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Thursday, 16 December 2010

GI ingredients in the EU: the inside story

Cats have yet to gain protected status
under Regulation 510/2006 ...
Today the European Commission published its Communication — Guidelines on the labelling of foodstuffs using protected designations of origin (PDOs) or protected geographical indications (PGIs) as ingredients (here), which the IPKat has been perusing.  He knows what a dangerous matter it can be for a trader to use a PGI or PDO (hereafter just GI) without due regard for the very wide scope of infringement provided under Council Regulation 510/2006, Article 13 of which provides, inter alia:
"Article 13.1  Registered names shall be protected against:

(a) any direct or indirect commercial use of a registered name in respect of products not covered by the registration in so far as those products are comparable to the products registered under that name or in so far as using the name exploits the reputation of the protected name;

(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as "style", "type", "method", "as produced in", "imitation" or similar;

(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;

(d) any other practice liable to mislead the consumer as to the true origin of the product."
Trade marks may cover ingredients of manufactured products, and businesses like Intel, Lycra and DSM will adopt a policy of prudently monitoring the use of their registered trade marks by others who use their products in their own manufacture.  GIs too may be used as ingredients of other products over which the original producers have no direct control (if you want proof, key 'Roquefort Burger' into your search engine), and the European Commission, as has recently been reported by the IPKat, is anxious to tidy up the loose ends and uncertainties that inhibit trade in GI-based products within the Single European Market.  So what does the Commission recommend? Let's take a look:

... the Commission wishes to set out below a series of recommendations relating to, on the one hand, the rules on using a name registered as a PDO or PGI and relevant European Union terms, abbreviations or symbols in the labelling of foodstuffs containing products benefiting from such a designation and, on the other hand, the specifi­cations relating to names registered as a PDO or PGI and incorporated as ingredients in foodstuffs.

2.1. Recommendations on the use of registered names

1. ...a name registered as a PDO or PGI may legitimately be included in the list of ingredients of a foodstuff [This is not the same as advertising the fact that the GI product is an ingredient, which may be an unlawful "evocation" or "practice liable to mislead" under Article 13(1). But see the next recommendation].

2. ... a name registered as a PDO or PGI may be mentioned in or close to the trade name [which may itself be registered as a trade mark] of a foodstuff incorporating products benefiting from a registered name, as well as in the labelling, presentation and advertising relating to that foodstuff, provided that the following conditions are met.

— The foodstuff in question should not contain any other ‘comparable ingredient’, i.e. any other ingredient which may partially or totally replace the ingredient benefiting from a PDO or PGI. As a non-restrictive example of the concept of ‘comparable ingredient’, the Commission considers that a blue-veined cheese (commonly known as ‘blue cheese’) could be considered comparable to ‘Roquefort’ cheese [the idea presumably being that you can't use mainly a generic blue cheese, with a little bit of Roquefort, and then enhance your labelling or advertising with the word 'Roquefort'].

— This ingredient should also be used in sufficient quantities to confer an essential characteristic on the foodstuff concerned [This is good. Not all but an essential characteristic, so my Champagne-flavoured marmalade can confer the taste of the product but not the light-headedness of the alcohol]. However, given the wide range of possible scenarios, the Commission is not able to suggest a minimum percentage to be uniformly applied [The Kat bets that this will annoy the hell out of an unspecified European nation that rejoices in the precision which comes from quantifying things]. As an example, the incorporation of a minimum amount of a spice benefiting from a PDO/PGI in a foodstuff could, if appropriate, be sufficient to confer an essential char­acteristic on that foodstuff. By contrast, the incorporation of a minimum amount of meat benefiting from a PDO/PGI in a foodstuff would not a priori be sufficient to confer an essential characteristic on a foodstuff.

— Finally, the percentage of incorporation of an ingredient with a PDO or PGI should ideally be indicated in or in close proximity to the trade name of the relevant foodstuff or, failing that, in the list of ingredients, in direct relation to the ingredient in question [fair enough].

3. On the assumption that the conditions referred to in point (2) are met, the Commission feels that the European Union terms, abbreviations or symbols accompanying the registered name should be used in labelling, within or close to the trade name or in the list of ingredients of the
foodstuff only if it is made clear that the said foodstuff is not itself a PDO or PGI. Otherwise, the Commission takes the view that this would result in the undue exploitation of the reputation of the PDO or PGI and result in consumers being misled. For example, the trade names ‘Pizza au Roquefort’ (Pizza with Roquefort) or ‘Pizza élaborée avec du Roquefort AOP’ (Pizza prepared with Roquefort PDO) would hardly give rise to a dispute in the eyes of the Commission [That's because they speak French, says Merpel, who bets she could easily find some Englishmen who would assume that 'Pizza au Roquefort' was either a pizza made by Roquefort or the name of a Premier League footballer]. By contrast, the trade name ‘Pizza au Roquefort AOP’ (Pizza with Roquefort PDO) would clearly be ill-advised, in as much as it could give the consumer the impression that the pizza as such was a product benefiting from a PDO.

4. ... if an ingredient comparable to an ingredient benefiting from a PDO/PGI has been incorporated in a foodstuff, the name registered as a PDO/PGI should appear only in the list of ingredients, in accordance with rules similar to those applicable to the other ingredients mentioned. In particular, it would be appropriate to use characters that are identical in terms of font, size, colour, etc. [it would indeed]

2.2. Recommendations concerning specifications relating to names registered as a PDO or PGI and incorporated as an ingredient in foodstuffs

... provisions governing the use of a name registered as a PDO or PGI in the labelling of other foodstuffs should not be included, in principle, in the specifi­cation for that name; compliance with existing EU legislation by economic operators should constitute an adequate guarantee. They may be included by way of exception only in order to resolve a specific, clearly identified difficulty and provided they are objective, proportionate and non-discriminatory. In any case, any provisions contained in the specifications could not be aimed at or result in modifying the legislation in force". [The Kat notices that some GI Regulations specify that a particular logo or label is to be used by the original producers and assumes that all this means is that the GI specification can't impose the same conditions on subsequent users, a sort of "exhaustion of rights" rule].
All in all this seems a good idea, says the IPKat, though he awaits critical responses from producers, manufacturers and consumer groups that will fine-tune his own understanding of this important but technical area.

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