There are various texts providing protection for geographical indications: the Consumer Code enacted by Law No. 93-949 of 26 July 1993, as amended, and Decree No. 68-807 of 13 September 1968. In general, geographical indications are subject to the general requirement of conformity laid down by Articles L 212-1 ff. of the Consumer Code. Thus, deception with respect to the nature, composition or origin (Article L 217-6 of the Consumer Code) of the product and the possession, display and offering for sale of such products are punishable offences. Similarly, Article L 121-1 prohibits all advertising that includes, in whatever form, allegations, indications or representations that are false or such as to mislead where these relate to ... the origin ... of the goods and services advertised. Articles L 115-1 to L 155-26 of the Consumer Code afford specific protection for the designations eligible under French intellectual property law, namely appellations of origin and registered appellations of origin, as well as protected geographical indications and protected designations of origin within the meaning of 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. In this case each recognized geographical indication is published in the Official Journal of the French Republic (Journal Officiel de la République Française - JORF) in the form of a decree-order, which establishes entitlement to protection.
In France, the geographical indication protection regimes apply to all products. However, only agricultural and food products, raw or processed, are eligible for a registered appellation of origin or an agricultural label/certificate of conformity with geographical indication.
No, as far as geographical indications as defined in the TRIPS Agreement are concerned.
See the replyto question 1 above. All these provisions were notified by France at the beginning of 1996 and published in documents IP/N/1/FRA/G/1 to 5 and IP/N/1/FRA/O/1.
[Answer 1: There are various texts providing protection for geographical indications: the Consumer Code enacted by Law No. 93-949 of 26 July 1993, as amended, and Decree No. 68-807 of 13 September 1968. In general, geographical indications are subject to the general requirement of conformity laid down by Articles L 212-1 ff. of the Consumer Code. Thus, deception with respect to the nature, composition or origin (Article L 217-6 of the Consumer Code) of the product and the possession, display and offering for sale of such products are punishable offences. Similarly, Article L 121-1 prohibits all advertising that includes, in whatever form, allegations, indications or representations that are false or such as to mislead where these relate to ... the origin ... of the goods and services advertised. Articles L 115-1 to L 155-26 of the Consumer Code afford specific protection for the designations eligible under French intellectual property law, namely appellations of origin and registered appellations of origin, as well as protected geographical indications and protected designations of origin within the meaning of 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. In this case each recognized geographical indication is published in the Official Journal of the French Republic (Journal Officiel de la République Française - JORF) in the form of a decree-order, which establishes entitlement to protection.]
The entire procedure is expressly addressed by the texts in question.
France has notified the following examples of geographical indications: (1) Agricultural and agri-food products - Spirit drinks: Cognac, Registered Appellation of Origin (RAO), Decree of 15 May 1935. - Wines: Chateauneuf du Pape RAO, Decree of 2 November 1966; Southern French wines, Decree of 15 October 1987. - Cheeses and other dairy produce: Beaufort RAO, Decree of 12 August 1993; Tomme de Savoie, Label No. 02.76, Order of 27 July 1978, Protected Geographical Indication (PGI). - Other food products: Nyons olive oil and Nyons black olives RAO, Decrees of 10 January 1994; Landes yellow chicken, Label No. 18-91, Order of 23 June 1992, PGI; Lautrec pink garlic, Label No. 02.66, Order of 20 June 1966, PGI. (2) Other products Tahiti Monoi, appellation of origin, Decree No. 92-340 of 1 April 1992, appended. All these geographical indications are protected in France by the provisions of the Consumer Code and by Decree No. 68-807 (see the reply to question 1 above).
The Intellectual Property Code has been amended to take into account Article 23.2 of the TRIPS Agreement for wines and spirits. However, in France all products with geographical indications benefit from a high level of protection.
The French legislation (Consumer Code, Article L 115-5) states that "neither the geographical name constituting the appellation of origin nor any other term evoking it may be employed for any similar product, subject to the laws and regulations in force on 6 July 1990, or for any other product or service, where such use may lead to the misappropriation or lessening of the renown of the designation of origin". As a party to the Lisbon Agreement, France has been applying its provisions since 25 September 1966. According to Article 3 of this Agreement, "protection is provided against any misuse or imitation, even if the true origin of the product is indicated or the designation is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like". Article 13(b) of Regulation (EEC) No. 2081/92, which is directly applicable in France, contains similar provisions.
Geographical indications are defined by the following texts: - Articles L 115.1, L 115.22, L 115.23 and L 115.26.1 of the Consumer Code, as amended by the Law of 3 January 1994; - Article 5 of Decree No. 68-807 of 13 September 1968; - Article 2 of Regulation (EEC) 2081/92 of 14 July 1992.
The definition of geographical indications refers to criteria of quality, renown and reputation which in France are directly linked with the region of origin.
Criteria expressing the link with the place of origin (renown, reputation, quality, natural factors, human factors) are taken into consideration in the geographical indication recognition procedure.
Human factors form part of the criteria adopted for the recognition of a specific product eligible in France for a designation of origin.
No.
The request for the recognition of geographical indications is always based on a request from the trade. The National Institute of Appellations of Origin (INAO) and the National Joint-Trade Wines Office (ONIVINS) in their capacity as public institutions, the National Commission of Agricultural and Food Product Labels and Certificates (CNLC), an independent administrative authority, and the ministries concerned all contribute within their sphere of competence to the definition of production areas, conditions of production and control requirements. The opinion of the Conseil d'Etat, the higher administrative jurisdiction, is required by the ministries concerned for the recognition by decree of a geographical indication for a product other than an agricultural product or foodstuff.
With regard to wines, the Community provisions concerning homonymous geographical indications are set out in Article 15.4, for similar products, and in Article 15.5, for other products, of Council Regulation (EEC) No. 823/87, as amended, of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions. The French legislation, under Article L 115-5 of the Consumer Code, also excludes any possibility of homonymous geographical indications, for similar products, and any use of the geographical name constituting a designation of origin or any term evoking it, for other products, where such use might lead to the misappropriation or lessening of the renown of a designation of origin.
The relevant provisions of the Consumer Code are similarly applicable to foreign geographical indications if they have previously been incorporated in the lists of the bilateral or multilateral agreements to which France is party. (For example, the designations: Havana, for Cuban tobacco, and Budweiser, Budvar and Pilsen, for Czech beers, are protected by previous decisions of the French courts.) A foreign geographical indication can also be protected in France on the basis of the general provisions of the Consumer Code (L 212-1 ff., L 217-6 and L 121-1, see the reply to question 1 above).
The protection of a geographical indication by France is based on the principle of its recognition and protection in the country of origin.
The French legislation recognizes the appellation of origin as an intellectual property right and as the "name of a country, region or locality used to designate a product originating therein and whose quality or characteristics are due to a particular geographical environment with its inherent natural and human factors." As a member of the European Union, it applies 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. Article 2 of this Regulation defines designation of origin and geographical indication as follows: "For the purposes of this Regulation: "(a) Designation of origin: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff: - Originating in that region, specific place or country; and - the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area; "(b) geographical indication: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff: - originating in that region, specific place or country; and - which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area. "Certain traditional geographical or non-geographical names designating an agricultural product or a foodstuff originating in a region or a specific place, which fulfil the conditions referred to in the second indent of paragraph 2(a) shall also be considered as designations of origin." These geographical names are geographical indications within the meaning of Article 22 of the TRIPS Agreement.
See the reply to question 14 under I above.
[Answer 14: With regard to wines, the Community provisions concerning homonymous geographical indications are set out in Article 15.4, for similar products, and in Article 15.5, for other products, of Council Regulation (EEC) No. 823/87, as amended, of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions. The French legislation, under Article L 115-5 of the Consumer Code, also excludes any possibility of homonymous geographical indications, for similar products, and any use of the geographical name constituting a designation of origin or any term evoking it, for other products, where such use might lead to the misappropriation or lessening of the renown of a designation of origin.]
Each geographical indication is the subject of recognition by the public authority and cannot be owned privately. The right to use a geographical indication is reserved for members of the trade who respect the conditions attached to each geographical indication.
Each within its own sphere of competence, the INAO, ONIVINS, CNLC, the ministries concerned and the Conseil d'Etat all contribute to the recognition of geographical indications (see the reply to question 13 above).
The initiative must necessarily come from the trade.
The trade makes a financial contribution to the costs of applying and maintaining rights in geographical indications.
No, see the reply to question 10 above.
[Answer 10: Criteria expressing the link with the place of origin (renown, reputation, quality, natural factors, human factors) are taken into consideration in the geographical indication recognition procedure.]
See the reply to question 10 above.
Any information tending to show that the application is well-founded and, in particular, the links with the place of origin, renown, reputation, qualities, and natural and human factors.
The application for recognition specifies the product for which a geographical indication is requested.
Various comment and public enquiry procedures are followed in connection with the geographical indication recognition process. These enable the members of the trade to express their views. If recognition is disputed, the channels of appeal against administrative decisions are available.
Any natural or legal person may comment on/oppose the recognition of a geographical indication.
The recognition of a foreign geographical indication in France presupposes incorporation in the lists of bilateral or multilateral agreements. The criminal courts are competent under the rules of ordinary law for products for which a geographical indication has been recognized in France or abroad. Under Articles L 115-16 and L 115-18 (Consumer Code), it is an offence, on the one hand, to make unlawful use of or, on the other hand, to affix or have affixed or to cause to appear by excision, addition or alteration an incorrect designation of origin on natural or manufactured products offered for sale or intended to be offered for sale. The sale, offering for sale or placing in free circulation of such products is subject to the same penalties (Articles L 115-16 and L 115-18 of the Consumer Code). Article L 115-17 allows individuals, unions or associations to claim criminal indemnification if they consider themselves to have been injured by the offence. In general, geographical indications are subject to the general requirement of conformity established by Articles L 212-1 ff. of the Consumer Code. Thus, deception with respect to the nature, composition or origin (Article L 217-6 of the Consumer Code) of the product and the possession, display and offering for sale of such products are punishable offences. Similarly, Article L 121-1 prohibits all advertising that includes, in whatever form, allegations, indications or representations that are false or such as to mislead where these relate to ... the origin ... of the goods and services advertised. Proceedings may be instituted in the civil or criminal courts, for example on the basis of Article L 115-5 of the Consumer Code which prohibits any use liable to lead to the misappropriation or lessening of the renown of a designation of origin. Any foreigner who is the owner of intellectual property rights protected in France may have them enforced in any court, in accordance with the same rules of attribution of jurisdiction.
Geographical indications are recognized indefinitely.
There is no provision for such a procedure (see the reply to question 28 above).
[Answer 28: Geographical indications are recognized indefinitely.]
The protection of a geographical indication is not subject to its continuous use. The inspection procedures attest to the use of a geographical indication.
Quality and quantity controls are carried out by a third party: INAO, ONIVINS, certifying bodies, control commissions, public official monitoring services.
Quality and quantity controls are based on documents and on-the-spot inspections of the production conditions and the products (analysis, tasting, labelling, packaging).
At the request of interested members of the trade, the production conditions and the production area may be modified under a procedure identical to the recognition procedure.
Apart from requests for modifications of the production area and production conditions (see reply to question 34 above), action to withdraw recognition of a geographical indication is rare and taken at the request of the trade (e.g., AOC Parsac-Saint Emilion, recognition Decree revoked by a Decree of 24 June 1993).
The requirements attached to the use of a geographical indication are all laid down in the recognition texts. The producer must be located in the production area and must respect the specific production conditions.
See the replies to questions 30 and 32 above.
[Answer 30: The protection of a geographical indication is not subject to its continuous use. The inspection procedures attest to the use of a geographical indication.]
[Answer 32: Quality and quantity controls are carried out by a third party: INAO, ONIVINS, certifying bodies, control commissions, public official monitoring services.]
See the reply to question 20 above.
[Answer 20: The trade makes a financial contribution to the costs of applying and maintaining rights in geographical indications.]
The ordinary courts are competent in accordance with the rules of ordinary law to deal with products having a recognized geographical indication. The legal provisions cited in reply to question 27 above are applicable.
[Answer 27: The recognition of a foreign geographical indication in France presupposes incorporation in the lists of bilateral or multilateral agreements. The criminal courts are competent under the rules of ordinary law for products for which a geographical indication has been recognized in France or abroad. Under Articles L 115-16 and L 115-18 (Consumer Code), it is an offence, on the one hand, to make unlawful use of or, on the other hand, to affix or have affixed or to cause to appear by excision, addition or alteration an incorrect designation of origin on natural or manufactured products offered for sale or intended to be offered for sale. The sale, offering for sale or placing in free circulation of such products is subject to the same penalties (Articles L 115-16 and L 115-18 of the Consumer Code). Article L 115-17 allows individuals, unions or associations to claim criminal indemnification if they consider themselves to have been injured by the offence. In general, geographical indications are subject to the general requirement of conformity established by Articles L 212-1 ff. of the Consumer Code. Thus, deception with respect to the nature, composition or origin (Article L 217-6 of the Consumer Code) of the product and the possession, display and offering for sale of such products are punishable offences. Similarly, Article L 121-1 prohibits all advertising that includes, in whatever form, allegations, indications or representations that are false or such as to mislead where these relate to ... the origin ... of the goods and services advertised. Proceedings may be instituted in the civil or criminal courts, for example on the basis of Article L 115-5 of the Consumer Code which prohibits any use liable to lead to the misappropriation or lessening of the renown of a designation of origin. Any foreigner who is the owner of intellectual property rights protected in France may have them enforced in any court, in accordance with the same rules of attribution of jurisdiction.]
See the reply to question 40 above (negative).
[Answer 40: No.]
In France, geographical indications and, more particularly, designations of origin are a specific intellectual property right. This regime does not operate on a licensing basis.
Today, France no longer uses for its products any third-country geographical indication recognized and protected in its country of origin. It has abandoned these practices by means of transition periods negotiated at the time. Some geographical indications recognized and protected in France, particularly some of the most prestigious designations of origin, are being used by certain Members of the WTO within the meaning of the Article 24.4 exception.
The relationship between trademarks and geographical indications is organized as follows: - Article 40.3 of Regulation (EEC) No. 2392/89 and Article 13.3 of Regulation (EEC) No. 2333/92 preserve, in particular, the right to a brand name for a wine which contains the name of a specified region if that brand name corresponds to the identity of its original holder and if it was registered at least 25 years before the official recognition of the geographical indication and has actually been used since then without interruption. This right cannot be invoked against the use of geographical names for wines. - Article 14 of Regulation (EEC) No. 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs deals with the relationship between trademarks and geographical indications: - Paragraph 2, in particular, provides that the use of a trademark registered in good faith before the date on which application for registration of a geographical indication was lodged may continue notwithstanding the registration of a geographical indication, where there are no grounds for invalidity or revocation of associated with a risk of the consumer's being deceived. - Paragraph 3 stipulates that: "A designation of origin or geographical indication shall not be registered where, in the light of a trademark's reputation and renown and the length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product". - The Consumer Code (Article L 115-5) provides that "neither the geographical name constituting the designation of origin nor any other term evoking it may be employed for any similar product, subject to the laws and regulations in force on 6 July 1990, or for any other product or service, where such use may lead to the misappropriation or lessening of the renown of the designation of origin".
See the reply to question 44 above.
[Answer 44: The relationship between trademarks and geographical indications is organized as follows: - Article 40.3 of Regulation (EEC) No. 2392/89 and Article 13.3 of Regulation (EEC) No. 2333/92 preserve, in particular, the right to a brand name for a wine which contains the name of a specified region if that brand name corresponds to the identity of its original holder and if it was registered at least 25 years before the official recognition of the geographical indication and has actually been used since then without interruption. This right cannot be invoked against the use of geographical names for wines. - Article 14 of Regulation (EEC) No. 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs deals with the relationship between trademarks and geographical indications: - Paragraph 2, in particular, provides that the use of a trademark registered in good faith before the date on which application for registration of a geographical indication was lodged may continue notwithstanding the registration of a geographical indication, where there are no grounds for invalidity or revocation of associated with a risk of the consumer's being deceived. - Paragraph 3 stipulates that: "A designation of origin or geographical indication shall not be registered where, in the light of a trademark's reputation and renown and the length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product". - The Consumer Code (Article L 115-5) provides that "neither the geographical name constituting the designation of origin nor any other term evoking it may be employed for any similar product, subject to the laws and regulations in force on 6 July 1990, or for any other product or service, where such use may lead to the misappropriation or lessening of the renown of the designation of origin".]
In the event of a conflict between a geographical indication and a trademark, the provisions of Articles L 711-2, L 711-3 and L 711-4 of the Intellectual Property Code will apply. Article L 711-2 excludes from registration as a trademark, as non-distinctive, signs or names which may serve to designate ... the geographical origin ... of the goods or service. Article L 711-3: "The following may not be adopted as a mark or an element of a mark: (a) Signs excluded by Article 6ter of the Paris Convention for the Protection of Intellectual Property of 20 March 1883, as revised, or by Article 23.2 of Annex IC to the Agreement Establishing the World Trade Organization; (b) signs contrary to public policy or morality or whose use is prohibited by law; or (c) signs liable to mislead the public, particularly as regards the nature, quality or geographical origin of the goods or services." Article L 711-4: "Signs may not be adopted as marks where they infringe prior rights, particularly: (...), (d) a protected appellation of origin, (...)." Proceedings may be instituted in the civil or criminal courts, for example, on the basis of Article L 115-5 of the Consumer Code which prohibits any use liable to lead to the misappropriation or lessening of the renown of a designation of origin.
See the reply to question 46 under I above.
[Answer 46: In the event of a conflict between a geographical indication and a trademark, the provisions of Articles L 711-2, L 711-3 and L 711-4 of the Intellectual Property Code will apply. Article L 711-2 excludes from registration as a trademark, as non-distinctive, signs or names which may serve to designate ... the geographical origin ... of the goods or service. Article L 711-3: "The following may not be adopted as a mark or an element of a mark: (a) Signs excluded by Article 6ter of the Paris Convention for the Protection of Intellectual Property of 20 March 1883, as revised, or by Article 23.2 of Annex IC to the Agreement Establishing the World Trade Organization; (b) signs contrary to public policy or morality or whose use is prohibited by law; or (c) signs liable to mislead the public, particularly as regards the nature, quality or geographical origin of the goods or services." Article L 711-4: "Signs may not be adopted as marks where they infringe prior rights, particularly: (...), (d) a protected appellation of origin, (...)." Proceedings may be instituted in the civil or criminal courts, for example, on the basis of Article L 115-5 of the Consumer Code which prohibits any use liable to lead to the misappropriation or lessening of the renown of a designation of origin.]
See the reply to question 39 above.
[Answer 39: The ordinary courts are competent in accordance with the rules of ordinary law to deal with products having a recognized geographical indication. The legal provisions cited in reply to question 27 above are applicable.]
The owners of intellectual property rights have the capacity to have their rights enforced in the courts. In French, the term "right owner" is preferred to the term "right holder" used in the TRIPS Agreement. The public authorities generally provide protection against the misuse of geographical indications by instituting criminal proceedings. An action for wrongful use of a geographical indication may also be brought in the civil courts (see the reply to question 27 above). When the wrongful use of a geographical indication constitutes a criminal offence, the procedures are as follows: (1) Any natural or legal person who finds that wrongful use is being made of a geographical indication may refer the matter to the administrative authority responsible for the application of the Consumer Code (General Directorate of Competition, Consumption and Enforcement - DGCCRF). This administration then makes the appropriate administrative inquiries in order that, if necessary, the offenders may be prosecuted. The case is referred to the judicial authority (State prosecutor) on the basis of an administrative document which sets out all the established facts. In accordance with the general rules of French criminal law, the interests of the plaintiff are normally protected by means of a public prosecution initiated by both the administration and the State prosecutor. Within these proceedings, the plaintiff may obtain compensation for the injury suffered and claim criminal indemnification in the form of damages and interest. The plaintiff does not have to be represented by a lawyer. (2) Within the context of their normal supervisory activities, the DGCCRF's supervisors may, on their own initiative, investigate any wrongful use of a geographical indication and, moreover, refer the matter, under the above-mentioned conditions, to the judicial authorities. Furthermore, anyone who considers himself injured by this offence may, by lodging a complaint with the investigating judge, bring criminal indemnification proceedings and instigate a public prosecution. The general role of the police and gendarmerie is to receive complaints and, where appropriate, after making their inquiries, refer the matter to the State prosecutor. The National Institute of Appellations of Origin, an administrative public institution responsible for monitoring, promoting and protecting appellations of origin and for protecting the wine market and the economic regime for alcohol, under the Ministry of Agriculture and Fisheries, may bring criminal indemnification proceedings under Article 23 of the Decree-Law of 30 July 1935 relating to the protection of the wine market and the economic regime for alcohol, published in the OJ of 31 July 1935. Article L 421-1 of the Consumer Code states that: "Lawfully declared associations whose explicit statutory purpose is to protect the interests of the consumer may, if so authorized, exercise the rights accorded to parties bringing criminal indemnification proceedings in relation to acts which harm, directly or indirectly, the collective interests of consumers (...)". According to Article L 421-7 of the same Code "The associations mentioned in Article L 421-1 may apply to be joined to proceedings before the civil courts (...) when the purpose of the initial action is to obtain compensation for injury suffered by one or more consumers because of acts that do not constitute a criminal offence".
The text recognizing a geographical indication is published in the Official Journal (JORF).
France is a Member of the WTO. It has also acceded to the following WIPO Series Conventions which deal, in part, with geographical indications: - Paris Convention; - Madrid Agreement for the Repression of False or Deceptive Indications of Sources on Goods of Origin; - Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, under which all French appellations of origin are registered. France is also party to the Stresa Convention on the Use of Appellations of Origin and Denominations of Cheeses. France protects French and foreign designations of origin in accordance with its national legislation and, by decree, has incorporated these international conventions and agreements into its domestic law in order to have them applied and their terms respected.
Before the implementation of the TRIPS Agreement, France had signed bilateral agreements in order to protect French appellations of origin (see document IP/N/4/FRA/1 of 29 January 1996). As a member State of the European Union, France applies the various agreements relating to the protection of geographical indications concluded by the European Communities, in particular with Australia, the United States, Mexico, Hungary, Romania and Bulgaria.
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