When thinking about trade marks, many of us will know that these require to be distinctive for the goods and services which are being provided, i.e. they cannot be descriptive. This means that they cannot detail the location from which the goods or services are being provided.
However, when we think about Champagne or Arbroath Smokies, we know exactly what is being referred to and the origin of these products as well as the reputation and certain qualities which are associated with these products. There are two main protections available to products such as these:
- Protected Geographical Indication products, where one step of production of the product has occurred in the named area; or
- Protected Designation of Origin products, where a product which has been produced in the named area using only materials from that area (‘PGIs’ or ‘PDOs’).
Arbroath Smokies are protected by a PGI given that these must be produced within a specific radius from Arbroath. However, a Jersey Royal potato has a PDO status given that any Jersey Royal potato must be grown in Jersey. Whereas a trade mark belongs to a specific business, a PGI or PDO cannot be owned by a business or individual and instead is usually applied for by a group of producers and is therefore an attribute to a product created in a specific origin.
The benefits of a PGI or PDO are mainly the quality or characteristics that the product will contain and that they prevent imitation or misuse of a product by allowing any producer of the product covered by a PGI or PDO to commence relevant proceedings. A PGI or PDO is usually the result of traditional processes being passed on from one generation to another in relation to a product from a specific location. PGIs and PDOs are therefore focussed on authenticity and preventing other people or organisations who are not in the area of origin from using these terms.
Did anything change as a result of Brexit? Yes, any new PGI or PDO will now have to be applied for in the UK and the EU separately. However, any PGIs or PDOs registered in the EU prior to Brexit will automatically be covered by the UK scheme and any PGIs or PDOs registered in the EU prior to Brexit will continue to have effect. As such, producers of sparkling wine in the UK cannot suddenly start calling their product champagne.
Although PGIs/PDOs are different to trade marks, it is not possible to apply for a trade mark which will be confused with a PGI or PDO. As such, when thinking about a brand for your business, it is worth considering whether it could be confusingly similar to a PGI or PDO.
If you would like to discuss what is required to establish a PGI or PDO in more detail and the process for this or to discuss potential infringement of a PGI or PDO, you should consider with your legal advisor how they can assist and what can be done.
