For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Friday, 30 September 2005

TOO MANY PDOs? DATABASE RIGHT REVIEW; EXILE FOR THE IPKAT?


1 More PDO applications

Issue C240 of the European Commission's Official Journal announces the filing of three applications for registration under Article 6(2) of Regulation 2081/92 on the protection of geographical indications. The applications are for

* CAROTA DELL'ALTOPIANO DEL FUCINO, an Italian carrot of which it is said: "Precisely because of the very loose and unstructured nature of the soil itself, the carrots produced in Fucino are notable for the shape of the vegetable which is mainly cylindrical with a rounded tip, free of root hairs and with no deep scarring where the leaves emerge, with a smooth skin and the whole root has an intense orange colour". The carrots are rich in thiamine, riboflavin and (surprise, surprise) carotene.

* PATACA DE GALICIA or PATATA DE GALICIA, for Spanish potato tubers with a diameter of 40 mm to 80 mm (calculated as the length of one side of a square mesh through which the potato just passes without forcing) and being (i) oval to round, (ii) shallow eyed, (iii) thin, smooth, bright yellow skinned, (iv) white fleshed and (v) firm to the touch.

* CLÉMENTINE DE CORSE for pipless Corsican clementines grown at an altitude of between 2 and 300 metres.
The IPKat rather liked the idea of protecting products that had genuine character and were held in repute, so that other traders could not get better prices for their inferior goods by stealing the 'good' product's name. But he is more than somewhat disenchanted with the continuous trickle of PGI and PDO registrations for products that, in general, no-one except the growers and their immediate families have ever heard of and which are defined by sometimes ludicrous pseudo-technical descriptions. Merpel adds, is it still possible to buy generic products - or will prices be forced up by all producers turning themselves into growers or makers of PGI and PDO products?



Corcisan pipless (left);
Corsican pipsqueak (right)


2 Database sui generis right review

The sui generis database right in the European Union's 25 Member States protects databases in which there has been
"qualitatively and/or quantitavely a substantial investment in either the obtaining, verification or presentation of the contents".
Under Article 16(3) of the European Union's Database Directive 96/9, the Commission has to submit every three years to the European Parliament, the Council and the Economic and Social Committee
"a report on the application of this Directive, in which, inter alia, on the basis of specific information supplied by the Member States, it shall examine in particular the application of the sui generis right ... and shall verify especially whether the application of this right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken, including the establishment of non-voluntary licensing arrangements. Where necessary, it shall submit proposals for adjustment of this Directive in line with developments in the area of databases".
The IPKat wonders if he must have missed something, since he can't recall having seen any of these reports (which, according to his calculations, should have been submitted in 2001 and 2004), though he has heard rumours that a review of the impact of sui generis right is currently taking place. Can anyone enlighten him? If so, please feel free to post comments below or to email the IPKat here. A future blog will consolidate all responses, giving credit where due.


3 Putting the Kat out?

The IPKat's terrestrial snailmail this morning contained a very handsome brochure from the UK's Institute of Trade Mark Attorneys entitled "UK Trade Mark Professionals: Providing a Gateway to Europe and the World". The front cover contains a partial picture of the British Isles, South Wales (the location of the Trade Mark Registry) having fallen off the bottom of the page.

More sinister was the accompanying letter of welcome from the affable President of ITMA, Stephen James (right), normally the nicest of people, which closes with the menacing words "You may even consider becoming one of our many Overseas Members". The IPKat quite enjoys his occasional forays across the water but, being a staunch Londoner, he is a little alarmed at what appears to be a tacit invitation to go into exile. A word of reassurance from the Institute - which must be congratulated on its modernity - would be very much welcomed.

Join ITMA here
Another ITMA here for people who are very old

21 comments:

James Heald said...

Database Rights Review.


The apparent lack of these reports, and in particular the lack of any economic analysis from the Commission on whether the Directive was having a net positive or a net negative impact for European database makers, was one of the points James Boyle castigated the European regime for, in a powerful column on database rights for the Financial Times last November:

http://news.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html.

(It may also be interesting that some of the leading database makers in the United States have again recently fought off an attempt to write database protection into US Law).

The recently renamed "knowledge economy" unit of the European Commission's DG Internal Market does have a commissioned study on its website, apparently completed circa 2002:

http://europa.eu.int/comm/internal_market/copyright/docs/studies/etd2001b53001e72_en.pdf.

On the other hand, according to this page, "these studies represent solely the opinion of the authors", so it is not clear to me whether or not the study is supposed to have the status of a formal report from the Commission.

On a first glance, the study looks quite strong on comparing the various transpositions of the directive into the different EU national laws. But analysis of the economic impact is limited to a rather haphazard questionnaire, which gathered some interesting comments from a variety of interests; but unfortunately next to no reponses from real-life database makers in the EU, and none at all from database makers abroad looking in at the EU situation from eg the United States.

DG Markt is also undertaking a review of the current acquis communitaire in the whole area of copyright and related rights. A couple of issues regarding the database directive are touched on in the working document published last year, and did draw some comments in the subsequent consultation based on it.

According to the docment, "The Database Directive will be subject to a separate report pursuant to its Article 16(3), which establishes an obligation for the Commission to submit such a report. This report will be submitted by summer 2005 and will deal with a number of substantive issues relating to the functioning of the Directive, beyond the points listed below".

For the most accurate information, the best person to contact might be someone like Liz Coleman, who's the UKPO staffer currently seconded to the unit.

Hope this helps,

Best regards,

James Heald.

Jeremy said...

James, this is so helpful. Many thanks for your really useful links and comments.

Dev Gangjee said...

Dear IPKat

Just two reasons why I feel PDO/PGI registrations are a good thing, even for lesser known products -

1. Given the bandying about of 'First in Time, First in Right' as a solution to Trademark v GI conflicts, coupled with the steady flow of geographical trademarks onto trademark registers, its a case of better safe than sorry. Obtaining registered protection then becomes especially important for producers who enjoy a localized reputation and a fledgling national/international one; this is also a major concern for many developing country producers of GIs, who sometimes find 'speculative' trademarks already registered before they have a chance to enter important markets.

2. There is another line of argument from agricultural economists and food policy researchers that encouraging regional products preserves agrodiversity and fights a rearguard action against the rise of monocultures and a blandly uniform global supermarket.
I don't think we need to worry about running out of generics just yet!

Having said that, I agree with your point about pseudo-technical descriptions but that may due to a deeper structural uncertainty which plagues GI theory. There doesn't seem to be any clear agreement as to whether to base GI protection on -
(a) The French 'terroir' model [a unique product-place link] or
(b) The German reputational model [protecting a historical/established reputation]
So TRIPS runs together all 3 factors in its definition of a GI in Article 22.1 [characteristic, quality and reputation], as do most other sui generis GI laws, leaving plenty of room for basing an application somewhere in between historical reputation/traditional skills in the region factors or more scientific soil/climate/weather/organic chemistry type factors.

Always enjoy seeing a Geographical Indications post!

Best wishes

Dev

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