Léon Dijkman, Assistant Professor of Commercial Law at Erasmus School of Law, may call himself the winner of the ATRIP Essay Competition 2022. His essay Pairing sturgeon with champagne: towards a due cause exception in the law of geographical indications on the Protected Geographical Indication (PGI) was awarded first place by the ATRIP jury and will soon be published in The Journal of World Intellectual Property. In his paper, Dijkman argues for delimiting the PGI as it is currently known in Europe. Why and how should it be possible to limit the protection of characteristic products?
Products from a particular region that have a good reputation because of their quality or a characteristic linked to the place of origin can be protected under European law through a PGI status. This status is granted to agricultural products and consumables, spirits and (aromatised) wines. Whereas general trademark law does not lend itself to describing a specific product, PGI law serves this purpose. “For example, the trademark Apple cannot be registered for fruit because competitors would no longer be allowed to use that word for apples. At the same time, ‘South Tyrolean apple’ can be a PGI”, Dijkman explains.
Can a dressmaker designate a dress as ‘Bordeaux red’?
Europe has brought many PGI products such as Champagne, Prosecco, and Iberian ham. Their protected status means that their names can only be used if products come from the same PGI region and meet all production standards. Thus, both producer and consumer are protected. “However,”, Dijkman argues, “you might wonder whether there should not be exceptions to this protection. Suppose a dressmaker wants to designate a dress as ‘Bordeaux red’ or an artist wants to use the Champagne bottles in a work of art, is that allowed?” This question kept Dijkman busy, so he wrote his essay.
According to Dijkman, protecting certain products with a rich history and global fame should indeed be high on the European agenda, for instance, if they are “crown jewels of our agricultural sector”. “At the same time, reasonable limits should be placed on protection to ensure that fair use, which does not harm the interests of PGI holders, remains possible. That is what I argue for in my essay”, Dijkman nuances.
In his essay, he considers the example of Bordeaux red or the use of a PGI as part of a work of art or parody: according to Dijkman, these should not fall under the scope of protection of PGI law. In the case of permissible descriptive uses of a PGI or uses that fall within the scope of freedom of expression, Dijkman says the PGI right can be limited. “I propose the law on how to deal with this and show that these can, but also must, be respected by the courts under European law.”
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