Row over Darjeeling? Just a storm in a tea-cup

Don't monkey around with Darjeeling!  Europe's top advisers
offer Protected Geographical Tips to tea producers and importers

Commission Implementing Regulation 1050/2011 of 20 October 2011 entering a name in the register of protected designations of origin and protected geographical indications (Darjeeling (PGI)) is one of those bits of European law that is designed to stir up some pretty strong feelings about the mechanisms deployed in the European Union both for protecting geographical indications and for settling disputes regarding them.  Take a look at the Recitals (nb links are provided by the IPKat):

"Whereas:  

(1) ... an application from India received on 12 November 2007 to register the name ‘Darjeeling’ as a protected geographical indication [PGI] was published in the Official Journal of the European Union. 

(2) Germany, France, Italy, Austria, the United Kingdom and a citizen of India lodged objections to such registration under Article 7(1) of Regulation ... 510/2006 [which lists the grounds on which objections may be made. These objections were made under Articles 7(3)(a) non-compliance with criteria for a PGI, (c) jeopardising an earlier trade mark of 5+ years standing and (d) genericity]. The objections were deemed admissible  ...[T]he Commission asked the Parties concerned to seek agreement among them. 

(3) An agreement was reached between France and India, which resulted in introducing clarifications ... to the effect that only bulk packaging is required to take place in the geographical area and that consumer packaging may take place within or outside the geographical area [readers may recall the battle over whether Parma ham could only be packaged in its place of manufacture, culminating in Regulation 148/2010. No doubt, even if consumer packaging initially takes place outside the geographical area, the PGI specification will eventually be amended so as to restrict this.  Merpel asks: "why does nobody seem to be doing any research into the increasingly popular practice of amending GI specifications?]. Consequently, it should be made clear in relation to labelling that the obligatory presence of a licence number and a specified logo is only required in respect of products in bulk shipped from the geographical area. 

(4) Agreement was only partially reached between Germany, Italy, Austria, the United Kingdom and the citizen of India ..., and India ...Following the agreement the botanical name ‘Camellia sinensis M Kuntz’, should be correctly referred to as ‘Camellia sinensis L.O. Kuntze’, and bulk packaging of ‘Darjeeling’ tea should be restricted to the geographical area. Any other kind of packaging or repackaging, including packaging intended for the final consumer, may take place within or outside the geographical area. 

(5) The objectors further alleged failure of compliance with Article 2 of Regulation ... 510/2006 [i.e., the objection that 'Darjeeling' doesn't comply with the definition of a PGI]. 

(6) Concerning the alleged absence of a link between the reputation and renown of the product and the area of production, it has been found that the product specifi­cation shows that the product is specific, and that the savoir-faire and acquired skills employed by producers as well as the pedo-climatic features and geographical environment of the geographical area (natural drainage of the soils, complex combination of very high rainfall and continuous low temperature) significantly affect the product’s characteristics which constitute the core of its reputation [No surprise here. This tea-drinking Kat would have thought Darjeeling's claim on this basis was stronger than many others. He sometimes wonders whether every little hillock in the sunny Mediterranean region on which there is an olive tree has been granted its own PGI status]. 

(7) ...

(8) The name ‘Darjeeling’ should only be used as a sales designation for tea that is wholly produced in the geographical area in accordance with the specification, although blending of such tea may take place within or outside the geographical area. Blends of Darjeeling and other teas should not bear the name ‘Darjeeling’ as the sales designation and should otherwise be labelled in conformity with the Union’s rules on labelling in particular to avoid that consumers are misled to a material degree [though the extent to which consumers are misled depends on their understanding of what the word 'Darjeeling' communicates to them in the first place]. 

(9) The statements of objection showed that the name ‘Darjeeling’ is used to designate certain products that are not in conformity with the specification, but which are comparable to such products. The continued use of the name on these products is found to jeopardise the existence of the name ‘Darjeeling’. Therefore the producers of such products should be granted a transi­tional period of 5 years to use the said name, pursuant to Article 13(3) of Regulation ... 510/2006, in so far as these products have been legally marketed for at least 5 years prior to 14 October 2009, and provided that the Union’s legal order, in particular with respect to Directive 2000/13 ... on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs is respected [Here's a point to ponder: what sort of intellectual asset is the right to use a name within circumscribed limits that eviscreate its goodwill and which is guaranteed to die within five years]. 

(10) Concerning the alleged generic character of the name proposed for registration, no proof of generic status has been established [But then, it isn't easy to convince the Commission that any word is generic. 'Feta' was a descriptive, generic term for a type of cheese for decades before the Commission, in a decision upheld by the Court of Justice, said it wasn't]. 

(11) In the light of the above, the name ‘Darjeeling’ should be entered in the Register of protected designations of origin and protected geographical indications ...

(12) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Protected Geographical Indications and Protected Designations of  Origin, HAS ADOPTED THIS REGULATION 

The Regulation itself is tiny:

Article 1 

The designation contained in Annex I to this Regulation shall be entered in the register. 

Article 2 

Registration is subject to a 5-year transitional period during which names including ‘Darjeeling’ may be used on products produced not in conformity with the specification, in so far as these products have been legally marketed for at least 5 years prior to 14 October 2009, and provided that the Union’s legal order, in particular with respect to misleading of consumers to a
material degree pursuant to Article 2 of Directive 2000/13/EC, is respected. 

Article 3 

The updated Single Document is contained in Annex II to this Regulation. 

Article 4 

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union".

The IPKat congratulates the applicants on completing their long trek to legal recognition. The process has not been an easy one.