A high water mark of intellectual property policy?

The Green Paper marks the start of the public consultation process on what the Commission has described as “possibly granting EU-wide protection to traditional non-agricultural products rooted in the cultural and historical heritage of particular geographical locations by extending to such products the benefits of geographical indications.” So, what does this mean?

Geographical indications

The protection of geographical indications (GIs) is long established at a European level for agricultural products, foods and alcoholic beverages. Well-known examples of such products are Feta cheese, Champagne and Prosciutto di Parma. Protected Irish GIs include Waterford Blaa, Clare Island Salmon and Connemara Hill lamb. The justification for protecting these agricultural GIs is that they all have particular characteristics which derive from the geography, geology and climate of the particular place in which they are made (eg, soil type, drainage and altitude) which is often called the “terroir”. 

Now, the European Commission has proposed to extend this protection to non-agricultural products which have specific qualities due to “human factors found in the product’s place of origin, such as specific manufacturing skills and traditions.” This means that, in theory at least, terms such as Aran jumpers, Czech garnets and Bavarian dirndls may become the subject of protection whereby only certain manufacturers from particular regions may be entitled to use such terms.

Higher prices for consumers

The protection of non-agricultural GIs through a new system of registration is likely to conflict with both pre-existing trade mark rights and the ability to use what have up to now been considered to be generic or descriptive terms in the course of trade. The result would almost certainly be to stifle innovation and to result in higher prices for consumers.

The Green Paper notes that consumers are “often willing to pay a premium” for “authentic, original quality products.” Such consumers “pay attention to the geographical origin of products, are sensitive to the culture or tradition enshrined in them, or care about specific characteristics or quality.” However many consumers may not want to or simply cannot afford to pay a premium price for “authentic” products. To date these consumes have had the luxury of choice and cheaper versions have often presented an adequate alternative.

People, not places

The purpose of protecting agricultural products by GIs is to protect consumers from being misled as to the origin of particular agricultural products. This is because these products have particular characteristics which are inseparable from the geography, geology and climate of the particular place in which they are made; if they are not made in that place, they will not have those characteristics. 

However, the same cannot be said for non-agricultural products. The quality of non-agricultural products emanating from a particular region can largely be protected by the existing trade mark system. Non-agricultural products should, in principle, be able to be reproduced elsewhere and sold competitively subject to the intervention of existing IP rights. Cultural knowledge protection has not yet arrived at this point and this should not be used as a back-door means of protection.

By granting an excessive scope of protection to a limited number of manufacturers from a particular region the Commission is at risk of turning protection into protectionism. Is this intellectual property policy going over the top?