Update, adopted regulation! GI protection for craft and industrial products at EU level is on!
Fikriye Doga Ulus
Intellectual Property Law LLM candidate at the University of Edinburgh
Let’s say you took a trip to Italy, Murano to be exact. You will see so many colorful figures, jewelry made from glass with delicacy, using a certain method of creation, special to this exact region. Did you know that till this regulation; the world-famous Murano glass could not be protected under geographical indication (GI) protection because the scope did not include handicrafts?
The Council of the European Union (EU) adopted the Regulation on Geographical Indication Protection for Craft and Industrial (CI) Products on 9 October 2023. This signalizes once the regulation comes into force, a similar protection agricultural products and foodstuffs, wines and spirit drinks benefit from, will also protect Albacete cutlery, Bohemian glass, Limoges porcelain and so many other CI products out there.[1]
BACKGROUND:
The European Union has had a system for a long time to protect GIs for agricultural products, foodstuffs, wines and spirit drinks. However, there was no unified protection towards CI products EU-wide until this regulation is proposed.[2]
What is really referred as a CI product, you might ask. Well, the product must meet three fundamental criteria; ‘being originated in a specific region or country – the given reputation, characteristic must be essentially attributable to its geographical origin – finally, at least one of its production steps must take place in the defined area’.[3]
To protect the CI products, different Member States of EU took different approaches. A number of Member States had national specific, sui generis protection systems. The rest used trademark and competition laws to protect the interests of the producers.[4] This indicates, different terms and conditions applied for protection of these products which did not go beyond the national territory of the very own country. Because there was not a common ground all together for protection, no country would recognize the others national system and it created the main problem, lack of certainty within the internal market. As a result of having various attitudes to the same issue, producers in different regions faced challenges protecting their products outside their legislation. Incentives they were receiving were not enough to sustain their unique and local skills harmonized with their ongoing traditions.[5]
The purpose of this regulation was included as one of the key proposals under Intellectual Property Action Plan in 2020, where European Commission pledged the feasibility of a GI protection system for non-agricultural products, which literary indicates CI products, at EU level.[6]
One thing is for sure, EU wanted to expand the scope of GI protection by including CI products. Nonetheless, GI protection for wines started in 1970, then the scope of protection was expanded for spirit drinks in 1989, for aromatized wines in 1991 and agricultural products in 1992.[7] For decades, wine producers have been protected, their businesses are thriving because the consumer was informed with symbols and logos on the products.
I am asking, why did it take too much time to acknowledge the presence of the ongoing problem CI producers are struggling with and come up with a solution like this? Let’s go back in time and assume, you made a purchase thinking you were buying a Murano glass bracelet, but since there was no protection in this regard, how can you be sure about whether you are being deceived or not? In order to put an end to this obscurity that has been going on for years, the emergence of a brand-new regulation introducing protection for CI products has fulfilled the urgent need.
WHAT ARE THE EXPECTED OUTCOMES?
The main elements to take away from here are as follows; the aim of this EU regulation is to widen the scope of GI protection for both the producers in local communities and consumers who demand to buy those CI products. This is a regulation that is long overdue. Since the product is a handicraft like Limoges porcelain and not a kind of wine, it was a big problem that it was deprived of the protection that comes with GI protection.
Now, that we have this regulation on CI products, we know that it has many aims to achieve for the benefit of the whole. But it should not be forgotten that it may lack certain aspects and raise some questions along the way.
What are the potential benefits?
First, the regulation brings a much-awaited harmonization into the internal market.[8] It will be establishing a uniform system applicable to CI products with GI protection throughout the European Union. This is the best way to eliminate all the problems that have arisen before depending on various systems Member States had.
Besides the general aim, the regulation is here to make a way for artisans and producers, particularly small businesses, to promote and protect names of their CI products which have the characteristics of the region that they originated from.[9] It will be a shield for protection against counterfeiting and will improve the visibility of authentic CI products on the market.[10] From a practical point of view, it will be an incentive to both local people and investors to persevere the production within the place of origin.[11]
Plus, this might give the needed incentive to encourage people to invest in the product, which will create valuable and sustainable job opportunities for the local community including in rural and less-developed regions in the designated geographical area.[12]
It is very clear that this regulation supports both parties in the demand and supply chain. Businesses in the region will gather attention and gain both financial and reputational boost. But at the same time, this will benefit the consumers by leading them towards the authentic products that they demand. Because when producers register with the GI system, they will be using symbols to indicate their origin.[13] That will draw consumers’ attention to their products, and it will enable the consumer to make informed choices while shopping and get what they truly desire.
Do we need more though?
It is hard to guess the future, but for sure, some questions will be raised along the way. To start with, expanding the scope of an already existing exclusive right may bring unknown limits to the protection scene. Because only the name or the reputation is protected under this concept, whether the appearance of the product is going to be protected is a question already raised to be discussed.[14] However, so far, the new proposal has not mentioned this aspect to be limited.[15]
That seems to be the right approach. Just because claiming to be protecting the product while setting out a perfect visual for the production line to obey would not be possible in every business chain even though they are fulfilling every criterion to be eligible for the CI product. Simply put, even two handmade objects will have little but many little differences from each other.
Secondly, the link to the origin should not be ignored while appreciating human skills involved in the creation of CIs.[16] The concern is understandable. People may move from one region to another and practice their skills of the particular CI product elsewhere, because simply there is nothing physically keeping the craft attached to the geographical region.[17] The essential part is the history behind the production steps. Still, what will happen if a lace specific to one region is taken somewhere else? What about the link to the original place of such products?[18]
This is such a hard question to answer, even law has not responded yet. From theoretical perspective, if product meets all the criteria, there should not be a discourse. Having said that, the local community of producers will not be pleased to see their traditional handicrafts sold anywhere other than their place of origin.
We will have to wait and see what the actual problem might be. But for now, it is safe to say that this regulation was a savior for all the CI product producers.
WHAT ABOUT THE FUTURE?
The decision-making procedure ended with the vote by the Council. On 27 October 2023, the regulation was published in the Official Journal of the EU, and it enters into force on the 20th day following its publication, which indicates 16 November 2023, and the law will be applicable starting from 1 December 2025.[19]
Can we be sure that the process is going to be all roses? The future will bring a broadened scope of protection for CI products which will be a brand-new incentive for producers.
Now that a step has been taken, let’s see; whether this regulation was the missing piece within the puzzle of intellectual property law, or did it overextend the GI regime and opened the box of Pandora for all the new uncertainties within the field?
Notes:
[1] Council of EU, ‘Geographical indications for craft and industrial products: Council gives its final approval’ (Press Release, 9 October 2023) < https://www.consilium.europa.eu/en/press/press-releases/2023/10/09/geographical-indications-for-craft-and-industrial-products-council-gives-its-final-approval/
[2] EUIPO, ‘EU landmark regulation on Geographical Indications for Craft and Industrial Products published in the Official Journal’ (27 October 2023) <https://www.euipo.europa.eu/en/news/eu-landmark-regulation-on-geographical-indications-for-craft-and-industrial-products-published-in-the-official-journal> accessed 4 November 2023
[3] EUIPO, ‘Geographical Indications’ <https://www.euipo.europa.eu/en/gi-hub/ci-regulation> 18 December 2023
[4] ibid. See also, Vishv Priya Kohli, ‘Protection of textiles and crafts in the EU through geographical indications – an evaluation of the new legislative proposal’ (2023) 45(7) EIPR 407
[5] Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on geographical indication protection for craft and industrial products amending Regulations (EU) 2017/1001 and (EU) 2019/1753 of the European Parliament and of the Council and Council Decision (EU) 2019/1754’ COM (2022) 174 final, 1 – 2
[6] European Commission Press Release, ‘Commission adopts Action Plan on Intellectual Property to strengthen EU's economic resilience and recovery’ (25 November 2020) <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2187> accessed 18 December 2023.
[7] European Parliament, Briefing EU Legislation in Process, ‘Geographical indications for wine, spirit drinks and agricultural products’ 12.
[8] Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on geographical indication protection for craft and industrial products amending Regulations (EU) 2017/1001 and (EU) 2019/1753 of the European Parliament and of the Council and Council Decision (EU) 2019/1754’ COM (2022) 174 final, 1 – 2
[9] EUIPO, ‘Council adopts new regulation on geographical indication protection for craft and industrial products’ <https://www.euipo.europa.eu/en/news/council-adopts-new-regulation-on-geographical-indication-protection-for-craft-and-industrial-products> accessed 10 October 2023
[10] Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on geographical indication protection for craft and industrial products amending Regulations (EU) 2017/1001 and (EU) 2019/1753 of the European Parliament and of the Council and Council Decision (EU) 2019/1754’ COM (2022) 174 final, 1.
[11] ibid.
[12] ibid 15.
[13] Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on geographical indication protection for craft and industrial products amending Regulations (EU) 2017/1001 and (EU) 2019/1753 of the European Parliament and of the Council and Council Decision (EU) 2019/1754’ COM (2022) 174 final, article 44. See also, EUIPO, ‘EU Regulation on geographical indication protection for craft and industrial products enters into force’ <https://www.euipo.europa.eu/en/news/eu-regulation-on-geographical-indication-protection-for-craft-and-industrial-products-enters-into-force> accessed 17 December 2023
[14] Anette Kur, Irene Calboli, Dev Gangjee, Anke Moerland, Martin Senftleben, ‘Opinion on the EU Commission’s proposals for broader protection in geographical indications law’ (2023) 45(6) EIPR 307, 308
[15] ibid.
[16] Javier Guillem Carrau, ‘Towards the extension of geographical indication protection of the European Union beyond the agricultural products: an EU craft GI's system’ (2023) E.I.P.R. 45(12), 725, 730
[17] Dev S. Gangjee, ‘GIs beyond wine: time to rethink the link?’ (2017) IIC 48(2), 129, 131
[18] ibid.
[19] EUIPO, ‘EU landmark regulation on Geographical Indications for Craft and Industrial Products published in the Official Journal’ (27 October 2023) <https://www.euipo.europa.eu/en/news/eu-landmark-regulation-on-geographical-indications-for-craft-and-industrial-products-published-in-the-official-journal> accessed 4 November 2023
