Información para el examen en el marco del párrafo 2 del artículo 24 del Acuerdo sobre los ADPIC (lista de cuestiones sobre las indicaciones geográficas) - Ver detalles del documento

European Union

In general, Member States' replies focus on national law. The responses by the Community mainly cover European Community law, which includes Regulations directly applicable in Member States.

Wines and spirits At Community level the recognition of a geographical indication for wines requires its recognition by the Producer Member State as well as registration and publication in the Official Journal of the European Communities (Article 1, paragraph 3 of Regulation No. 823/87; Article 72, paragraph 2 of Regulation (EEC) No. 822/87; and Article 2, paragraph 3, point (i) of Regulation (EEC) No. 2392/89). This system provides protection ex officio. In addition, Council Regulation (EEC) No. 823/87 lays down the conditions which must be respected by Member States for the recognition of quality wines produced in specified regions (quality wines PSR = produced in specified regions). The provisions of the Regulation concern, in particular, the following: demarcation of the area of production; vine varieties; minimum alcohol content; yield per hectare; analysis and assessment of organoleptic characteristics, etc. (Article 2). Member States adopt the specific provisions and recognize the geographical indications of the wines produced in their territory (Article 3.1). The Commission is responsible for the publication of all the geographical indications recognized by the Member States. Council Regulation (EC) No. 3290/94, Annex XVI, modifies Council Regulation (EEC) No. 822/87, which establishes a common market organization for wine, by adding Article 72a, which implements Article 23.1 of the TRIPS Agreement. For spirit drinks and aromatized wines, Article 5 of Council Regulation (EEC) No. 1576/89 and Article 6 of Council Regulation (EEC) No. 1601/91 respectively lay down the rules concerning the use of geographical indications in relation to spirit drinks or aromatized wines from the Community, the list of which is contained in annexes to these Regulations. Regulation (EC) No. 3378/94 has modified the provisions concerning spirits and aromatized wines. It modifies the above-mentioned Regulation No. 1601/91, which lays down rules for the definition, description and presentation of aromatized wines, by adding Article 10a, which implements Article 23.1 of the TRIPS Agreement. It also modifies the above-mentioned Regulation No. 1576/89 on the description and presentation of spirit drinks, by adding an Article 11a, implementing Article 23.1 of the TRIPS Agreement in respect of spirits. In the context of the implementation of the WTO Agreement, Council Regulation (EC) No. 3288/94 has amended Council Regulation (EC) No. 40/94, on the Community trademark. In particular, to Article 7(1) of Regulation No. 40/94, which lays down the absolute grounds for refusal of the registration of a trademark, a paragraph is added to the effect that geographical indications for wines and spirits shall be refused registration if the wines and spirits do not have that origin. Concerning wines, the general rule is contained in Article 40, paragraph 1, first indent of Council Regulation (EEC) No. 2392/89, which envisages that the description and presentation of wines and grape musts, and any form of advertising for such products, must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed as regards, among other things, geographical indications. This provision shall apply even if the indication is used in translation, or with reference to the actual origin, or with additions such as "type", "style", "method", "imitation", "brand" or the like. Other geographical indications in relation to agricultural products and foodstuffs Council Regulation (EEC) No. 2081/92 sets out the procedure for the registration of geographical indications in the Community territory. The procedure contained in Articles 5, 6 and 7 is as follows: (1) A group of producers must submit a detailed application for registration to the competent authority of the Member State, in accordance with the conditions specified in the Regulation. (2) If the application is considered to be in conformity with the Regulation, it shall be referred to the Community authorities, who will verify that the conditions of the Regulation have been formally satisfied and will publish the application in the Official Journal to allow other parties the opportunity to raise objections. (3) If an objection is raised, the final decision on registration is taken by the Commission and the Member States. The Member States are responsible for controlling the application of the Regulation. When a name is registered in conformity with the definitions and the procedure established in the Regulation, it is protected ex officio (against the uses as referred to in Article 13). In addition, Council Directive No. 79/112/EEC of 18 December 1978 (on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer) provides in Article 2(a)(i) that the labelling and methods used must not be such as could mislead the purchaser, inter alia, as to origin or provenance of the foodstuff. This applies also to the presentation of foodstuffs and to advertising . Article 2 of Directive (EEC) No. 84/450 relating to the approximation of laws, regulations and administrative provisions of Member States concerning misleading advertising, provides for a definition of misleading advertising which may result in unfair competition by reason of its deceptive nature. Article 3 considers, in particular, any information it contains concerning geographical or commercial origin as relevant criterion in determining whether advertising is misleading. Article 4 deals with the legal means Member States shall provide for the control of misleading advertising in the interest of consumers as well as competitors and the general public.

No, at Community level there exist different regimes for the protection of geographical indications (see also the reply to question no. 1): Wines: Regulation (EEC) No. 823/87 and No. 2392/89 laying down special provisions relating to quality wines produced in specified regions; Spirits: Regulation (EEC) No. 1576/89 laying down general rules on the definition, description and presentation of spirit drinks; Table wines: Regulation (EEC) No. 2392/89 establishing general rules for the designation and presentation of wines and grape musts; Regulation (EEC) No. 822/87 on the common organisation of the market in wine; Other agricultural products and foodstuffs: Regulation (EEC) No. 2081/92 on the protection of geographical indications and designations of origin for agricultural products. In addition, Article 2 of Directive No. 79/112 applies.

No, not at a Community level.

The following provisions have been introduced to ensure that the protection of geographical indications required by Article 22 and 23 of the TRIPS Agreement is correctly implemented (see also the reply to question no. 1): Wines : Article 72a of Regulation (EEC) No. 822/87;2 Spirits : Article 11a of Regulation (EEC) No. 1576/89;2 Aromatised wines : Article 10a of Regulation (EEC) No. 1601/91.2 As regards other agricultural products and foodstuffs, no modification was needed for Regulation (EEC) No. 2081/92.3 Directive No. 79/112 was likewise not modified.

Please see the replies to the previous questions.

[Answer 1: Wines and spirits At Community level the recognition of a geographical indication for wines requires its recognition by the Producer Member State as well as registration and publication in the Official Journal of the European Communities (Article 1, paragraph 3 of Regulation No. 823/87; Article 72, paragraph 2 of Regulation (EEC) No. 822/87; and Article 2, paragraph 3, point (i) of Regulation (EEC) No. 2392/89). This system provides protection ex officio. In addition, Council Regulation (EEC) No. 823/87 lays down the conditions which must be respected by Member States for the recognition of quality wines produced in specified regions (quality wines PSR = produced in specified regions). The provisions of the Regulation concern, in particular, the following: demarcation of the area of production; vine varieties; minimum alcohol content; yield per hectare; analysis and assessment of organoleptic characteristics, etc. (Article 2). Member States adopt the specific provisions and recognize the geographical indications of the wines produced in their territory (Article 3.1). The Commission is responsible for the publication of all the geographical indications recognized by the Member States. Council Regulation (EC) No. 3290/94, Annex XVI, modifies Council Regulation (EEC) No. 822/87, which establishes a common market organization for wine, by adding Article 72a, which implements Article 23.1 of the TRIPS Agreement. For spirit drinks and aromatized wines, Article 5 of Council Regulation (EEC) No. 1576/89 and Article 6 of Council Regulation (EEC) No. 1601/91 respectively lay down the rules concerning the use of geographical indications in relation to spirit drinks or aromatized wines from the Community, the list of which is contained in annexes to these Regulations. Regulation (EC) No. 3378/94 has modified the provisions concerning spirits and aromatized wines. It modifies the above-mentioned Regulation No. 1601/91, which lays down rules for the definition, description and presentation of aromatized wines, by adding Article 10a, which implements Article 23.1 of the TRIPS Agreement. It also modifies the above-mentioned Regulation No. 1576/89 on the description and presentation of spirit drinks, by adding an Article 11a, implementing Article 23.1 of the TRIPS Agreement in respect of spirits. In the context of the implementation of the WTO Agreement, Council Regulation (EC) No. 3288/94 has amended Council Regulation (EC) No. 40/94, on the Community trademark. In particular, to Article 7(1) of Regulation No. 40/94, which lays down the absolute grounds for refusal of the registration of a trademark, a paragraph is added to the effect that geographical indications for wines and spirits shall be refused registration if the wines and spirits do not have that origin. Concerning wines, the general rule is contained in Article 40, paragraph 1, first indent of Council Regulation (EEC) No. 2392/89, which envisages that the description and presentation of wines and grape musts, and any form of advertising for such products, must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed as regards, among other things, geographical indications. This provision shall apply even if the indication is used in translation, or with reference to the actual origin, or with additions such as "type", "style", "method", "imitation", "brand" or the like. Other geographical indications in relation to agricultural products and foodstuffs Council Regulation (EEC) No. 2081/92 sets out the procedure for the registration of geographical indications in the Community territory. The procedure contained in Articles 5, 6 and 7 is as follows: (1) A group of producers must submit a detailed application for registration to the competent authority of the Member State, in accordance with the conditions specified in the Regulation. (2) If the application is considered to be in conformity with the Regulation, it shall be referred to the Community authorities, who will verify that the conditions of the Regulation have been formally satisfied and will publish the application in the Official Journal to allow other parties the opportunity to raise objections. (3) If an objection is raised, the final decision on registration is taken by the Commission and the Member States. The Member States are responsible for controlling the application of the Regulation. When a name is registered in conformity with the definitions and the procedure established in the Regulation, it is protected ex officio (against the uses as referred to in Article 13). In addition, Council Directive No. 79/112/EEC of 18 December 1978 (on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer) provides in Article 2(a)(i) that the labelling and methods used must not be such as could mislead the purchaser, inter alia, as to origin or provenance of the foodstuff. This applies also to the presentation of foodstuffs and to advertising . Article 2 of Directive (EEC) No. 84/450 relating to the approximation of laws, regulations and administrative provisions of Member States concerning misleading advertising, provides for a definition of misleading advertising which may result in unfair competition by reason of its deceptive nature. Article 3 considers, in particular, any information it contains concerning geographical or commercial origin as relevant criterion in determining whether advertising is misleading. Article 4 deals with the legal means Member States shall provide for the control of misleading advertising in the interest of consumers as well as competitors and the general public.]

[Answer 2: No, at Community level there exist different regimes for the protection of geographical indications (see also the reply to question no. 1): Wines: Regulation (EEC) No. 823/87 and No. 2392/89 laying down special provisions relating to quality wines produced in specified regions; Spirits: Regulation (EEC) No. 1576/89 laying down general rules on the definition, description and presentation of spirit drinks; Table wines: Regulation (EEC) No. 2392/89 establishing general rules for the designation and presentation of wines and grape musts; Regulation (EEC) No. 822/87 on the common organisation of the market in wine; Other agricultural products and foodstuffs: Regulation (EEC) No. 2081/92 on the protection of geographical indications and designations of origin for agricultural products. In addition, Article 2 of Directive No. 79/112 applies.]

[Answer 3: No, not at a Community level.]

[Answer 4: The following provisions have been introduced to ensure that the protection of geographical indications required by Article 22 and 23 of the TRIPS Agreement is correctly implemented (see also the reply to question no. 1): Wines : Article 72a of Regulation (EEC) No. 822/87;2 Spirits : Article 11a of Regulation (EEC) No. 1576/89;2 Aromatised wines : Article 10a of Regulation (EEC) No. 1601/91.2 As regards other agricultural products and foodstuffs, no modification was needed for Regulation (EEC) No. 2081/92.3 Directive No. 79/112 was likewise not modified.]

Wines Champagne, Sherry, Porto, Chianti, Samos, Rheinhessen, Moselle luxembourgeoise, Mittelburgenland, etc... As a first step such geographical indications are recognised at the level of a Member State. Subsequently, they are recognised at a Community level following Article 1, paragraph 3 of Regulation (EEC) No. 823/87. They are protected according to Article 15, paragraph 4 of Regulation (EEC) No. 823/87 and Article 40 of Regulation (EEC) No. 2392/89. They are registered and published in the Official Journal of the European Communities No. 344, p. 110. Spirits Cognac, Brandy de Jerez, Grappa di Barolo, Berliner Kümmel, Genièvre Flandres Artois, Scotch Whisky, Irish Whiskey, Tsikoudia from Crete, etc... They are recognized by the Community pursuant to Article 5, paragraph 3 of Regulation (EEC) No. 1576/89. They are protected according to Article 5(3)(b) of the said Regulation. They are registered and published in Annex II of that same Regulation. Other products Scottish beef, Cabrales, Roquefort, Gorgonzola, Azeite de Moura, Olive de Kalamata, Opperdoezer Ronde, Wachauer Marille, Danablu, Lübecker Marzipan, Svecia, etc ... Registration pursuant to Article 17 of Regulation (EEC) No. 2081/92 - simplified procedure for names already legally protected or established by use in Member States. Queijo do Pico, Coquille Saint-Jacques des Côtes-d’Armor, Jamón de Huelva, Lammefjordsgulerod, etc ... Registration pursuant to Articles 5, 6 and 7 of Regulation (EEC) No. 2081/92 - normal procedure. Protection and criteria required in referred Articles 2 (definitions) and 4 (specification) are the same in both procedures.

Yes, for other agricultural products and other foodstuffs pursuant to Regulation (EEC) No. 2081/92. Article 13, paragraph 1(b) provides that registered names shall be protected against "any measure, imitation or evocation, even if the true origin of the product is indicated...".

Please refer to the reply to question no. 1 under I above.

[Answer 1: Wines and spirits At Community level the recognition of a geographical indication for wines requires its recognition by the Producer Member State as well as registration and publication in the Official Journal of the European Communities (Article 1, paragraph 3 of Regulation No. 823/87; Article 72, paragraph 2 of Regulation (EEC) No. 822/87; and Article 2, paragraph 3, point (i) of Regulation (EEC) No. 2392/89). This system provides protection ex officio. In addition, Council Regulation (EEC) No. 823/87 lays down the conditions which must be respected by Member States for the recognition of quality wines produced in specified regions (quality wines PSR = produced in specified regions). The provisions of the Regulation concern, in particular, the following: demarcation of the area of production; vine varieties; minimum alcohol content; yield per hectare; analysis and assessment of organoleptic characteristics, etc. (Article 2). Member States adopt the specific provisions and recognize the geographical indications of the wines produced in their territory (Article 3.1). The Commission is responsible for the publication of all the geographical indications recognized by the Member States. Council Regulation (EC) No. 3290/94, Annex XVI, modifies Council Regulation (EEC) No. 822/87, which establishes a common market organization for wine, by adding Article 72a, which implements Article 23.1 of the TRIPS Agreement. For spirit drinks and aromatized wines, Article 5 of Council Regulation (EEC) No. 1576/89 and Article 6 of Council Regulation (EEC) No. 1601/91 respectively lay down the rules concerning the use of geographical indications in relation to spirit drinks or aromatized wines from the Community, the list of which is contained in annexes to these Regulations. Regulation (EC) No. 3378/94 has modified the provisions concerning spirits and aromatized wines. It modifies the above-mentioned Regulation No. 1601/91, which lays down rules for the definition, description and presentation of aromatized wines, by adding Article 10a, which implements Article 23.1 of the TRIPS Agreement. It also modifies the above-mentioned Regulation No. 1576/89 on the description and presentation of spirit drinks, by adding an Article 11a, implementing Article 23.1 of the TRIPS Agreement in respect of spirits. In the context of the implementation of the WTO Agreement, Council Regulation (EC) No. 3288/94 has amended Council Regulation (EC) No. 40/94, on the Community trademark. In particular, to Article 7(1) of Regulation No. 40/94, which lays down the absolute grounds for refusal of the registration of a trademark, a paragraph is added to the effect that geographical indications for wines and spirits shall be refused registration if the wines and spirits do not have that origin. Concerning wines, the general rule is contained in Article 40, paragraph 1, first indent of Council Regulation (EEC) No. 2392/89, which envisages that the description and presentation of wines and grape musts, and any form of advertising for such products, must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed as regards, among other things, geographical indications. This provision shall apply even if the indication is used in translation, or with reference to the actual origin, or with additions such as "type", "style", "method", "imitation", "brand" or the like. Other geographical indications in relation to agricultural products and foodstuffs Council Regulation (EEC) No. 2081/92 sets out the procedure for the registration of geographical indications in the Community territory. The procedure contained in Articles 5, 6 and 7 is as follows: (1) A group of producers must submit a detailed application for registration to the competent authority of the Member State, in accordance with the conditions specified in the Regulation. (2) If the application is considered to be in conformity with the Regulation, it shall be referred to the Community authorities, who will verify that the conditions of the Regulation have been formally satisfied and will publish the application in the Official Journal to allow other parties the opportunity to raise objections. (3) If an objection is raised, the final decision on registration is taken by the Commission and the Member States. The Member States are responsible for controlling the application of the Regulation. When a name is registered in conformity with the definitions and the procedure established in the Regulation, it is protected ex officio (against the uses as referred to in Article 13). In addition, Council Directive No. 79/112/EEC of 18 December 1978 (on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer) provides in Article 2(a)(i) that the labelling and methods used must not be such as could mislead the purchaser, inter alia, as to origin or provenance of the foodstuff. This applies also to the presentation of foodstuffs and to advertising . Article 2 of Directive (EEC) No. 84/450 relating to the approximation of laws, regulations and administrative provisions of Member States concerning misleading advertising, provides for a definition of misleading advertising which may result in unfair competition by reason of its deceptive nature. Article 3 considers, in particular, any information it contains concerning geographical or commercial origin as relevant criterion in determining whether advertising is misleading. Article 4 deals with the legal means Member States shall provide for the control of misleading advertising in the interest of consumers as well as competitors and the general public.]

Wines Quality wine produced in a specified region (PSR): "specified region" is defined as a wine-growing area or combination of wine-growing areas which produces wine possessing special quality characteristics (Article 3, paragraph 1). It is designed by its geographical name (Article 15, paragraph 3 of Regulation (EEC) No. 823/87). Some exceptions are permitted and enumerated in this Article. Table wine designated with a geographical unit which is defined as a small locality or group of such localities, a local administrative area or part thereof, a wine-group sub-region or part thereof or a region other than a specified region which is reserved for table wines meeting certain production requirements, particularly as regards vine varieties, minimum natural alcoholic strength by volume and organoleptic characteristics (Article 4, paragraphs 1 and 3 of Regulation (EEC) No. 2392/89). Member States may make the use of a geographical ascription for designating a table wine conditional, in particular, on the wine having been produced wholly from certain clearly specified vine varieties and coming exclusively from the territory, precisely demarcated, whose name it bears (Article 72, paragraph 2 Regulation (EEC) No. 822/87). Spirits On a case-by-case basis as listed in Article 5(3)(b) in conjunction with Annex II of Regulation (EEC) No. 1576/89. Other products Regulation (EEC) No. 2081/92 provides in Article 2 for two definitions: "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. "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. Furthermore, Article 2, paragraph 3 of Regulation (EEC) No. 2081/92 provides for the protection of certain traditional geographical or non-geographical names designating an agricultural product or foodstuff originating in a region or a specific place which fulfil the conditions set out for designations of origin. Geographical indications and designations of origin are protected in the same way.

Such definitions comprise geographical indications which are directly linked to the region of origin. They identify products of a certain quality, notoriety or reputation which are linked to that region of origin.

Quality wine Each Member State follows specific criteria subject to minimum Community rules (Article 2 of Regulation No. 823/87). At Community level it is provided that the traditional conditions of production must be taken into account and are subject to at least the following criteria: - determination of the area of production, - vine varieties, - cultivation methods, - wine making methods, - minimum natural alcoholic strength, - yield per hectare, - analysis and assessment of organoleptic characteristics. Other products For registration, every name notified by Member States to the Commission must be in conformity with the criteria established in the definitions (see the reply to question no. 8 above) and specified by certain elements (name, description of the product, definition of the area, evidence of the origin, description of the method, details bearing out the link with geographical environment or geographical origin, details of the inspection structures, the specific labelling details and any requirements laid down by Community and/or national provisions).

Wines Yes. Traditional conditions of production take into account the human creativity involved in the making of a specific product and therefore include human factors. Other products Human factors can be one of the essential criteria provided for in Article 2 of Regulation (EEC) No. 2081/92 which justify the registration of a name.

No.

The authority lies in the competence of Member States. However, they are obliged to respect the definition of specified regions and the precise demarcation of these regions. Other products Groups of producers applying for registration must define the specification (and geographical region or area) notified to the Member State in question and subsequently to the Commission.

Wines Yes, the general principle for the products of the wine sector is that the geographical name can be used only to designate products of the region to which the name had been assigned according to national and Community legislation (Article 15, paragraph 4 of Regulation (EEC) No. 823/87). With respect to imported wines, paragraphs 2 and 3 of Article 29 of Regulation (EEC) No. 2392/89 apply the same general principle and provide for exceptions only in the case where the name is used in accordance with traditional and consistent usage and on condition that its use is governed by rules in the country concerned. Due regard must be given to the practical risk of confusion. Other products For Member States, if the application concerns a name indicating a geographical area also situated in another Member State, that Member State shall be consulted before any decision is taken (Article 5, paragraph 5 of Regulation (EEC) No. 2081/92). The question of a homonymous geographical indication is also a criterion for objection to the registration (Article 7, paragraph 3). For third countries, if a protected name of a third country is identical to a name protected in the Community, registration shall be granted with due regard for local and traditional usage and the practical risks of confusion. Use of such names shall be authorized only if the country of origin of the product is clearly and visibly indicated on the label (Article 12, paragraph 2).

Yes. Wines Article 72a of Regulation (EEC) No. 822/87; Article 40, paragraph 2 of Regulation (EEC) No. 2392/89; Article 61, paragraphs 1 and 2 of Regulation (EEC) No. 822/87. Aromatised wines Article 10a of Regulation (EEC) No. 1601/90. Spirits Article 11a of Regulation (EEC) No. 1576/89. Other products Article 12 of Regulation (EEC) No. 2081/92. In addition, Article 2 of Directive No. 79/112 prohibits misleading information as regards origin or provenance. This must be understood as applying to origin or provenance referring to third countries as well.

The principle of protection of a geographical indication is recognition and protection in the country of origin. However, the Directives on labelling and advertising always apply independently of the recognition of a geographical indication in the country of origin.

Please refer to the reply to question no. 8 under I above. With respect to the term "indication of source", a definition does not exist. However, Council Directive No. 79/112/EEC of 18 December 1978 (on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer) provides in Article 2(a)(i) that the labelling and methods used must not be such as could mislead the purchaser, inter alia, as to origin or provenance of the foodstuff. This applies also to the presentation of foodstuffs and to advertising.

[Answer 8: Wines Quality wine produced in a specified region (PSR): "specified region" is defined as a wine-growing area or combination of wine-growing areas which produces wine possessing special quality characteristics (Article 3, paragraph 1). It is designed by its geographical name (Article 15, paragraph 3 of Regulation (EEC) No. 823/87). Some exceptions are permitted and enumerated in this Article. Table wine designated with a geographical unit which is defined as a small locality or group of such localities, a local administrative area or part thereof, a wine-group sub-region or part thereof or a region other than a specified region which is reserved for table wines meeting certain production requirements, particularly as regards vine varieties, minimum natural alcoholic strength by volume and organoleptic characteristics (Article 4, paragraphs 1 and 3 of Regulation (EEC) No. 2392/89). Member States may make the use of a geographical ascription for designating a table wine conditional, in particular, on the wine having been produced wholly from certain clearly specified vine varieties and coming exclusively from the territory, precisely demarcated, whose name it bears (Article 72, paragraph 2 Regulation (EEC) No. 822/87). Spirits On a case-by-case basis as listed in Article 5(3)(b) in conjunction with Annex II of Regulation (EEC) No. 1576/89. Other products Regulation (EEC) No. 2081/92 provides in Article 2 for two definitions: "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. "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. Furthermore, Article 2, paragraph 3 of Regulation (EEC) No. 2081/92 provides for the protection of certain traditional geographical or non-geographical names designating an agricultural product or foodstuff originating in a region or a specific place which fulfil the conditions set out for designations of origin. Geographical indications and designations of origin are protected in the same way.]

Please see the reply to question no. 14 under I above.

[Answer 14: Wines Yes, the general principle for the products of the wine sector is that the geographical name can be used only to designate products of the region to which the name had been assigned according to national and Community legislation (Article 15, paragraph 4 of Regulation (EEC) No. 823/87). With respect to imported wines, paragraphs 2 and 3 of Article 29 of Regulation (EEC) No. 2392/89 apply the same general principle and provide for exceptions only in the case where the name is used in accordance with traditional and consistent usage and on condition that its use is governed by rules in the country concerned. Due regard must be given to the practical risk of confusion. Other products For Member States, if the application concerns a name indicating a geographical area also situated in another Member State, that Member State shall be consulted before any decision is taken (Article 5, paragraph 5 of Regulation (EEC) No. 2081/92). The question of a homonymous geographical indication is also a criterion for objection to the registration (Article 7, paragraph 3). For third countries, if a protected name of a third country is identical to a name protected in the Community, registration shall be granted with due regard for local and traditional usage and the practical risks of confusion. Use of such names shall be authorized only if the country of origin of the product is clearly and visibly indicated on the label (Article 12, paragraph 2).]

Wines The recognition must be made by a governmental organisation. The right of using a geographical indication is reserved for the professionals who are established in the area and who respect the conditions of production already established and recognised. Other products Pursuant to Article 5 of Regulation (EEC) No. 2081/92, only a group of producers and/or processors working with the product shall be entitled to apply for registration.

Wines Each Member State appoints the competent authority to protect geographical indications (Article 16 of Regulation (EEC) No. 823/87). Other products After the entry into force of Regulation (EEC) No. 2081/92, recognition of geographical indications or designations of origin can be obtained only through a Community procedure.

Wines and spirits It lies in the competence of Member States which must respect Community law for wines (Regulation (EEC) No. 823/87) and spirits (Regulation (EEC) 1576/89). Other products Registration pursuant to Regulation (EEC) No. 2081/92 is only granted upon request. In accordance with Article 5, a group or a natural or legal person (producers and/or processors working with the product) shall be entitled to apply for registration.

This lies in the competence of Member States. At Community level there are no fees involved in the application and maintenance of rights in a geographical indication. Other products There are no fees provided for in Regulation (EEC) No. 2081/92.

Wines No. Please see the reply to question no. 10 above. Other products Please see the answer to question No. 10 above.

[Answer 10: Quality wine Each Member State follows specific criteria subject to minimum Community rules (Article 2 of Regulation No. 823/87). At Community level it is provided that the traditional conditions of production must be taken into account and are subject to at least the following criteria: - determination of the area of production, - vine varieties, - cultivation methods, - wine making methods, - minimum natural alcoholic strength, - yield per hectare, - analysis and assessment of organoleptic characteristics. Other products For registration, every name notified by Member States to the Commission must be in conformity with the criteria established in the definitions (see the reply to question no. 8 above) and specified by certain elements (name, description of the product, definition of the area, evidence of the origin, description of the method, details bearing out the link with geographical environment or geographical origin, details of the inspection structures, the specific labelling details and any requirements laid down by Community and/or national provisions).]

Please see the answer to question no. 10 above.

[Answer 10: Quality wine Each Member State follows specific criteria subject to minimum Community rules (Article 2 of Regulation No. 823/87). At Community level it is provided that the traditional conditions of production must be taken into account and are subject to at least the following criteria: - determination of the area of production, - vine varieties, - cultivation methods, - wine making methods, - minimum natural alcoholic strength, - yield per hectare, - analysis and assessment of organoleptic characteristics. Other products For registration, every name notified by Member States to the Commission must be in conformity with the criteria established in the definitions (see the reply to question no. 8 above) and specified by certain elements (name, description of the product, definition of the area, evidence of the origin, description of the method, details bearing out the link with geographical environment or geographical origin, details of the inspection structures, the specific labelling details and any requirements laid down by Community and/or national provisions).]

Wines It is the competence of Member States. However, the applicants must supply all necessary information with respect to the criteria listed in the answer to question no. 10 above. Other products Please see the answer to question no. 10 above.

[Answer 10: Quality wine Each Member State follows specific criteria subject to minimum Community rules (Article 2 of Regulation No. 823/87). At Community level it is provided that the traditional conditions of production must be taken into account and are subject to at least the following criteria: - determination of the area of production, - vine varieties, - cultivation methods, - wine making methods, - minimum natural alcoholic strength, - yield per hectare, - analysis and assessment of organoleptic characteristics. Other products For registration, every name notified by Member States to the Commission must be in conformity with the criteria established in the definitions (see the reply to question no. 8 above) and specified by certain elements (name, description of the product, definition of the area, evidence of the origin, description of the method, details bearing out the link with geographical environment or geographical origin, details of the inspection structures, the specific labelling details and any requirements laid down by Community and/or national provisions).]

Wines This is the competence of Member States. Other products Please see the answer to question no. 10 above.

[Answer 10: Quality wine Each Member State follows specific criteria subject to minimum Community rules (Article 2 of Regulation No. 823/87). At Community level it is provided that the traditional conditions of production must be taken into account and are subject to at least the following criteria: - determination of the area of production, - vine varieties, - cultivation methods, - wine making methods, - minimum natural alcoholic strength, - yield per hectare, - analysis and assessment of organoleptic characteristics. Other products For registration, every name notified by Member States to the Commission must be in conformity with the criteria established in the definitions (see the reply to question no. 8 above) and specified by certain elements (name, description of the product, definition of the area, evidence of the origin, description of the method, details bearing out the link with geographical environment or geographical origin, details of the inspection structures, the specific labelling details and any requirements laid down by Community and/or national provisions).]

Wines It is the competence of Member States. As a general rule the following motives for opposition are put forward: - the criteria enumerated in the reply to question no. 10 above are not fulfilled, - legitimate interests of someone are damaged. Other products After verification of the file concerning the name notified for registration, the Commission publishes in the Official Journal of the European Communities the principal elements of the application. This first publication gives a right of objection. A statement of objection shall be admissible only if it concerns established criteria.

Wines and spirits It is the competence of Member States, but, generally, any legal or natural person who considers his/her legitimate interests are damaged can oppose the recognition of a geographical indication. Other products Member States or any legitimately concerned natural or legal person.

The following answer is based on the understanding that the question refers to the possibility of "recognition" of a geographical indication or appellation of origin of a third country in the sense of "participation in existing domestic regimes providing for positive recognition (positive lists)". It does not refer to "protection" within the meaning of the TRIPS Agreement. With respect to the latter, please see the replies to questions nos. 4 and 15 above. Wines and spirits Inclusion in a positive list is possible by agreement. Other products The recognition of geographical indications or designations of origin of foreign countries pursuant to Regulation (EEC) No. 2081/92 can be obtained in accordance with Article 12: - by agreement - by the procedure established in the Regulation as regards application for recognition. The same conditions as for EC products apply.

[Answer 4: The following provisions have been introduced to ensure that the protection of geographical indications required by Article 22 and 23 of the TRIPS Agreement is correctly implemented (see also the reply to question no. 1): Wines : Article 72a of Regulation (EEC) No. 822/87;2 Spirits : Article 11a of Regulation (EEC) No. 1576/89;2 Aromatised wines : Article 10a of Regulation (EEC) No. 1601/91.2 As regards other agricultural products and foodstuffs, no modification was needed for Regulation (EEC) No. 2081/92.3 Directive No. 79/112 was likewise not modified.]

[Answer 15: Yes. Wines Article 72a of Regulation (EEC) No. 822/87; Article 40, paragraph 2 of Regulation (EEC) No. 2392/89; Article 61, paragraphs 1 and 2 of Regulation (EEC) No. 822/87. Aromatised wines Article 10a of Regulation (EEC) No. 1601/90. Spirits Article 11a of Regulation (EEC) No. 1576/89. Other products Article 12 of Regulation (EEC) No. 2081/92. In addition, Article 2 of Directive No. 79/112 prohibits misleading information as regards origin or provenance. This must be understood as applying to origin or provenance referring to third countries as well.]

The recognition is unlimited.

There is no need for renewing or reaffirming the recognition of a geographical indication. Once recognised the protection is unlimited. With respect to the "fees", see the answer to question no. 20 above.

[Answer 20: This lies in the competence of Member States. At Community level there are no fees involved in the application and maintenance of rights in a geographical indication. Other products There are no fees provided for in Regulation (EEC) No. 2081/92.]

This condition is not explicitly contained in EC legislation, but the European Commission considers that a geographical indication must be used. Use would be determined on a case-by-case basis if the question arose.

No. There is no specified limit for non-use.

This is the competence of Member States via their control authorities which are appointed by them.

This is the competence of Member States via their control authorities.

Wines This is the competence of Member States. Other products Member States have to apply protection ex officio by judicial and administrative bodies (Article 13 of Regulation (EEC) No. 2081/92).

Wines This lies in the competence of Member States. Other products Article 13 of Regulation (EEC) No. 2081/92 lists the situations in which registered names are protected. As this Regulation has direct effect in the territory of the Member States, the competent authorities of Member States must guarantee the protection granted by this provision as follows: - by national authorities, ex officio (Article 13 of Regulation (EEC) No. 2081/92), - by the initiative of a natural or legal person (Article 13 of Regulation (EEC) No. 2081/92), - by the initiative of a Member State (Article 11 of Regulation (EEC) No. 2081/92).

Wines and spirits This lies in the competence of Member States. Everybody who meets the established criteria has the right to use the geographical indication. Other products Everybody established in the geographical area and who meets conditions of the specification has the right to use the registered name.

Wines Please see the reply to question no. 32 above. Other products Anybody established in the geographical area and who meets the conditions of the specifications has the right to use the registered name. In other words, a prior authorization is not needed.

[Answer 32: This is the competence of Member States via their control authorities which are appointed by them.]

This is the competence of Member States. Please see also the reply to question no. 20 above.

[Answer 20: This lies in the competence of Member States. At Community level there are no fees involved in the application and maintenance of rights in a geographical indication. Other products There are no fees provided for in Regulation (EEC) No. 2081/92.]

Wines This lies in the competence of Member States. Other products Member States’ judicial or administrative bodies have to apply Article 13 of Regulation (EEC) No. 2081/92.

Please see the reply to question no. 30 above.

[Answer 30: This condition is not explicitly contained in EC legislation, but the European Commission considers that a geographical indication must be used. Use would be determined on a case-by-case basis if the question arose.]

It would be resolved by the usual administrative or judicial means of resolution of a dispute concerning the application of the relevant EC legislation.

Wines and spirits This is the competence of Member States. Other products Regulation (EEC) No. 2081/92 does not provide for rules in this respect. However, it is interpreted that licences are allowed (within imposed conditions) in favour of producers who are not established in the area in question for stages other than production or transformation.

In the European Union no "grandfathered use" of a geographical indication exists. (For example, Article 5, paragraph 3b of Regulation (EEC) No. 1576/89 establishes that geographical designations are reserved to spirit drinks which acquired their character and qualities in the geographical area indicated.)

The relationship between marks and geographical indications is established at Community level in the following instruments: - Council Directive (EEC) No. 104/89 harmonising Member States’ legislation concerning trademarks excludes the registration of a trademark that is made up exclusively of a geographical indication (Article 3c) or that can, by nature, mislead the public, e.g., on the geographical origin of the product (Article 3g), - Regulation (EC) No. 3288/94 amending Regulation (EC) No. 40/94 on the Community trademark provides in Article 7 that the Harmonization Office in Alicante shall refuse to register an application for the registration of a Community trade mark: (1) which consists exclusively of an indication which may serve, in trade, to designate the geographical origin of goods, or (2) for wines, which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical identifying spirits with respect to such wines or spirits not having that origin. Third parties may initiate an invalidity procedure against a registered Community trademark before the Harmonization Office on the same grounds, pursuant to Article 51 of the said Regulation. - Regulation (EEC) No 2392/89 establishing general rules concerning the designation and presentation of wines defines more precisely in Article 40, paragraph 2 the corresponding situations from a trademark angle. Furthermore, there are special provisions for well-known registered brand names. - Article 13 of Regulation (EEC) No. 2333/92 establishing general rules concerning the designation and presentation of sparkling wines. There are also special provisions for well-known registered brand names. - Article 14 of Regulation (EEC) No 2081/92 concerning the protection of geographical indications and designations of origin for agricultural products and foodstuffs. This provision establishes the following: (1) a geographical indication is not registered where, in the light of a trademark’s reputation, renown and length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product; (2) when a geographical indication has been registered, a trademark attempting to evoke or to usurp the geographical indication shall be refused; (3) the use of a trademark evoking a geographical indication and registered before this geographical indication may continue if the trademark was registered in good faith and if the appropriate provisions of Directive (EEC) No. 89/104 have been complied with.

Please see the reply to question no. 44 above.

[Answer 44: The relationship between marks and geographical indications is established at Community level in the following instruments: - Council Directive (EEC) No. 104/89 harmonising Member States’ legislation concerning trademarks excludes the registration of a trademark that is made up exclusively of a geographical indication (Article 3c) or that can, by nature, mislead the public, e.g., on the geographical origin of the product (Article 3g), - Regulation (EC) No. 3288/94 amending Regulation (EC) No. 40/94 on the Community trademark provides in Article 7 that the Harmonization Office in Alicante shall refuse to register an application for the registration of a Community trade mark: (1) which consists exclusively of an indication which may serve, in trade, to designate the geographical origin of goods, or (2) for wines, which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical identifying spirits with respect to such wines or spirits not having that origin. Third parties may initiate an invalidity procedure against a registered Community trademark before the Harmonization Office on the same grounds, pursuant to Article 51 of the said Regulation. - Regulation (EEC) No 2392/89 establishing general rules concerning the designation and presentation of wines defines more precisely in Article 40, paragraph 2 the corresponding situations from a trademark angle. Furthermore, there are special provisions for well-known registered brand names. - Article 13 of Regulation (EEC) No. 2333/92 establishing general rules concerning the designation and presentation of sparkling wines. There are also special provisions for well-known registered brand names. - Article 14 of Regulation (EEC) No 2081/92 concerning the protection of geographical indications and designations of origin for agricultural products and foodstuffs. This provision establishes the following: (1) a geographical indication is not registered where, in the light of a trademark’s reputation, renown and length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product; (2) when a geographical indication has been registered, a trademark attempting to evoke or to usurp the geographical indication shall be refused; (3) the use of a trademark evoking a geographical indication and registered before this geographical indication may continue if the trademark was registered in good faith and if the appropriate provisions of Directive (EEC) No. 89/104 have been complied with.]

Please see the reply to question no. 44 above.

[Answer 44: The relationship between marks and geographical indications is established at Community level in the following instruments: - Council Directive (EEC) No. 104/89 harmonising Member States’ legislation concerning trademarks excludes the registration of a trademark that is made up exclusively of a geographical indication (Article 3c) or that can, by nature, mislead the public, e.g., on the geographical origin of the product (Article 3g), - Regulation (EC) No. 3288/94 amending Regulation (EC) No. 40/94 on the Community trademark provides in Article 7 that the Harmonization Office in Alicante shall refuse to register an application for the registration of a Community trade mark: (1) which consists exclusively of an indication which may serve, in trade, to designate the geographical origin of goods, or (2) for wines, which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical identifying spirits with respect to such wines or spirits not having that origin. Third parties may initiate an invalidity procedure against a registered Community trademark before the Harmonization Office on the same grounds, pursuant to Article 51 of the said Regulation. - Regulation (EEC) No 2392/89 establishing general rules concerning the designation and presentation of wines defines more precisely in Article 40, paragraph 2 the corresponding situations from a trademark angle. Furthermore, there are special provisions for well-known registered brand names. - Article 13 of Regulation (EEC) No. 2333/92 establishing general rules concerning the designation and presentation of sparkling wines. There are also special provisions for well-known registered brand names. - Article 14 of Regulation (EEC) No 2081/92 concerning the protection of geographical indications and designations of origin for agricultural products and foodstuffs. This provision establishes the following: (1) a geographical indication is not registered where, in the light of a trademark’s reputation, renown and length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product; (2) when a geographical indication has been registered, a trademark attempting to evoke or to usurp the geographical indication shall be refused; (3) the use of a trademark evoking a geographical indication and registered before this geographical indication may continue if the trademark was registered in good faith and if the appropriate provisions of Directive (EEC) No. 89/104 have been complied with.]

Please see the reply to question no. 44 under I above.

[Answer 44: The relationship between marks and geographical indications is established at Community level in the following instruments: - Council Directive (EEC) No. 104/89 harmonising Member States’ legislation concerning trademarks excludes the registration of a trademark that is made up exclusively of a geographical indication (Article 3c) or that can, by nature, mislead the public, e.g., on the geographical origin of the product (Article 3g), - Regulation (EC) No. 3288/94 amending Regulation (EC) No. 40/94 on the Community trademark provides in Article 7 that the Harmonization Office in Alicante shall refuse to register an application for the registration of a Community trade mark: (1) which consists exclusively of an indication which may serve, in trade, to designate the geographical origin of goods, or (2) for wines, which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical identifying spirits with respect to such wines or spirits not having that origin. Third parties may initiate an invalidity procedure against a registered Community trademark before the Harmonization Office on the same grounds, pursuant to Article 51 of the said Regulation. - Regulation (EEC) No 2392/89 establishing general rules concerning the designation and presentation of wines defines more precisely in Article 40, paragraph 2 the corresponding situations from a trademark angle. Furthermore, there are special provisions for well-known registered brand names. - Article 13 of Regulation (EEC) No. 2333/92 establishing general rules concerning the designation and presentation of sparkling wines. There are also special provisions for well-known registered brand names. - Article 14 of Regulation (EEC) No 2081/92 concerning the protection of geographical indications and designations of origin for agricultural products and foodstuffs. This provision establishes the following: (1) a geographical indication is not registered where, in the light of a trademark’s reputation, renown and length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product; (2) when a geographical indication has been registered, a trademark attempting to evoke or to usurp the geographical indication shall be refused; (3) the use of a trademark evoking a geographical indication and registered before this geographical indication may continue if the trademark was registered in good faith and if the appropriate provisions of Directive (EEC) No. 89/104 have been complied with.]

Member States have to apply relevant EC legislation through judicial and administrative bodies and procedures. Article 72a of Council Regulation (EEC) No. 822/87 envisages that Member States shall take all necessary measures to enable interested parties to prevent, on the terms stipulated in Articles 23 and 24 of the TRIPS Agreement, the use in the Community of a geographical indication attached to the products referred to in Article 1, paragraph 2(b) of the Regulation for products not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. It is, therefore, Member States who are responsible for providing the legal means for interested parties to prevent the use of a geographical indication for a wine or spirit not originating in the place indicated, in accordance with Article 23.1 of the TRIPS Agreement. Interested parties must seek redress from the national authorities of the EC Member States. Member States' laws lay down the procedures to be followed, the competent authorities involved, the instances of appeal and sanctions or penalties applied by the authorities. Member States' courts may request the European Court of Justice for preliminary rulings on the interpretation of Council Regulation (EEC) No. 822/87 under Article 177 of the Treaty Establishing the European Community. Further, on the measures adopted by EC Member States under Article 23 of the TRIPS Agreement and under Article 72a of Council Regulation (EEC) No. 822/87, Article 11a of Council Regulation (EEC) No. 1576/89 and Article 10a of Council Regulation (EEC) No. 1601/91, as a preliminary remark, one should underline that, pursuant to Council Regulation (EEC) No. 2048/89 laying down general rules on controls in the wine sector, controls on the description and presentation of wine products are subject to common principles and assistance proceedings between a Member State's competent authority and the Commission. Under this Regulation, the control authority designated in one Member State may take protective measures regarding the description, presentation and marketing of a wine sector product. It may request assistance from the Commission or from the competent authority of another Member State. The Commission shall be notified whenever the product which is the subject of the control activities originates in a third country and if the marketing of this product may be of specific interest to other Member States. (a) According to Member States' legislation, interested parties are those damaged or likely to be damaged by the misuse of a geographical indication, i.e. producers entitled to use the geographical indication or their representatives. Before an administrative body or an Ombudsman, "any person" (consumer, importer, retailer, producer, exporter) may file a complaint. However, it is unlikely that national governments from WTO Members may file complaints in a Member State: only Italy provides for such a possibility. National governments from WTO Members are of course free to complain to the European Commission or Member States' governments. (b) In all Member States, redress can be sought through civil proceedings. Therefore, the plaintiff may have to prove direct interest in the claim. Where misuses of geographical indications are subject to criminal penalties, as in Belgium, Germany, France, Italy, Portugal and Spain, an interested party may file a complaint to the police or the public prosecutor, who may then decide to launch a criminal investigation. In Austria, Belgium, Denmark, France, Portugal and the United Kingdom, an interested party may also file a complaint to an administrative authority in the Ministry of Agriculture, Ministry of Economy or local Council according to each Member State's legislation. Finland and Sweden provide for a market jurisdiction where the first instance is the Ombudsman and the appellate body is the Market Court. WTO Member governments may make representations to the European Commission or Member States' governments. (c) The way the entity conducts an investigation depends on where the claim is brought. Before a civil court, the judge relies upon evidence presented by the parties. In cases of criminal investigation, it is conducted "ex officio" by the police or other administrative authority vested with investigative powers by the public prosecutor. When the complaint is made to an administrative authority or to an Ombudsman, the investigator is the authority where the claim is filed. In both situations, the investigator has the power to issue an order to stop the infringement. If the order is not followed, the administrative authority may decide to bring the case before the public prosecutor while the Ombudsman may bring the case to the Market Court in Finland or to the Stockholm City Court in Sweden. The Commission services conduct their investigation upon elements brought by the government of the WTO Member. (d) The final decision is taken according to the procedure. In civil and criminal cases, any decision taken by a court of first instance may be appealed, subject to restrictions concerning the amount of damages in Germany. In administrative enforcement, any action from the administrative authority may be appealed to the Minister and to administrative courts. In Finland, a decision of the Market Court may be appealed only by the defendant. After investigation, the Commission may raise the matter with the Member State where the infringement has taken place. If the Commission considers that a Member State has failed to fulfil an obligation under the European Union Treaty, the Commission shall deliver a reasoned opinion on the matter. The latter may bring the matter before the European Court of Justice, if the Member State concerned does not comply with the opinion within the period laid down by the Commission (Article 169 of the EU Treaty). (e) The administrative authority and the Ombudsman have the power to issue an order to stop the infringement and/or to give adequate information to the consumer. Their decisions are enforceable through public prosecution and court decisions which may provide for penalties in case of non compliance with the order. Any civil court decision may order the defendant to stop the infringement and to pay damages. In criminal cases, the decision of the court is enforced "ex officio" and may consist of jail penalties, at least in Spain and Germany. Where the European Court of Justice finds that a Member State has failed to implement its obligations under the Treaty and if the European Commission considers that the Member State does not take the necessary measures to comply with the judgement of the Court of Justice, the European Commission shall again bring the matter to the Court of Justice, which may order pecuniary sanctions and periodic penalty payments.

Please see the reply to question no. 47 above.

[Answer 47: Member States have to apply relevant EC legislation through judicial and administrative bodies and procedures. Article 72a of Council Regulation (EEC) No. 822/87 envisages that Member States shall take all necessary measures to enable interested parties to prevent, on the terms stipulated in Articles 23 and 24 of the TRIPS Agreement, the use in the Community of a geographical indication attached to the products referred to in Article 1, paragraph 2(b) of the Regulation for products not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. It is, therefore, Member States who are responsible for providing the legal means for interested parties to prevent the use of a geographical indication for a wine or spirit not originating in the place indicated, in accordance with Article 23.1 of the TRIPS Agreement. Interested parties must seek redress from the national authorities of the EC Member States. Member States' laws lay down the procedures to be followed, the competent authorities involved, the instances of appeal and sanctions or penalties applied by the authorities. Member States' courts may request the European Court of Justice for preliminary rulings on the interpretation of Council Regulation (EEC) No. 822/87 under Article 177 of the Treaty Establishing the European Community. Further, on the measures adopted by EC Member States under Article 23 of the TRIPS Agreement and under Article 72a of Council Regulation (EEC) No. 822/87, Article 11a of Council Regulation (EEC) No. 1576/89 and Article 10a of Council Regulation (EEC) No. 1601/91, as a preliminary remark, one should underline that, pursuant to Council Regulation (EEC) No. 2048/89 laying down general rules on controls in the wine sector, controls on the description and presentation of wine products are subject to common principles and assistance proceedings between a Member State's competent authority and the Commission. Under this Regulation, the control authority designated in one Member State may take protective measures regarding the description, presentation and marketing of a wine sector product. It may request assistance from the Commission or from the competent authority of another Member State. The Commission shall be notified whenever the product which is the subject of the control activities originates in a third country and if the marketing of this product may be of specific interest to other Member States. (a) According to Member States' legislation, interested parties are those damaged or likely to be damaged by the misuse of a geographical indication, i.e. producers entitled to use the geographical indication or their representatives. Before an administrative body or an Ombudsman, "any person" (consumer, importer, retailer, producer, exporter) may file a complaint. However, it is unlikely that national governments from WTO Members may file complaints in a Member State: only Italy provides for such a possibility. National governments from WTO Members are of course free to complain to the European Commission or Member States' governments. (b) In all Member States, redress can be sought through civil proceedings. Therefore, the plaintiff may have to prove direct interest in the claim. Where misuses of geographical indications are subject to criminal penalties, as in Belgium, Germany, France, Italy, Portugal and Spain, an interested party may file a complaint to the police or the public prosecutor, who may then decide to launch a criminal investigation. In Austria, Belgium, Denmark, France, Portugal and the United Kingdom, an interested party may also file a complaint to an administrative authority in the Ministry of Agriculture, Ministry of Economy or local Council according to each Member State's legislation. Finland and Sweden provide for a market jurisdiction where the first instance is the Ombudsman and the appellate body is the Market Court. WTO Member governments may make representations to the European Commission or Member States' governments. (c) The way the entity conducts an investigation depends on where the claim is brought. Before a civil court, the judge relies upon evidence presented by the parties. In cases of criminal investigation, it is conducted "ex officio" by the police or other administrative authority vested with investigative powers by the public prosecutor. When the complaint is made to an administrative authority or to an Ombudsman, the investigator is the authority where the claim is filed. In both situations, the investigator has the power to issue an order to stop the infringement. If the order is not followed, the administrative authority may decide to bring the case before the public prosecutor while the Ombudsman may bring the case to the Market Court in Finland or to the Stockholm City Court in Sweden. The Commission services conduct their investigation upon elements brought by the government of the WTO Member. (d) The final decision is taken according to the procedure. In civil and criminal cases, any decision taken by a court of first instance may be appealed, subject to restrictions concerning the amount of damages in Germany. In administrative enforcement, any action from the administrative authority may be appealed to the Minister and to administrative courts. In Finland, a decision of the Market Court may be appealed only by the defendant. After investigation, the Commission may raise the matter with the Member State where the infringement has taken place. If the Commission considers that a Member State has failed to fulfil an obligation under the European Union Treaty, the Commission shall deliver a reasoned opinion on the matter. The latter may bring the matter before the European Court of Justice, if the Member State concerned does not comply with the opinion within the period laid down by the Commission (Article 169 of the EU Treaty). (e) The administrative authority and the Ombudsman have the power to issue an order to stop the infringement and/or to give adequate information to the consumer. Their decisions are enforceable through public prosecution and court decisions which may provide for penalties in case of non compliance with the order. Any civil court decision may order the defendant to stop the infringement and to pay damages. In criminal cases, the decision of the court is enforced "ex officio" and may consist of jail penalties, at least in Spain and Germany. Where the European Court of Justice finds that a Member State has failed to implement its obligations under the Treaty and if the European Commission considers that the Member State does not take the necessary measures to comply with the judgement of the Court of Justice, the European Commission shall again bring the matter to the Court of Justice, which may order pecuniary sanctions and periodic penalty payments.]

Please see the reply to question no. 47 above.

[Answer 47: Member States have to apply relevant EC legislation through judicial and administrative bodies and procedures. Article 72a of Council Regulation (EEC) No. 822/87 envisages that Member States shall take all necessary measures to enable interested parties to prevent, on the terms stipulated in Articles 23 and 24 of the TRIPS Agreement, the use in the Community of a geographical indication attached to the products referred to in Article 1, paragraph 2(b) of the Regulation for products not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. It is, therefore, Member States who are responsible for providing the legal means for interested parties to prevent the use of a geographical indication for a wine or spirit not originating in the place indicated, in accordance with Article 23.1 of the TRIPS Agreement. Interested parties must seek redress from the national authorities of the EC Member States. Member States' laws lay down the procedures to be followed, the competent authorities involved, the instances of appeal and sanctions or penalties applied by the authorities. Member States' courts may request the European Court of Justice for preliminary rulings on the interpretation of Council Regulation (EEC) No. 822/87 under Article 177 of the Treaty Establishing the European Community. Further, on the measures adopted by EC Member States under Article 23 of the TRIPS Agreement and under Article 72a of Council Regulation (EEC) No. 822/87, Article 11a of Council Regulation (EEC) No. 1576/89 and Article 10a of Council Regulation (EEC) No. 1601/91, as a preliminary remark, one should underline that, pursuant to Council Regulation (EEC) No. 2048/89 laying down general rules on controls in the wine sector, controls on the description and presentation of wine products are subject to common principles and assistance proceedings between a Member State's competent authority and the Commission. Under this Regulation, the control authority designated in one Member State may take protective measures regarding the description, presentation and marketing of a wine sector product. It may request assistance from the Commission or from the competent authority of another Member State. The Commission shall be notified whenever the product which is the subject of the control activities originates in a third country and if the marketing of this product may be of specific interest to other Member States. (a) According to Member States' legislation, interested parties are those damaged or likely to be damaged by the misuse of a geographical indication, i.e. producers entitled to use the geographical indication or their representatives. Before an administrative body or an Ombudsman, "any person" (consumer, importer, retailer, producer, exporter) may file a complaint. However, it is unlikely that national governments from WTO Members may file complaints in a Member State: only Italy provides for such a possibility. National governments from WTO Members are of course free to complain to the European Commission or Member States' governments. (b) In all Member States, redress can be sought through civil proceedings. Therefore, the plaintiff may have to prove direct interest in the claim. Where misuses of geographical indications are subject to criminal penalties, as in Belgium, Germany, France, Italy, Portugal and Spain, an interested party may file a complaint to the police or the public prosecutor, who may then decide to launch a criminal investigation. In Austria, Belgium, Denmark, France, Portugal and the United Kingdom, an interested party may also file a complaint to an administrative authority in the Ministry of Agriculture, Ministry of Economy or local Council according to each Member State's legislation. Finland and Sweden provide for a market jurisdiction where the first instance is the Ombudsman and the appellate body is the Market Court. WTO Member governments may make representations to the European Commission or Member States' governments. (c) The way the entity conducts an investigation depends on where the claim is brought. Before a civil court, the judge relies upon evidence presented by the parties. In cases of criminal investigation, it is conducted "ex officio" by the police or other administrative authority vested with investigative powers by the public prosecutor. When the complaint is made to an administrative authority or to an Ombudsman, the investigator is the authority where the claim is filed. In both situations, the investigator has the power to issue an order to stop the infringement. If the order is not followed, the administrative authority may decide to bring the case before the public prosecutor while the Ombudsman may bring the case to the Market Court in Finland or to the Stockholm City Court in Sweden. The Commission services conduct their investigation upon elements brought by the government of the WTO Member. (d) The final decision is taken according to the procedure. In civil and criminal cases, any decision taken by a court of first instance may be appealed, subject to restrictions concerning the amount of damages in Germany. In administrative enforcement, any action from the administrative authority may be appealed to the Minister and to administrative courts. In Finland, a decision of the Market Court may be appealed only by the defendant. After investigation, the Commission may raise the matter with the Member State where the infringement has taken place. If the Commission considers that a Member State has failed to fulfil an obligation under the European Union Treaty, the Commission shall deliver a reasoned opinion on the matter. The latter may bring the matter before the European Court of Justice, if the Member State concerned does not comply with the opinion within the period laid down by the Commission (Article 169 of the EU Treaty). (e) The administrative authority and the Ombudsman have the power to issue an order to stop the infringement and/or to give adequate information to the consumer. Their decisions are enforceable through public prosecution and court decisions which may provide for penalties in case of non compliance with the order. Any civil court decision may order the defendant to stop the infringement and to pay damages. In criminal cases, the decision of the court is enforced "ex officio" and may consist of jail penalties, at least in Spain and Germany. Where the European Court of Justice finds that a Member State has failed to implement its obligations under the Treaty and if the European Commission considers that the Member State does not take the necessary measures to comply with the judgement of the Court of Justice, the European Commission shall again bring the matter to the Court of Justice, which may order pecuniary sanctions and periodic penalty payments.]

Yes, in the European Union the publication in the Official Journal of the geographical indications and the legal reference of their recognition is foreseen.

Please see the reply to question no. 47 above.

[Answer 47: Member States have to apply relevant EC legislation through judicial and administrative bodies and procedures. Article 72a of Council Regulation (EEC) No. 822/87 envisages that Member States shall take all necessary measures to enable interested parties to prevent, on the terms stipulated in Articles 23 and 24 of the TRIPS Agreement, the use in the Community of a geographical indication attached to the products referred to in Article 1, paragraph 2(b) of the Regulation for products not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. It is, therefore, Member States who are responsible for providing the legal means for interested parties to prevent the use of a geographical indication for a wine or spirit not originating in the place indicated, in accordance with Article 23.1 of the TRIPS Agreement. Interested parties must seek redress from the national authorities of the EC Member States. Member States' laws lay down the procedures to be followed, the competent authorities involved, the instances of appeal and sanctions or penalties applied by the authorities. Member States' courts may request the European Court of Justice for preliminary rulings on the interpretation of Council Regulation (EEC) No. 822/87 under Article 177 of the Treaty Establishing the European Community. Further, on the measures adopted by EC Member States under Article 23 of the TRIPS Agreement and under Article 72a of Council Regulation (EEC) No. 822/87, Article 11a of Council Regulation (EEC) No. 1576/89 and Article 10a of Council Regulation (EEC) No. 1601/91, as a preliminary remark, one should underline that, pursuant to Council Regulation (EEC) No. 2048/89 laying down general rules on controls in the wine sector, controls on the description and presentation of wine products are subject to common principles and assistance proceedings between a Member State's competent authority and the Commission. Under this Regulation, the control authority designated in one Member State may take protective measures regarding the description, presentation and marketing of a wine sector product. It may request assistance from the Commission or from the competent authority of another Member State. The Commission shall be notified whenever the product which is the subject of the control activities originates in a third country and if the marketing of this product may be of specific interest to other Member States. (a) According to Member States' legislation, interested parties are those damaged or likely to be damaged by the misuse of a geographical indication, i.e. producers entitled to use the geographical indication or their representatives. Before an administrative body or an Ombudsman, "any person" (consumer, importer, retailer, producer, exporter) may file a complaint. However, it is unlikely that national governments from WTO Members may file complaints in a Member State: only Italy provides for such a possibility. National governments from WTO Members are of course free to complain to the European Commission or Member States' governments. (b) In all Member States, redress can be sought through civil proceedings. Therefore, the plaintiff may have to prove direct interest in the claim. Where misuses of geographical indications are subject to criminal penalties, as in Belgium, Germany, France, Italy, Portugal and Spain, an interested party may file a complaint to the police or the public prosecutor, who may then decide to launch a criminal investigation. In Austria, Belgium, Denmark, France, Portugal and the United Kingdom, an interested party may also file a complaint to an administrative authority in the Ministry of Agriculture, Ministry of Economy or local Council according to each Member State's legislation. Finland and Sweden provide for a market jurisdiction where the first instance is the Ombudsman and the appellate body is the Market Court. WTO Member governments may make representations to the European Commission or Member States' governments. (c) The way the entity conducts an investigation depends on where the claim is brought. Before a civil court, the judge relies upon evidence presented by the parties. In cases of criminal investigation, it is conducted "ex officio" by the police or other administrative authority vested with investigative powers by the public prosecutor. When the complaint is made to an administrative authority or to an Ombudsman, the investigator is the authority where the claim is filed. In both situations, the investigator has the power to issue an order to stop the infringement. If the order is not followed, the administrative authority may decide to bring the case before the public prosecutor while the Ombudsman may bring the case to the Market Court in Finland or to the Stockholm City Court in Sweden. The Commission services conduct their investigation upon elements brought by the government of the WTO Member. (d) The final decision is taken according to the procedure. In civil and criminal cases, any decision taken by a court of first instance may be appealed, subject to restrictions concerning the amount of damages in Germany. In administrative enforcement, any action from the administrative authority may be appealed to the Minister and to administrative courts. In Finland, a decision of the Market Court may be appealed only by the defendant. After investigation, the Commission may raise the matter with the Member State where the infringement has taken place. If the Commission considers that a Member State has failed to fulfil an obligation under the European Union Treaty, the Commission shall deliver a reasoned opinion on the matter. The latter may bring the matter before the European Court of Justice, if the Member State concerned does not comply with the opinion within the period laid down by the Commission (Article 169 of the EU Treaty). (e) The administrative authority and the Ombudsman have the power to issue an order to stop the infringement and/or to give adequate information to the consumer. Their decisions are enforceable through public prosecution and court decisions which may provide for penalties in case of non compliance with the order. Any civil court decision may order the defendant to stop the infringement and to pay damages. In criminal cases, the decision of the court is enforced "ex officio" and may consist of jail penalties, at least in Spain and Germany. Where the European Court of Justice finds that a Member State has failed to implement its obligations under the Treaty and if the European Commission considers that the Member State does not take the necessary measures to comply with the judgement of the Court of Justice, the European Commission shall again bring the matter to the Court of Justice, which may order pecuniary sanctions and periodic penalty payments.]

Yes, the European Union has subscribed to several bilateral agreements concerning wine (Australia, Hungary, Bulgaria, Romania) and spirits (USA, Mexico).

There are no other agreements.