Feta or 'white cheese soaked in brine'?
25 November 2005Feta is no longer a term that can be used freely in Europe to describe a type of cheese. This may ultimately affect how the term is used throughout the world. Perhaps more importantly, this is a further example of how protection for GIs is expanding in Europe.
On 25 October 2005 the European Court of Justice determined Feta is a protectable designation of origin (PDO) under the European Geographical Indication (GI) registration system even though there is no place called Feta.1 GIs are not widely used or recognised in Australia and this decision has no effect in this country. However, ramifications exist for Australian cheese producers wanting to export their products to Europe. Further, a number of separate yet related developments in relation to GIs are nearing resolution. For example, there are two disputes currently before the WTO relating to how GIs are protected in Europe.2 How these issues are resolved will affect how GIs are defined and protected in the future. For this reason, it is important that close attention is paid to current developments.
GIs have become the buzz topic in intellectual property. In other areas of intellectual property basic rights are long settled. However, in relation to GIs the nature and scope of protection is still undergoing considerable debate.
Back in 1994 Greece applied to register the word Feta as a PDO whose use is restricted to a particular type of cheese produced in certain areas of Greece using traditional methods. Feta was duly listed as a PDO in 1996 only to be removed in 1999 and then reinstated in 2002. The current decision, supported by Greece and opposed by Germany, Denmark, France and the United Kingdom, has upheld the 2002 decision to reinstate protection for Feta as a PDO.
The provisions relied upon to find Feta is a registrable PDO require:
- A traditional geographical or non-geographical name designating an agricultural product or foodstuff originating in a region or place.
- 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 takes place in a defined geographical area.
Importantly, the PDO does not need to be a place name, although there must be a link between a geographical location and certain qualities or characteristics of the product in question. Names that have become generic in Europe may not be registered.
In the Feta case, it was common ground that cheeses marketed as Feta have been produced in France, Germany and Denmark since the 1930s. Prior to 1987 some of these cheeses were even imported into Greece for sale under the name Feta before this practice was legislated against by the Greek Government. The ECJ determined that despite this earlier use, Feta has not become generic in Europe partly because evidence showed that cheeses not produced in Greece marketed under the term Feta commonly used Greek connotations in packaging and labelling. Importantly, there was no discussion of whether the use of Greek connotations may have led to any consumer deception or confusion. Evidence also showed the term was used as a designation of origin and had not become generic in Greece, where the cheese's production and consumption was concentrated.
The history of Feta as a PDO is a good example of what a hotly contested area of intellectual property law GIs have become even within Europe, the traditional champion of GIs. The interest in GIs is stimulated by the enormous potential value attached to any decision for or against restricting the use of any designation of origin.
The WTO disputes referenced above recently culminated in a paper stating that the European GI registration system (used for the protection of Feta) only offends WTO member rights to the extent it requires equal reciprocal protection be offered by member countries before their GIs can be protected in Europe. Europe has agreed to implement measures to overcome this issue. This will not change the substance of the European GI registration system. Consequently, European protection for GIs is here to stay and the number of protected terms will only increase.
As mentioned, the Feta decision has no application in Australia. However, Europe has a history of encouraging its trading partners to recognise and protect its GIs, as occurred in relation to European wine GIs in Australia. It can be expected that Europe will continue to lobby to increase recognition of GIs internationally as European countries have the most to benefit from increased protection. If Australian producers are to continue to compete internationally they must either develop new descriptive terms to use in relation to their products or create value in relation to their own geographical indications.
Footnotes
- Federal Republic of Germany & Kingdom of Denmark v Commission of the European Communities ECJ Case C-465/02 & C-466/02 (Judgment of 25 October 2005).
- See Drummond F and Jouguelet C 'Geographical indications — update' (2005) 17(10) IPLB.
This article was written by Georgina Hey, Solicitor and Trade Mark Attorney.
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