Tuesday, 12 January 2016

Third Country Producers Exempt from the Compulsory Use PDO and PGI Symbols on Product Labels

From the 4th January 2016 the use of PDO and PGI logos on the labelling of agricultural products bearing names protected as Geographical Indications under the EU legislation has become compulsory, as an effect of Article 12 Regulation (EU) 1151/2012 coming into force. According to section 6 of the same Article 12, this provision does not apply to GI products from Third Countries (meaning: non-EU Member States) whose names are included in the EU register as a PDO or PGI.

Since 1992 (Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [1992] OJ L 208/1), the EU has introduced certifications aimed at guaranteeing the authenticity of methods of production of some agricultural products, mainly intended for human consumption, that have a link with a determined geographic area. Tools like PDO (Protected denomination of Origin) and PGI (Protected Geographical Indication) have been established under EU legislation; their difference is the closer or looser link to the geographic area, required to obtain the award.


Right holders can market their products using the registered names alongside the indications “Protected denomination of Origin” or “Protected Geographical Indication” or the corresponding abbreviations “PDO” or “PGI”. They can also use the associated graphic symbols, or logos, which were created at communitary level in 1994 and 1994, with the purpose to raise consumer awareness regarding the “European agricultural quality schemes”, and to make it difficult to counterfeit authentic products. Visual attempts to further attract the attention of the consumers, with the change of the colour of the two logos, were subsequently operated by Commission Regulation (EC) No 628/2008 (amending Regulation (EC) No 1898/2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [2008] OJ L 173/3).

The original 1992 Regulation has been replaced by a new Regulation in 2006 (see below); this has been, in turn, repealed by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (Official Journal of the European Union L 343 of 14 December 2012. Similar, yet separate, schemes are established for wines, spirits and aromatised drinks), currently in force since 1st January 2013.
However, according to Article 59 Regulation 1151, the provisions under Article 12 of the same Regulation only came into force on 4th January 2016. Under section 3 of Article 12, the use of PDO and PGI logos on the labelling of agricultural products bearing names protected as Geographical Indications under the EU legislation has become compulsory. In addition, the registered name of the product should appear in the same field of vision.

An important waiver to this provision is laid down by Article 12, section 6, in the case of products originating in third countries marketed under a name entered in the register. To understand this waiver, the certification process must be briefly recalled. This has been laid down by the original Council Regulation (EEC) No 2081/92, and stayed substantially untouched until 2005.
In that year, a WTO Panel (25 April 2005 - WTO WT/DS 124/23 and WT/DS 290/21) ruled on a contention raised by the US and Australia on a matter of national treatment with regard to Regulation 2081; the panel found that said Regulation required that a registration of a GI from a country outside the European Community was contingent upon the Government of that country adopting a system of GI protection equivalent to the EC’s sui generis system and offering reciprocal protection to EC GIs; as such, the registration process for third country producers was not compliant with TRIPs obligations, because it restricted their access to the EC system. As a result, the EC had to replace Regulation 2081 with Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [2006] (Official Journal of the European Union L 93/12).

Image result for cafe de colombiaAfter the opening of the system, extra-EU products have been registered as PDOs or PGIs: in October 2007, after more than two years of evaluation by the European Commission in Brussels, Café de Colombia became the first agricultural food product from a country that does not belong to the European Union to receive PGI recognition in Europe.

With regard to the aspect analysed in this post, Article 8 of Regulation 510/06 already laid down a waiver for Third Country producers as to the compulsory use of the indication “PDO”, “PGI” in alternative to (or in conjunction with) the use of the European logos. The choice of the application of the logos on the labels was left to the producers (rectius: right holders); under the new Regulation 1151, they are still dispensed from such apposition. This is expressly laid down by Article 12, section 6, derogating from the provision in section 3 analysed above; the latter is therefore applicable to the European producers only.

This provision seems to encourage registrations from producers from Third Countries without burdening them with additional obligations; as such, it could be interpreted as a way of promoting the EU sui generis GI system, and could therefore be framed within a wider commercial strategy by the EU. Those operators are let free not to print the PDO or PGI logo on the label; nevertheless, there are advantages in actually using the EU symbols, not at least for marketing purposes: European consumers, or at least those leaving in the Member States where the EU origin schemes are better known, are willing to pay a premium price, when they associate implicit qualities in the origin of a product. This is why some of the (not numerous) non-EU products recognised in the EU register bear the PDO or PGI logo well visible on the packaging.

Finally, according to Article 12 section 4, which is applicable to Third Country products as well, “In addition, the following may also appear on the labelling: depictions of the geographical area of origin, (…) and text, graphics or symbols referring to the Member State and/or region in which that geographical area of origin is located.” This is a reference to all those elements, such as flags or contours of a Country which could be legitimately used if genuinely linked to a geographical name, whether recognised as a GI or not; but if their use is misleading to the consumers, this could amount to an act of unfair competition, or as a prohibited “evocation” if falsely referred to a name protected under Regulation 1151.

By Nicola Coppola – Bournemouth University

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