5 Normative Community regulation of industrial property rights
5.4 Geographical indications
The regulation of geographical indications shows a very diverse picture, as there are different regimes in place for the individual types of products,365 and the regulation of the individual product types is realized on different levels of legis-lation, according to the explanation below. Geographical indication is a collec-tive term,366 which creates the protection of the information related to the origin of the goods in question, relevant for the consumers, and thus, in general it
car-363 Directive (EC) 98/71 of the European Parliament and of the Council on the legal protection of de-signs, OJ L 289, 28.10.1998.
364 Council regulation (EC) 6/2002 on Community designs, OJ L 3/1.5.1.2002.
365 According to the explanation below, there are different rules for agricultural products and foodstuffs, viticultural and wine products, spirit drinks and industrial products.
366 The sources of international law, the law of the EU, as well as the national laws define the category of geographical indications in several different ways. In the TRIPS Agreement, the expression ‘geo-graphical indications’ is used, while in the EU and Hungarian laws, ‘protected designations of ori-gin’, i.e. PDO’s and ‘protected geographical indications’, i.e. PGI’s are mentioned, and in the Lisbon Agreement administered by WIPO, you will find the term ‘appellation of origin’.
ries value. A geographical indication has no specific right owner: it can be used by anyone who fulfills specific preconditions (e.g. one who manufactures their products in a specific geographical area). A simple geographical indication refers to a specific area where the goods were produced, irrespective of whether the location of production affects the quality of the goods (e.g. ‘Made in Hun-gary’, ‘Szekszárd salami’). A designation of origin also refers to a specifically definable geographical area, the location, natural characteristics of which, or the special knowledge of the inhabitants lend extra quality to the product in question (e.g. Tokaj wine, Parma ham).
The agriculture of the European Union does not favor mass production, how-ever, European producers manufacture a very high number of goods whose qual-ity is closely related to the location of production and the century-old traditions that have evolved there and due to this special quality, they can be sold at a higher price than similar goods that do not reach this quality and are manufac-tured outside this gepgraphical area. Because of this and in order to establish the unitary protection and internal market of the goods supplied with geographical indications, the EU has been continuously developing its regulation on geo-graphical indications since the 1990s.
In the European Union, there is exclusive, EU-level regulation in place for the geographical indications of foodstuff and agricultural products, as well as viti-cultural and wine products. This means that the designations of origin of these products can only be granted protection on the EU level, so the national level regulation of protecting these products should be terminated. According to regu-lation (EU) No. 1151/2012 on quality schemes for agricultural products and foodstuff, the name Protected Designation of Origin (short: PDO) indicates a product, it is the name used for describing an agricultural product or foodstuff of a certain region, a specific geographical location, or in an exceptional case, a country, the quality or characteristics of which are fundamentally or exclusively due to the geographical environment in question, as well as the related natural and human factors, and whose production, processing and manufacturing take place in a specific geographical area. According to the regulation, in the case of Protected Geographical Indication (short: PGI), it is sufficient if the special quality, reputation or other characteristic feature of a product manufactured in a certain place are attributable to this geographical origin and at least one phase of manufacturing takes place in this strictly defined geographical area. Protected Geographical Indications, i.e. PGI’s from Hungary include e.g. the (winter) salami of Szeged, the Makó onions, or the Hajdúság region’s horse radish. Pro-tected geographical indications from Hungary include e.g. the apricots of Gönc, the sausages of Gyula and Csaba, or the roses of Szőreg.
In this regulation, a third category is also defined: this is the circle of Tradi-tional Speciality Guaranteed (short: TSG) products. In order for an agricultural
product or foodstuff to be acknowledged as a Traditional Specialty Guaranteed product, it has to be prepared from traditional raw materials or ingredients, it has to have a traditional composition, or its method of production and/or processing has to be of the traditional type. Based on an application from Hungary, ‘tepertős pogácsa’ (scones with cracklings) was registered as a Traditional Specialty Gua-ranteed product and the registration procedure concerning ‘rögös túró’ (chunky cottage cheese) is currently in progress.
The protection can be obtained in a two-step procedure in the case of all three types of protection. The groups that work with the product to be registered sub-mit a registry application to the member state, to which application they have to attach a detailed product description. Then the member state reviews the appli-cation in order to check whether it is justified and is in line with the criteria for the form of protection in question, then the application is published, against which an objection can be submitted. If after the review of the potential objec-tions, the member state deems the application as one that is in compliance with the statutory requirements, the member state will forward the application to the Commission. In the second phase of the procedure, the Commission, by publish-ing the application in the Official Journal of the European Union, conducts the EU-level objection procedure, during which the member states or other persons get the chance to contribute their opinions against the registration. The Protected Geographical Indications can be searched for on the homepage of the European Commission, i.e. in the DOOR database when they refer to agricultural prod-ucts, while in the E-Bacchus database when they refer to viticultural or wine products.
Furthermore, the regulation introduces the concept of optional quality terms367 as a new institution. The purpose of establishing this concept is to make it easy for the producers of agricultural products that possess value adding character-istics to promote these charactercharacter-istics in the internal market. According to the regulation, optional quality terms should satisfy the following criteria:
a) the term relates to a characteristic of one or more categories of products, or to a farming or processing attribute which applies in specific areas;
b) the use of the term adds value to the product as compared to products of a similar type; and
c) the term has a European dimension.
As the first optional quality term, the regulation introduces the term ‘mountain product’, and gives a detailed definition of the criteria of using it.
Furthermore, in relation to certain products prepared from grapes (basically, certain wines and champagnes), the concept of ‘traditional terms’368 was
intro-367 Optional Quality Terms – shortly OQT.
368 Traditional terms.
duced. According to the effective rules, traditional terms mean an expression used traditionally in the member states with regard to the products listed in de-tail in the respective regulation,369 which indicates:
a) that a certain product is supplied with a designation of origin or geographi-cal indication under Community or national law; or
b) the production or ripening procedure, the quality, color, the nature of the place of origin, or an event related to the history of the product supplied with a designation of origin or geographical indication.
According to the regulation, a protected traditional term can exclusively be used in relation to a product manufactured according to the above definition.
Traditional terms originating from Hungary include, among others, ‘bikavér’
(‘bull’s blood’, i.e. the most noted of wines from the Eger region), ‘aszú’ and
‘szamorodni’ (traditional Tokaj-Hegyalja speciality wines).
Regulation (EC) No. 110/2008 on the geographical indication protection of spirit drinks370 stipulates the rules on the indication of spirit drinks (hard liquors). According to the regulation, a geographical indication is a designation which identifies the spirit drink as one that originates from the territory of a cer-tain country, or a region or place of such territory if the quality, reputation or any other characteristic feature of the alcoholic beverage is basically attributable to the geographical origin in question. According to Annex III of the regulation, geographical indications originating from Hungary include ‘Pálinka’ (brandy),
‘Törkölypálinka’ (grape marc brandy), ‘Szatmári Szilvapálinka’ (the plum bran-dy of Szatmár), ‘Kecskeméti Barackpálinka’ (the apricot branbran-dy of Kecskemét),
‘Békési Szilvapálinka’ (the plum brandy of Békés), ‘Szabolcsi Almapálinka’ (the apple brandy of Szabolcs), as well as ‘Gönci Barackpálinka’ (the apricot brandy of Gönc).
On the European level, the geographical indication protection of spirit drinks works somewhat differently than the origin protection of agricultural products and wines, the EU protection system functions in parallel to, and is built on the national protection system, and a registry application can only be submitted to the Commission if the geographical indication in question is under national pro-tection.
As regards non-agricultural products (e.g. industrial or handicraft products), currently there is no EU-level protection system in place, national protection is
369 Council regulation (EC) 1234/2007 establishing a common organization of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), OJ L 299/1, 16.11.2007.
370 Regulation (EC) 110/2008 of the European Parliament and of the Council on the definition, descrip-tion, presentadescrip-tion, labelling and the protection of geographical indications of spirit drinks and re-pealing Council Regulation (EEC) 1576/89, OJ L 39/16, 13.2.2008.
available for them in Hungary but the EU is looking into the possibility of the introduction of such protection.371
Besides EU-level and national level protection, the international protection of the designations of origin can also be applied for on the basis of the Lisbon Agreement in the context of WIPO, with regard to the countries that participate in the treaty, or outside the international system, the individual countries can place certain indications under protection through bilateral international agree-ments as well (e.g. the bilateral agreement between the Hungarian People’s Re-public and the Swiss Confederation was announced by decree law No. 22 of 1981, under which the Emmental cheese is protected, among others).
The structure of, and correlations between the individual protection systems are summarized in the following table:372
Agricultural
protection Exclusive Exclusive Parallel None
National
EPC has expressly excluded from its scope of regulation the plant and animal varieties, and on the international level, a specific treaty was entered into for the
371 http://ec.europa.eu/internal_market/indprop/geo-indications/index_en.htm, date of review: Decem-ber 10, 2014.
372 Dr. András Jókuti, ‘A földrajzi árujelzők oltalma’ (The Protection of Geographical Indications), in:
Iparjogvédelem (Industrial Property Rights), published by Szellemi Tulajdon Nemzeti Hivatala (the Hungarian Intellectual Property Office), Budapest 2012, p. 148.