By Arnaud Lellinger, ECTA Geographical Indications Committee member, Gilbey Legal (FR)

On 30 November 2020, the European Commission launched a public consultation on the EU-wide protection of geographical indications for non-agricultural products. Such consultation shows the increasing importance of the Geographical Indications in the IP landscape. The Commission indicates in the “preliminary assessment of expected impacts” that “the initiative may empower producers to protect their rights against unfair competition from operators trying to ‘free-ride’ on the reputation of regional products”. The notion of “reputation” appears to be one of the core concepts that founds the GI protection system.

Nevertheless, it is one of the most unclear and complex notions to define. Considering this, the ECTA Geographical Indications Committee decided to initiate a reflection on this key concept in 2019, and to draft a position paper with the aim of defining this notion in GI law.

Through its work and studies of the case law over the year, the ECTA GI Committee found that, in many disputes involving GIs at the stage of their registration or enforcement, a thorough understanding and interpretation of the intangible concept of reputation was needed, in order not to be underestimated or broadened beyond measure. Such misinterpretation of this concept could lead to the overcrowding of the registries with GIs with a weak reputational link and related growth of disputes involving GIs and the use/registration of conflicting signs.

This project of a position paper was contemporary with the recent publication on 20 February 2020 of the long-time expected Study on Economic aspects of geographical indication protection at EU level for non-agricultural products (NON-AGRI GIs), which adopts an unusual dynamic conception of the notion of reputation, stating that the “GI protection can help building the reputation of the product”.

Based on its extensive research, reflection, and discussion, ECTA GI Committee’s position paper proposes a complete overview of the notion of reputation in the EU GI law and tries to define it and to show the relevance of this concept in GI ex officio or ex parte protection procedures, to finally make proposals for a clearer notion of reputation in GI law.

Such reflection is essential in view of the new NON-AGRI GI scheme, which shall be introduced soon. This new scheme could be the ideal laboratory to evaluate, and possibly introduce, new and more specific rules with respect to the concept of reputation at the GI registration stage and in protection procedures.

--

ECTA Geographical Indications Committee is strongly involved in GI-related matters. If you are interested and would like to join our Geographical Indications Committee, do not miss the General Committee Elections starting on 18 January 2021.