Patent Office of the Republic of Poland


Basic information on legal protection of geographical indications and designations of origin for agricultural products and foodstuffs

Poland has become party to the European Union as from 1 May 2004. Since that date the Community laws are binding and applicable on the territory of Poland.

 

Here is the list of basic Community legislation applicable in the area of protection of geographical indications and designations of origin:

  • Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (EC Official Journal 1992, L 208/1) plus amendments: No 535/97 and 692/2003 ;
  • Commission Regulation (EEC) No 2037/93 of 27 July 1993 laying down detailed rules of application of Council Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (EC Official Journal 1993, L 185/5 with subsequent amendments);
  • Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 (EC Official Journal 1996, L 148/1) with subsequent regulations of the Commission on the so called simplified procedure as a base for recording subsequent names in the European Register;
  • Commission Regulation (EC) No 2400/96 of 17 December 1996 on the entry of certain names in the „Register of protected designations of origin and protected geographical indications” provided for in Council Regulation (EEC) No 2081/92 (EC Official Journal 1996, L 327/11) and subsequent supplementary regulations of the Commission.

 

1. DEFINITIONS

1.1. Protection of Designations of Origin and Geographical Indications under Regulation (EEC) No 2081/92

Council Regulation (EEC) No 2081/92 distinguishes between two categories of protected names: designations of origin and geographical indications. The distinction between the two categories depends on how closely the product is linked to the specific geographical area whose name it bears. Examples of names already registered can be found on the Commission website[1]. The Regulation also defines the concept of generic names, which cannot be protected.

 

1.1.1. Protection of Designations of Origin (PDO)

The protected designation of origin is for products closely associated with the area whose name they bear. Such a product must meet two conditions:

  • the quality or characteristics of the product must be connected with the particular geographical environment of the place of origin; this environment including inherent natural and human factors, such as climate, soil quality, and local know-how;
  • the production and processing of the raw materials, up to the stage of the finished product, must take place in the defined geographical area whose name the product bears.

 

1.1.2. Protection of Geographical Indications (PGI)

The protected geographical indications also designate products attached to the region whose name they bear; but the link is of different nature than that between the product with a PDO and its geographical area of origin. To be eligible to use a protected geographical indication a product must meet two conditions:

  • it must have been produced in the geographical area whose name it bears. Unlike the protected designation of origin, it is sufficient that one of the stages of production has taken place in the defined area. For example, the raw materials used in production may have come from another region;
  • there must also be a link between the product and the area which gives its name. However, this feature need not be essential, as in the case of a designation of origin. It is sufficient that a specific quality, reputation or other characteristic be attributable to the geographical origin of a given product.

Under the rules for protection of geographical indications, such a link may consist simply in the reputation of the product, if it owes its reputation to its geographical origin. In this case, the actual characterisitics of the product are not the determining factor for registration; it is enough for the name of the product to enjoy an individual reputation based specifically on its origin at the time the application for registration is lodged.

These rules are based on the idea that a geographical indication deserves protection even where it cannot be proven that the product owes its special features to its region of origin.

Thus, on the basis of the characteristics of the product, it is a producer who decides whether to apply for a PDO or a PDI.

 

1.1.3. Generic names

Generic names, in principle, cannot be registered as protected geographical indications or protected designations of origin; the Regulation defines generic names as names of products which, although they relate to the place or the region where the product was originally produced or marketed, have become the common names of the products.

 

2. Procedure

The European Union registration procedure is the same for geographical indications and for designations of origin.

 

2.1. Registration of geographical indications and designations of origin

2.1.1. Procedure at national level

Registration is the outcome of a private voluntary initiative on the part of an interested party or a producer. The first step is to lodge an application for registration.

 

a) The applicant

The system of registration is voluntary and open. Any producer located in the area and respecting the conditions of production specified in the product specification is entitled to use the registered name to market its product. Therefore, applications are usually made in the name of producer groups. A group means any association of farmers, producers and/or processors dealing with the same product. Other interested parties, for example consumers, may also participate in the group.

Such groups prepare together the application for registration of their products. As an exception, according to Commission Regulation (EEC) No 2037/93, when there is only one person or company in the area producing the product bearing the name to be registered, the single producer may apply for registration if no one else uses specific local manufacturing process, and if the area defined is clearly different from neighbouring areas, or if the product is different from other products.

However, the specifications are thoroughly checked in order to ensure that they are not formulated in such a way that gives any single producer a monopoly over the product. So, according to Regulation 2081/92, any producer who is established in the defined geographical zone may use the name as long as all the conditions of the specification are fulfilled. The specification must be transparent, clearly defined and made public.

 

b) The content of the application

The application must clearly state whether the name is to be registered as a protected geographical indication (PGI) or as a protected designation of origin (PDO).

The application for registration of a name must include the following elements:

  • the product specification providing information for each required element as laid out in Article 4 of Regulation (EEC) No 2081/92;
  • all other supporting documents upon which the Member State decides that the application is complete. For example, such documents could include the results of surveys or literary works proving the reputation of a name or maps showing the particular natural elements of a geographical zone. Additional illustrative documents, such as photos, menus, recipes or invoices can be useful;
  • a summary application.

The summary is published in the Official Journal of the European Union in all the official languages of the EU, which allows any person with a legitimate economic or legal interest to consult and object to the application.

The specification is the main evidence in support of the application. It is therefore the determining factor both in obtaining registration and in imposing discipline on conditions of manufacture.

 

c) Main elements of the specification

Name

This should include the name of a region, a specific place or, in exceptional cases, a country (remark: in principle, names of countries cannot be registered, but it is possible when the area of the country presents homogeneous geographical environment). In case of a designation of origin, it can be a traditional name, not necessarily geographical, indicating an agricultural product or foodstuff originating exclusively from a specific region or defined geographical area.

A name may not be registered where:

  • it conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the public as to the true origin of the product;
  • registration is liable to mislead the consumer as to the true identity of the product in case of a trademark with particular reputation and renown and the length of time it has been used.

 

Description

This should include the raw materials to be used and determine the principle characteristics of the product or foodstuff, i.e.:

  • physical (shape, color, weight);
  • chemical (minimum fat content, maximum water content);
  • microbiological (type of bacteria present);
  • biological (race, species);
  • and/or organoleptic (colour, taste, flavour, odour).

It is also important to indicate how the product can be presented, because its name will be registered for the indicated form, for example, fresh, canned or desiccated, etc. If the name is allowed to designate the product in a further stage, for instance processed, cut, sliced, grated and/or packaged, this has to be specified as well as any specific conditions required. This will allow the applicant to determine at or until which point of transformation the product displays the characteristics of the name.

 

Geographical area

This is the area in which the production and/or processing takes place. Generally, the limits of the area are naturally defined by natural and/or human factors which give the final product its particular characteristics. Supporting documents, such as maps, must be provided.

 

Proof of origin

This section refers to evidence that the agricultural product or foodstuff originates in the geographical area. This is related to the „traceability” of a product, i.e. following the product’s path from its area of production to its final destination. The specification must include the measures taken to ensure this traceability, for example register-keeping and specific controls. Illustrative documents such as flow-charts or tables showing all the steps of the process and control points could be provided.

 

Methods of production

This should include:

  • methods of obtaining the agricultural product or foodstuff;
  • if appropriate, the unvarying and local methods of production;
  • in certain cases, information concerning the packaging, if the group making the request determines and justifies that the packaging must take place in the limited geographical area to safeguard quality, ensure „traceability” or ensure control.

 

Link

The explanation of the „link” is the most important element of the product specification in view of registration. The link must provide an explanation of why a product is linked to one area, and not another; i.e. how far the final product is affected by the characteristics of the region in which it is produced.

For both PDOs and PGIs, a demonstration that a geographical area is specialised in a production is not enough to justify the link. In all cases, the effect of geographical environmental or other local conditions on the quality of the product should be emphasised.

For designations of origin, the explanation should provide a description of the geographical environment with the inherent natural and human factors which have an effect on the quality or characteristics of the product.

Natural factors may consist of characteristics of the area influencing techniques and uses or giving the raw materials of the product particular characteristics. Relevant information may concern the soil and the subsoil, the geography of the area, such as relief and slope, climate and microclimates, vegetation, landscape, etc. It should be explained in which way these specific characteristics can influence the final product and why the production is adapted to this particular environment.

Human factors concern the local and specific production methods of the area. For example, these include the choice of area in which to plant (e.g., areas protected from the wind), adaptation of the geographical area to suit the method of production, special constructions for production (e.g., mills, storage, etc.) as well as the development of local know-how or special skills in production. In most cases, the natural factors interact closely with the human factors. It is important to explain how the producers have taken advantage of the specific characteristics of the area to develop their product.

 

Inspection body

Inspection structure

Registration can be made only upon ensuring an appropriate inspection system. Therefore, set up of an inspection structure is mandatory.

The Commission does not carry out the inspections itself; Member States are wholly responsible for this matter and have some leeway to organise their own systems. The inspections may be carried out by designated inspection authorities, or by approved private bodies. For each PDO or PGI registered it must be indicated which inspection body is appointed. The responsibility can be delegated to national bodies.

To ensure effectiveness, the Regulation lays down certain requirements for the designated inspection authorities or approved bodies. In accordance with the standard EN 45011 of 26 June 1989, they must offer guarantees of objectivity and impartiality.

All costs of the inspection must be covered by the producers using the protected name. Therefore, if the inspection system is public rather than private, it should charge fees to producers that wholly cover the costs of its operations.

After having decided on the organisation of their inspection systems, Member States send the Commission updated lists of the authorities and/or bodies approved. The lists are published in the Official Journal of the European Union.

Presently, the authorised national inspection body is Agricultural and Food Quality Inspection (legal basis: the act of 21 December 2000 on market quality of agricultural products and foodstuffs (Journal of Laws of 2001, No 5, text 44) and the act of 18 December 2003 amending the act on market quality of agricultural products and foodstuffs (Journal of Laws of 2003, No 223, text 2220)).

 

Labelling

The Community logo (a symbol placed on an application for registration) may be used only on the registered products. Therefore, a category of the registered product must be indicated (PDO or PGI).

 

d) The Authority of the Member State competent to receive application for registration

In Poland, the competent authority to receive an application for registration is the Patent Office of the Republic of Poland.

The application is checked whether it has been duly drafted to meet formal requirements (it must be complete and have necessary documents) and whether it is justified.

The Patent Office of the RP conducts proceedings in this scope and then, in case the application with the specification has been found to be complete and appropriate, publishes the application in the official gazette „Wiadomości Urzędu Patentowego” (WUP) accessible on the Office’s website. The publication is necessary for a national objections procedure. Any interested natural or legal person should be provided with the opportunity to object to an application for registration at national level. It is very important, since objections coming from the same Member State cannot be examined during the registration procedure at Community level. After having completed the procedure at national level, the Patent Office transmits the application to the European Commission in Brussels. From the date of the transmittal till the decision on registration is taken by the European Commission, geographical indications and designations of origin enjoy transitional protection.

 

2.1.2. Procedure at Community level

a) Examination by the Commission

Once the application was received, the Commission has six months to conduct formal investigation whether the application meets all the requirements and the name qualifies for protection. If the Commission finds formal deffects, it may ask for supplementary information from the Member State. In this situation, the period of six months starts again from the date the answer of the Member State is received.

 

b) First publication

If the Commission finds that the application meets the requirements for registration, it decides to publish the summary application in the Official Journal of the European Union. Within a six-months period from the date of publication, statements of objection as to the registration of a geographical indication and/or a designation of origin can be transmitted to the Commission.

 

c) Objections procedure

A statement of objection is admissible, if:

  • the product does not meet the conditions required;
  • the name is a generic name;
  • registration of the name would cause conflict between the trademark and the geographical indication.

If the Commission finds that the objection is not admissible, it is rejected. In such a case the name will be registered.

When the Commission finds the objection admissible, it passes the matter to the Member State concerned, with a request to reach, within three months, a mutually acceptable solution, under the so called „amicable procedure”.

 

d) The Register

If no statement of objection has been received within six months, or, if the outcome of the objection procedure is a decision to register, the name is entered in the Register of protected designations of origin and protected geographical indications.


[1] http://europa.eu.int/comm/agriculture/foodqual/quali1_en.htm