unfair competition to protect their intangible assets. In addition, within the internal market, there is no cross-border system mutually recognising national protection systems. At Union level, producers can register individual trade marks, collective trade marks and certification trade marks. However, using trade mark protection does not enable producers of industrial and handicraft products to certify at Union level the link between quality and geographical origin that signals qualities attributed to specific local skills and traditions.
Due to legal uncertainty resulting from the fragmentation, producers face challenges protecting geographically-linked CI products. They have less of an incentive to invest in such products, to cooperate to create niche markets, and to retain unique local skills and traditions. In particular, small producers (SMEs and micro-businesses) may lose market opportunities.
The proposal aims therefore at establishing a directly applicable GI protection for CI products at Union level. It aims at improving the position of producers to protect their CI products throughout the Union against counterfeiting and to give them incentives to invest into these products. The proposal also aims to improve the visibility of authentic CI products on the markets and therefore benefit consumers. The regions, in which producers operate, should benefit from the protection of typical products and be able to develop the potential for tourism, to keep and attract qualified work force as well as to safeguard their cultural heritage. The proposal is based on the specific GI protection, which implies that producers as well as public authorities collaborate on developing product specifications. This approach aims to help in particular micro, small or medium-sized enterprises (MSMEs) that lack resources for devising new product specifications
The proposal aims to ensure that producers can fully benefit from the international framework for the registration and protection of GIs (‘Lisbon system’). In November 2019, the EU acceded to the Geneva Act of the Lisbon Agreement on Appellations of Origins and Geographical Indications, a treaty administered by the World Intellectual Property Organization (WIPO). EU producers of CI products cannot currently claim protection under the Geneva Act and the EU has to reject requests for such protection from members of the Geneva Act. In the same vein, EU producers cannot benefit from the protection granted by EU trade agreements that currently only cover agricultural GI products. The proposal aims to close this gap.
• Consistency with existing policy provisions in the policy area
The proposal complements existing EU protection system for GIs in the agricultural domain. Given the different nature of CI products, it follows similar approaches taken on the eligibility conditions and the protection of GIs for agricultural products and foodstuffs, wines and spirits as set out in:
- Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs,
- Regulation (EU) 2019/787 of the European Parliament and of the Council on the definition, description, presentation and labelling of spirit drinks,
- and Regulation (EU) No 1308/2013 of the European Parliament establishing a common organisation of the markets in agricultural products.
The proposal follows a similar approach as the ongoing reform of the current GI regime. The reform will repeal the first Regulation and amend the other two Regulations listed above.
The proposal amends Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, concerning the provisions governing possible conflicts between GIs and trade marks as well as the additional tasks set out for the European Union Intellectual Property Office (‘EUIPO’ or ‘the Office’).
The proposal is also consistent with Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights, which, under its Article 2(1), is applicable to all intellectual property rights protected under Union law and under Member States’ national laws.
The proposal establishes the connection between the EU GI protection system for CI products and the Lisbon system. It does this by proposing an amendment to Council Decision (EU) 2019/1754 on the accession of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications.
• Consistency with other Union policies
The proposal is consistent with the EU industrial policy as set out in the Commission Communication “Updating the 2020 new industrial strategy: Building a stronger single market for Europe’s recovery”1. The updated industrial strategy highlights that the tourism sector has been strongly hit by the COVID-19 pandemic and that, in the wake of the pandemic, smaller businesses continue to be more vulnerable, with some 60% reporting a drop in turnover in the second half of 2020. For these reasons, the proposal aims to boost the tourism sector, particularly in poorer regions and help MSMEs developing new geographically-linked products.
The proposal also shares specific objectives with the Commission’s forthcoming EU strategy on sustainable textiles, which aims to create a better business and regulatory environment for sustainable and circular textiles within the Union. MSMEs in the textiles ecosystem find it hard to develop intellectual property strategies to protect their research & development investments and raise growth capital. The establishment of an Union wide GI protection for CI products should therefore help MSMEs in this context.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Article 118(1) on intellectual property and Article 207(2) of the TFEU on the common commercial policy. It aims to create for craft and industrial products a unitary European intellectual property right to provide the same protection across the Union, and set up centralised Union-wide authorisation, coordination and supervision arrangements. In addition, the proposal aims to establish a link between an EU protection system for craft and industrial products and the Lisbon system, giving effect to an international agreement administered by WIPO.
• Subsidiarity (for non-exclusive competence)
Apart from its objective to meet the obligation under the EU accession to the Geneva Act of the Lisbon Agreement, which falls under the common commercial policy and is an exclusive competence of the Union, this proposal aims to create a well-functioning internal market for CI geographically-linked products. In this regard, it provides for a common legal framework for CI GIs, whose protection falls under the shared competence of the EU and its Member States. Member States alone cannot achieve this objective due to a patchwork of divergent rules, which have been developed at national level and are not mutually recognised. Addressing this issues at national level will only result in legal uncertainty for producers seeking protection, prevent market transparency for consumers, affect intra-Union trade, and pave the way for uneven competition in marketing GI protected CI products. A solid European legal framework could provide equal protection conditions in all Member States, therefore creating legal certainty, incentives for investment in greater market opportunities for geographically-rooted CI products. This objective can therefore be better achieved at Union level.
• Proportionality
The proposal has been designed to minimise the administrative burden and compliance costs for producers and public authorities, while ensuring equal treatment across the Union. As highlighted in the impact assessment report, the scope of the chosen policy option which is the adoption of a self-standing EU Regulation establishing a specific system based on an EU title to protect GIs for CI products, does not go beyond what is necessary to achieve the identified objectives. It is limited to the aspects that Member States cannot achieve satisfactory on their own and where the Union can act more effectively, efficient and generate greater added value.
• Choice of the instrument
The instrument choice is a self-standing EU regulation establishing a specific system based on an EU title to protect GIs for CI products. This choice favours a legal regime that is simple and coherent with the objective to enable the effective fulfilment of international obligations by establishing a system at Union level that allows for the protection of CI GIs of third country members of the Geneva Act within the Union and the protection of EU CI GIs of the Lisbon system’ contracting states.
Alternative regulatory methods such as extending the existing protection schemes for agricultural products to CI products and reforming the trade mark system are not considered appropriate.
First, agricultural and foodstuff products have specific characteristics governed by harmonised EU health and safety rules under the common agricultural policy and common fisheries policy that are not necessarily relevant for craft and industrial products.
Second, incorporation into existing agricultural products scheme bears the risk for CI products and their producers, to be marginalised among schemes focused on agricultural products and producers under the common agricultural policy. This would prevent the possibility of introducing a flexible and cost-effective GI regime tailored-made for CI products and their producers.
Furthermore, given that protected trade marks can become generic and be revoked, a reform of the trade mark rules risks failing to meet the international requirements under the Geneva Act. Modifying these trade mark properties to protect GIs would in turn affect the overall coherence of the trade mark system. Moreover, two different protection systems would be in place: one for agricultural GIs (specific protection) and the other (a trade mark based) for CI GIs. This could create confusion and appear inconsistent at international level, particularly taking into account the EU’s traditional role in supporting GIs in WIPO and its stance on GIs in the context of bilateral trade negotiations with third countries.
Other instruments like the adoption of recommendations or an EU Directive aiming at the approximation of national laws would not satisfactorily address the fragmented national regulatory framework for CI GIs and the necessity of having a single EU title due to international obligations.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
No European Union legislation has until now focused on GIs protection for CI products. However, this proposal is linked to the ongoing reform of the system of GIs for agricultural products and builds on the results of the evaluation report of the EU GIs protection schemes for agricultural products. It also aims at achieving the greatest possible synergies with the ongoing reform of the existing GI schemes which is looking at ways to strengthen, modernise, streamline and better enforce GI rights for agricultural products, foodstuffs, wines and spirits.
• Stakeholder consultations
- The Commission has put in place a broad consultation strategy gathering the views of all relevant stakeholders. Consultations started in 2013 and have intensified in 2020 and 2021.
- From a geographical point of view, the consultation strategy covered the EU-28 and after BREXIT, the EU-27.
The consultation included a series of broad and targeted consultations, in particular:
- Public consultations: in the context of an external study run in 2013, a survey was conducted on stakeholders' needs and expectations for a possible legal protection of indications of authentic geographically-rooted products at the Union level. Results of the public consultation organised in 2014 were presented at a public conference on 19 January 2015 and published in June 2015. During the Roadmap consultation (30 November 2020 – 18 January 2021), stakeholders provided feedback about the Commission’s plan to assess the impact of an EU-wide initiative on GIs for CI products. The public consultation on 'EU-wide protection of geographical indications for non-agricultural products’ was open for 12 weeks between 29 April 2021 and 22 July 2021.
- Face-to-face interviews: in the context of the study on controlling and enforcement rules for GIs for non-agricultural products face-to-face interviews were carried out with selected stakeholders.
- Workshops: in October 2016, a workshop on the 'contribution of non-agricultural geographically rooted products to regional inclusive economic development’" was organised in the context of the European week of regions and cities 2016. On 18 November 2019, the results of the 'Study on economic aspects of geographical indication protection for non-agricultural products at EU level’ were presented and discussed in a workshop. On 13 July 2021, the preliminary findings of the 'Study on control and enforcement rules for geographical indication (GI) protection for non-agricultural products in the EU’ were also presented and discussed in a workshop.
- Targeted meetings with Member States’ representatives (‘GIPP expert group): in April 2021 and January 2022, followed by a targeted written consultation with intellectual property offices of Member States in June 2021 based on two targeted questionnaires.
Overall, the responses have shown that producers of CI GIs, the European Parliament, the European Committee of the Regions, the European Economic and Social Committee, nine Member States and academia strongly support the establishment of a specific GI scheme. These responses form the basis for the Commission’s proposal as submitted. Four Member States support the baseline option of maintaining the status quo and consider that trade mark protection is sufficient. The impact assessment, however, points to both the shortcomings of the existing trade mark protection alternatives to sufficiently protect CI product names and the issues implied by taking the trade mark reform route, including the lack of coherence with specific GI system for agricultural products.
On the more detailed feedback received from the 2021 Public consultation, the most preferred policy option (rated 5) in the opinion of most respondents is a specific system establishing an EU title to protect GIs for CI products. The least preferred policy option (rated 1) in the opinion of most respondents is the baseline scenario of no action taken at Union level. More than 80% of respondents on this option are decisively against maintaining the current situation.
• Collection and use of expertise
The Commission has relied on two major sources of external expertise:
Contents
- Study on GI protection for non-agricultural products in the Internal Market (Insight Consulting/REDD/OriGIn, 2013)
- Study on the economic aspects of GI protection at EU level for non-agricultural products (VVA/ECORYS/ConPolicy, 2019)
- Study on control and enforcement rules for GI protection for non-agricultural products in the EU (VVA/AND International, 2021)
2. Technical cooperation with EUIPO focusing on various process models to enable a sound assessment of sub-options on the EU entity in charge of registering CI GIs and of handling international applications under the Geneva Act of the Lisbon Agreement, as well as concerning the role of national authorities in the registration procedure. The outcome of such cooperation, based on the EUIPO’s contribution, is in Annex 9 of the impact assessment.
• Impact assessment
The following policy options were examined in the impact assessment:
- Policy option 1 – Extending the GI protection system for agricultural products to GIs for CI products: under this option, a GI protection system for CI products would be integrated into the existing GI protection schemes that cover agricultural products and foodstuffs. Under the ongoing reform of the system of GIs for agricultural products, Member States should continue to apply a preliminary examination procedure at the national level. At the Union level, the proposal for a revision of the GI system for agricultural products should give powers to the Commission to outsource the examination of applications and oppositions to an agency (most likely EUIPO). Under this option, the ongoing proposal for a revision in the agri-food sector would harmonise the current monitoring and enforcement system and extend it to cover also CI GIs.
- Policy option 2 – Self-standing EU regulation creating specific GI protection: this option would consist of adopting an EU regulation to establish a specific GI protection scheme for CI products. It would build on the existing GI regime for agricultural products but adapt it further to CI products. CI GIs would be protected by an EU title in all Member States. Under this policy option 2, the following sub-options would be possible:
- 2.1. Territorial link:
- 2.1.A. Protected designations of origins (PDO): under PDO protection, the quality or characteristics of a product are essentially or exclusively linked to the particular geographical environment of the place of origin; and all stages of production, processing or preparation must take place in the defined geographical area.
- 2.1.B. Protected geographical indications (PGI): under PGI protection, a particular quality, reputation or other characteristic of a product is essentially attributable to its geographical origin; at least one of the stages of production, processing or preparation takes place in the defined geographical area.
- 2.2. Involvement of national authorities in the registration procedure:
- 2.2.A. Two-stage system: the first stage would be at the level of Member States, where national or local authorities would play a first examination role over local producers’ agreed product specifications and GI applications. The second stage would be at Union level, with an EU entity taking a decision on registration, where no fees would be charged.
- 2.2.B. One-stage system: National authorities would not participate in the examination and registration, and local producers would go directly to the EU level to have their GIs registered.
- 2.3. EU entity in charge of registration at Union level and at international level:
- 2.3.A. The Commission would be in charge of the Union level stage of registration and act also as the competent authority under the Geneva Act of WIPO’s Lisbon Agreement.
- 2.3.B. The specialised intellectual property agency, EUIPO would be in charge of the Union level stage registration and would also act as competent authority under the Geneva Act.
- 2.4. Control and enforcement:
- 2.4.A. Replicating the control and enforcement model of the GI agricultural schemes.
- 2.4.B. Streamlining control through a robust enforcement model: this sub-option would introduce self-certification; random inspections by national authorities (or delegated certification bodies), coupled with a deterrent system of fines; streamline reporting obligations by national authorities; and introduce the enforcement scheme under the currently revised agricultural GI system, with a domain names’ alert system to fight online GI abuses.
- 2.5 Co-existence of EU and national titles and regimes:
- 2.5.A. CI GIs would be protected by an EU title that replaces the existing national GI regimes and absorbs national GI titles.
- 2.5.B. Introducing an EU GI title for CI products while keeping a parallel system for national GI applications.
- Policy option 3 – Trade mark reform: this option would consist of reforming the EU trade mark system, in particular the EU trade mark Regulation (EUTMR), so that producers of CI products could apply to register at Union level a name guaranteeing a specific product quality linked to a geographical region. This option could be based on the reform of either the EU collective mark or the EU certification mark. On the EU certification, this would require removing the current ban on certifying geographical origin. For the EU collective mark, this would require introducing the function of certifying the quality-geographical origin link to the collective mark. In addition, both the EU collective mark and the EU certification mark would have to be adapted to comply the scope of protection under the Geneva Act.
- Baseline – no change: keeping the fragmented regulatory framework in the Union and the lack of recognised protection of CI GI products at international level.
- Recommendation: this option would consist of adopting a recommendation at Union level, encouraging Member States to establish national protection systems to certify the link between specific product qualities and the origin of CI products.
- Approximation of national laws: this option would consist of adopting an EU directive in order to approximate national laws on the protection of GIs for CI products. Through a directive, the EU would create obligations to achieve specific objectives to protect GIs. For example on the term and scope of protection, the territorial link, and procedural aspects. Producers could obtain national GI titles registered at national level. No EU GI title would be created.
The preferred policy option is option 2: self-standing EU Regulation. The overall preferred option package is a combination of sub-options 2.1.B (Protected geographical indications (PGI)), 2.2.A (two-stage system), 2.3.B (EUIPO responsible for registration at Union and international level), 2.4.B (streamlining control through robust enforcement) and 2.5.A (EU scheme replaces national GI regimes and titles).
When comparing options 1, 2 and 3, they all provide a single registration point at the Union level and uniform protection that will enable producers to protect and signal quality of their products due to geographical origin in the internal market.
However, by developing product specifications, policy option 1 (PO1) and policy option 2 (PO2) would rank particularly high in helping artisans and producers to work together in niche markets, enabling cooperation, and promoting and protecting traditional know-how, at Union level, in compliance with EU competition rules. These two options also benefit not only producers, but also related sectors, such as tourism, as GIs raise the visibility of the product and the region. With tourism being a sector particularly hard-hit by the COVID-19 pandemic, PO1 and PO2 can prove to be a major step in putting these regions, often underdeveloped, back on track towards economic recovery and help improve attractiveness of EU regions for tourism. PO1 and PO2 can therefore play a vital role in enabling recovery in the EU’s hard-hit regions.
PO1 and 2 comply with the Geneva Act of the Lisbon Agreement, whereas PO3 ranks lower also in relation to the EU Trade Mark policy. Moreover, PO3 also ranks low on coherence with the EU international GI protection policy.
On the impact on competition, the initiative is unlikely to have any negative effects.
- GIs certify the quality due to geographical origin. Furthermore, there are very few eligible CI GI products (between 300 and 800 in the Union), with close non-GI covered functional substitutes being abundant. Competing producers are able to enter and produce GI covered substitutes, if only they fulfil the relevant criteria. For these reasons, market power is very unlikely to be created or enhanced by the proposal.
- CI GIs are credence upmarket products. They are based on tradition, convey information about their geographical origin, and address specific demand of consumers who attach value to such specific qualities (e.g., manual manufacturing techniques). Even if market rivalry would be muted if a previously non-GI product turns GI, the resulting quality signalling effects of the CI GI title would result in a possibly increase of consumers’ willingness to pay. Therefore consumer surplus is unlikely to be affected.
On the impact on innovation, CI GIs are not rooted in ‘hard core’ product or process innovation such as patents. In that sense, following Oslo Innovation Manual they constitute marketing and/or organisational innovation. The specific system would, at the margin, incentivise investment in craftsmanship and could improve excellence in the production of niche products. Also, to the extent that the CI GI system would allow for higher wages and job creation, younger workers would remain in their regions rather than be drawn to urban areas.
On the impact on the environment, the scale of production generated by the handful of CI GI products is likely de minims or limited. Also, CI GIs generate more durable good compared to cheaper non-CI GI mass production alternatives and is more likely to be produced in the Union where environmental standards are more stringent. Consumers who express a preference for such credence goods are likely to be the environmentally aware and therefore expect CI GI producers to join them in meaningful applying environmental values. For all those reasons, the environmental effect – however small – is likely to be positive.
On the costs of the preferred option, an EU entity will have to manage the GI registration system for CI products and obtain the operational experience and specialised skills that it is currently missing in the field. Member States will also have to create a framework. Even if experience shows that in agriculture this burden can be light, an entirely private-public system of control and enforcement is by definition less costly for public authorities. The possibility for producers to self-declare compliance over time, for example, once the GI title is granted can also lower the costs.
An estimation of annual costs in euro for one GI is shown below:
| Action | Producers (group) | Authorities | Total | |
| National | EU | |||
| Annual Cost of one GI (EUR) | ||||
| Registration* | 15 000 | 7 500 | 17 000 | 39 500 |
| Verification/control* | 5 700 | 100 | 0 | 5 800 |
| Enforcement & management** | 3 000 | 3 900 | 0 | 6 900 |
| Total | 23 700 | 11 500 | 17 000 | 52 200 |
* one-off cost
** recurrent cost
Source: Own calculations based on VVA & AND International (2021).
• Regulatory fitness and simplification
The proposal will be mainly used by micro, small or medium-sized enterprises (MSMEs) and it is designed taking into account the specific needs and challenges MSMEs face. Therefore, the proposal envisages moderate registration costs for GIs. Member States will be allowed to charge fees for the registration but they have to be proportionate. The level of the fees has to be set taking into account the situation of specific businesses such as MSMEs, for example in the form of lower fees. At Union level, in the second phase of the registration procedure, the EUIPO will not charge fees to register GIs, unless the ‘direct registration’ procedure provided for in Article 15. This will allow MSMEs to have access to this intellectual property title at moderate cost.
MSMEs consider legal complexity as a major obstacle for their businesses. Therefore, the proposal creates simple procedures to register and manage new GIs, not requiring at any stage of the procedure the involvement of legal representatives and keeps the administrative burden for MSMEs to the minimum.
The proposal provides for a fully digitalised EU application and registration procedure, which is managed by EUIPO. This should also reduce the administrative burden. The e-filing system should also apply to direct registrations in the exceptional cases where eligible Member States opt-out from the obligation to designate a national authority to manage the GI applications for CI products at national level.
The new domain name information and alert system for CI GIs to be established by EUIPO must provide applicants with an additional digital tool as part of the application process to better protect and enforce their GIs rights.
In view of simplification, a publicly accessible electronic register of GIs (Union register of geographical indications for craft and industrial products) should be maintained to provide direct and fast access to information on all registered GIs. Any person must be able to easily download an official extract from the Union register of geographical indications for craft and industrial products that provides proof of registration of the GI, and relevant data including the date of application of the GI or other priority date. This official extract might be used as an authentic certificate in legal proceedings, in a court of law, or in a court of arbitration or a similar body
• Fundamental rights
The proposal will improve the intellectual property protection in the Union for geographically linked CI products. It should therefore have a positive impact on the fundamental right to intellectual property according to Article 17(2) of the Charter on the fundamental rights in the EU (the ‘Charter’). In certain instances, and in line with the international obligations resulting from the Geneva Act of the Lisbon Agreement on appellations of origin and geographical indications, the protection of geographical indications will need to be balanced with the right in trade marks, in particular with regard to renowned trade marks (see Article 39 of this regulation) or prior trade marks registered in good faith (see Article 42 of this regulation).
Also, it should improve the possibilities for producers of CI products to protect their intellectual property in the Union, in particular in cross-border contexts. Therefore, the proposal should also have a positive impact on the right to remedy in line with Article 47 of the Charter.
4. BUDGETARY IMPLICATIONS
The proposal has no implications on the EU budget. The EUIPO, which is entirely self-financing, will manage and fund the registration process at the EU and international level out of its budget (including IT system, setting up and managing the Union register of geographical indications for craft and industrial products, the EU alert system against the abusive use of CI GI in the internet, etc.). On national administrations, 16 Member States (Belgium, Bulgaria, Croatia, Czechia, Estonia, France, Germany, Hungary, Italy, Latvia, Poland, Portugal, Romania, Spain, Slovakia and Slovenia) where national CI GI schemes operate already should see no additional costs in terms of administration. The remaining Member States should commit resources for the initial verification process. All Member State will have to commit resources to enforcement of CI GI.
Based on the analysis by external experts (studies) the registration cost at national level are estimated on average at around EUR 7 500 per GI. The cost of random controls for Member States are estimated at around EUR 100 per GI. And the cost of enforcement at around EUR 3 900.
However, due to low number of potential EU CI GI candidates (expected around 300 registrations in 10 years) both costs at national and EUIPO level do not seem substantial. They are estimated at around EUR 860,000 annually for the EU as a whole (under assumption that 30 CI GI are registered annually). Enforcement of CI GI of third countries that should be protected in the Union is going to add to the cost. The number of these registrations is uncertain. At the moment the number of national CI GIs registered in China and India alone is estimated at between 400 and 800 altogether.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Providing for a robust monitoring and evaluation mechanism is crucial to ensure that the proposal will be effective in achieving its specific objectives. After the entry into force of the Regulation, the Commission will assess whether the specific objectives of the Regulation are met. The Commission has established a list of monitoring indicators in its impact assessment, against which the effect of the Regulation will be assessed. To inform this assessment, producers and public authorities will be required to inform the Commission.
The Commission will publish a report evaluating and reviewing the Regulation no less than five years following the date of application. The evaluation will be conducted according to the Commission’s Better Regulation guidelines.
In addition, Member States and/or their national authorities will be required to report every four years to the Commission on the strategy and results of all the GI controls. The controls will be carried out to verify compliance with the legal requirements related to the protection scheme established by this Regulation and on the enforcement of GIs in the market place, including online.
• Detailed explanation of the specific provisions of the proposal
The proposal consists of a set of rules designed to put in place a self-standing, coherent system for GIs for CI products. Producers are empowered to protect their GI products at Union level through the establishment of a uniform EU specific GI scheme. In addition, the proposal links the new EU protection scheme to the Lisbon system. The registration procedures provided by the new EU protection scheme are administered at Union level by EUIPO and at national level by Member States’ public authorities.
Title 1: General provisions
General provisions define the objectives as well as the scope of the proposal. Also, the general provisions contain a list of definitions (Article 3). They furthermore provide for rules governing the protection of personal data processed in the course of the procedures for registration, approval of amendments, cancellation, opposition, granting of transitional period and control.
Title 2: Registration of geographical indications
The chapter on registration provides for the uniform rules for registration, both at national and Union’s level including the opposition procedure; defines the applicant and lists requirements for the applicant; specifies the content of application documents, and defines the role of the register. It lays down the transitional protection and transitional measures. The title also provides the possibility to consult the Advisory Board, which is composed of experts appointed by Member States and the Commission. The Advisory Board, when necessary, will examine and provide opinions, at the request of the Office or the Commission, on specific GI applications and technical problems relating to the application of this Regulation. The Advisory Board must be consulted with regards to applications submitted through the direction procedure referred to in Article 15. Title 2 also includes provisions on the amendments to the product specification and on the cancellation of the registered GIs as well as on the appeals procedure. It also establishes a domain name information and alert system and contains provisions on administrative fees.
The proposal establishes an exceptional scheme for direct procedures before the Office for applicants from a Member State that meets certain conditions on the date of adoption of this Regulation, and do not therefore designate a national authority for the management of the procedures for registration, amendments to the product specification and cancellation of the registration in respect of GIs. Member States that opt for this exceptional registration scheme must designate a contact point for the registration procedure under EUIPO, and a competent authority for the controls and enforcement and to take the necessary actions to enforce the rights in this Regulation.
Member States may charge a fee to cover their costs of managing the GI system for CI products. However, the Office will not charge a fee, except for the direct application procedure set out in Article 15. EU fees must be set out in an implementing act (Article 291 of the TFEU) in line with Regulation (EU) No 182/2011 of the European Parliament and of the Council within six months after the entry into force of this Regulation.
This Title also establishes a prerogative for the Commission to take over the decision-making power from the Office that may affect the Union’s trade and external affairs policy, or the public interest. This prerogative was designed to be used only when policy considerations may override technical aspects of intellectual property, also considering that geographical indications play an important role in the Union’s trade and external policy and are collective rights performing also public functions.
Title 3: Protection of geographical indications
The level of protection of CI GIs is set out in Title 3. Title 3 also sets out rules for GIs when used as parts or components in manufactured products, clarifies generic terms and registration of homonymous GIs, as well as the relationship with trade marks. It provides rules for producer groups. The relationship with the use of protected terms in internet domain names is defined. This title includes the rules for the use of Union symbols, indications and abbreviations on the labelling and advertising material of the product concerned.
Title 4: Controls and enforcement
The rules on the controls and enforcement are set out in Title 4, including both verification that a product designated by a GI has been produced in conformity with the corresponding product specification, and monitoring of the use of GIs in the marketplace. For both verification and monitoring, this Title provides for two procedures regarding the control of producers. While Member States are required to designate the competent authority responsible for the official controls to verify compliance with this Regulation, they are free to introduce a third-party certification procedure operated by competent authorities or delegated product certification bodies, or a procedure based on the producer’s self-declaration. Besides producer controls, the title also sets out rules for Member States on how to prevent or stop any other misuse of GIs in their territory. In addition, it aims to prevent the misuse of GIs on online platforms2 in line with Regulation (EU) No xxxx/2022. The title also governs mutual assistance between Member States’ authorities. It requires that enforcement authorities should provide proof of certification on a producer’s request.
Title 5: Geographical indications entered in the International Register and amendments to other acts
Title 5 provides for the necessary amendments to Council Decision (EU) 2019/1754 and Regulation (EU) 2019/1753 of the European Parliament and of the Council, the EU legislation adopted following the EU’s accession to the Geneva Act on 26 November 2019.
The amendments are needed to adjust existing rules to the changed reality of a new EU CI GI scheme emerging after such rules were created. For example, there is currently no provision to clarify that unlike in the case of agricultural GIs, it is the EUIPO to play the role of competent authority under the Lisbon system. Similarly, provisions are needed to ensure that international applications relating to CI products can be filed and processed by the EU’s competent authority.
Further amendments are introduced on the Trade Mark Regulation (EU) 2017/1001 to add in the catalogue of the Office’s tasks contained in Article 151, the tasks conferred to the Office for the administration and promotion of CI geographical indications. In addition, there is another amendment to the Trade Mark Regulation (EU) 2017/1001 to establish a domain name information and alert system for EU trade marks replicating the alert system established under this Regulation.
Title 6: Technical assistance
Title 6 sets out the Commission’s empowerment to adopt delegated acts in line with Article 290 of the of the TFEU to entrust EUIPO with the examination and other administrative tasks concerning third country geographical indications, other than geographical indications under the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, proposed for protection pursuant to international negotiations or international agreements. By this Title the Commission ensures that administrative tasks related to geographical indications in the context of international negotiations and international agreements which are devoid of any trade or external policy considerations may be outsourced to the Office.
Title 7: Supplementary provisions
Title 7 sets out the Commission’s empowerment to adopt delegated acts in line with Article 290 of the TFEU to supplement or amend the Regulation as regards detailed rules on procedures and form of the cancellation process and the presentation of the requests referred to in Article 29. This includes the requirements or listing additional items of the accompanying documentation referred to in Article 9, defining procedures and conditions applicable to the preparation and submission of Union applications for registration referred to in Article 17, rules on entrusting EUIPO to operate the Union register of geographical indications for craft and industrial products referred to in Article 26, the formal content of the notice of appeal, the procedure for the filing and the examination of an appeal as well as the formal content and the form of the Boards of Appeal’s decisions referred to in Article 30, the information and requirements identified in the self-declaration referred to in Article 49 and the corresponding Annex 1 and technical assistance of the Office referred to in Article 62. It also identifies the implementing acts that the Commission must undertake to ensure uniform conditions to implement this Regulation.
Title 8: Transitional and final provisions
Title 8 sets out that transitional national geographical indications protection for craft and industrial products should cease to exist by one year after the date of entry into force of this Regulation. Member States should inform the Commission and the Office which of their legally protected or which of their names established by usage they wish to register and protect pursuant to this Regulation.