Geographical Indications
Geographical Indications
Goods are often provided with a designation of origin to indicate a specific reputation or quality, or to evoke another advantageous association among potential customers.
Under certain circumstances, such designations of origin may enjoy protection under unfair competition law.
Select Your Preferred Appointment Now:Free initial consultationWhat is Protected?
Within the framework of the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), which regulates minimum standards in the field of intellectual property law and is binding for all members of the WTO (World Trade Organisation), geographical indications are defined as follows:
“Indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”
Whether a designation in this sense refers to a specific place and how this area is delimited is determined by the prevailing public perception.
Legally, this scope of protection is also extended to geographical indications for identifying the origin of services.
Not only direct but also indirect designations of origin are protected, through which the relevant public associates the goods with a specific place and thus with specific characteristics.
Examples: Vienna’s St. Stephen’s Cathedral or the application of national colors to a product
Designations such as “genuine” or “original” hold a special significance:
A good may be designated as “original” if it originates from the manufacturer so designated or stands in a special relationship to the name bearer. Furthermore, only the initial producer of a good may market it as “genuine”.
Wines and spirits also enjoy special legal protection.
Caution Regarding Generic Terms – No Protection!
It happens that original geographical indications transform into mere generic terms, now possessing only a descriptive character and thus losing their need for protection.
Again, the prevailing public perception is decisive here. Such a transformation and the loss of protection under unfair competition law are to be assumed if only a negligible portion of the relevant public perceives the designation in question as an indication of the origin of the goods.
Examples: Wiener Schnitzel or Italian salad
Some designations only seemingly refer to geographical indications, but in reality, they are merely generic terms from the outset. For example, the designation “Hamburger” for the corresponding dish is not specific to the city of Hamburg.
How is Protection Granted?
In the protection of geographical indications under unfair competition law, the prohibition of misleading practices naturally plays a particularly significant role, as a product can be considerably individualized and thus highlighted in the market through the use of a designation of origin. Primarily, this can evoke certain quality and price expectations among the target audience and positively influence the decision-making process of potential customers.
A designation of origin is legally relevant even if it is capable of influencing a not insignificant portion of the target consumer group or the average informed consumer in their decision-making. The mere risk of misleading is sufficient here.
Beyond the prohibition of misleading practices, the prohibition of aggressive business practices and the prohibition of disparagement of a company can also become significant.
A special feature for geographical indications in cases of misleading, aggressive, or disparaging interventions is the exception that protection exists regardless of whether the defendant acted for competitive purposes.
Select Your Preferred Appointment Now:Free initial consultation
