Regions, times and Hungarian specialities, or the protection of geographical indications in Hungary

Transcription

1 Regions, times and Hungarian specialities, or the protection of geographical indications in Hungary One of the pivotal issues of the negotiations between the EU and Hungary is the situation and future of Hungarian agriculture. The harmonisation program concerning legislation and legal institutions relating to agriculture and agricultural products was put on the agenda of codification negotiations almost among the first items, which among others also touched upon the Hungarian law on foodstuffs and, within the framework of intellectual property protection, the law on trademarks. The reform of the law on trademarks was further urged by the unfolding renaissance of trademarks by the mid nineties parallel with the formation of the conditions of market economy, which also implied the demand for renewal of legislation on trademarks and geographical indications. The reform of Hungarian trademark law was effected by Law XI of 1997 providing for the Protection of Trademarks and Geographical Indications and in force as from 1 July, 1997, which not only meets the requirements of legal harmonisation and international agreements but also makes an integral part of the national legal system. Although Hungary is party to the international Lisbon Agreement providing for the protection of geographical indications and has concluded several bilateral agreements providing for the possibility for seeking protection abroad, and also Law LVII of 1996 provided for protection according to the Paris Convention, there were still many deficiencies in national legislation. Hungary fulfilled its general obligation concerning legal harmonisation contained in the Europe Agreement by providing by law for the protection of geographical indications by means of harmonisation with 1992 EU Regulations 2081/92 and 2082/92 approved as part of the strategy concerning the quality of agricultural products and foodstuffs. The purpose of these two regulations was to provide for the possibility for protecting names of certain foodstuffs for EU member states and third countries. For the sake of this also Hungary as a country outside the EU had to elaborate and stipulate by law a set of terms complying with EU directives as regards the system of requirements concerning products and geographical indications and the control of the use thereof and furthermore providing for the same level of protection of products and foodstuffs bearing geographical indications that originate in the EU. The actual requirements for protection contained in our law are in full compliance with the above mentioned obligations concerning legal harmonisation. It is Hungary's well grounded demand dating back to decades and even centuries ago that information on the geographical origin of our products that have become famous and popular world-wide should always be indicated truly. The opposite situation is seriously detrimental to the reputation of our products and our business interests as well. It is generally known that in many cases our relevant regulation did not provide for reassuring solutions in the field of domestic in-depth regulation and bilateral or multilateral agreements did not properly guarantee the elimination and prevention of infringements. The elaboration of appropriate solutions and also legal and practical market demands require the survey of our tasks in the fields of both regulation and legal practice. Our delay or possible de- 35

2 faults may cause serious damages to Hungarian economy. In such a situation we must do our the necessary steps to co-operate with the interested circles both in the national and the international context. Best to focus on the issue and make the necessary steps to cooperate with the interested circles both in the national and the international context. The present analysis therefore aims at giving an overview of the situation and a thorough but urgent survey of the tasks to complete. The enactment of our Law XI of 1997 and its provisions concerning geographical indications may be considered the first and most important step. Law No. XI of 1997 on the Protection of Trademarks and Geographical Indications is an integral part of Hungarian legislation and regulates by law the requirements concerning the selection, protection and control of agricultural products and foodstuffs bearing geographical indications, also considering that such products have special characteristics that are due to traditions, regions or cultures. This also reflects the deep change in attitude that happened also in Hungary in the mid nineties. The transition to market economy entailed the change of market conditions, the modification of the market structure and the increasing role of competition tools. Consequently, uniform products were gradually pushed into the background by Hungarian specialities bearing geographical indications, products or foodstuffs which have become famous and acknowledged world-wide due to their high quality, traditions and reputation, for example: the porcelain of Herend, the paprika of Kalocsa or the apricot brandy of Kecskemét. (Terms of protection for such products through geographical indications are contained in Part V, Articles , of Law XI of 1997.) The term "geographical indications" is used by the law as the general term comprising all indications used in trade for the identification of the geographical origin of products. Thus geographical signs and appellations of origin which are used in the course of trade to identify the geographical origin of a product may be granted protection as geographical indications. Geographical sign means the geographical name of a region, locality or, in exceptional cases, a country which serves to designate a product originating therein the specific quality, reputation or other characteristics of which are due essentially to that geographical origin, and the production, processing and preparation of which take place in the defined geographical area. Appellation of origin means the geographical name of a region, locality or, in exceptional cases, a country which serves to designate a product originating therein the specific quality, reputation or other characteristics of which are due exclusively or essentially to the geographical environment, with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area. In relation to agricultural products and foodstuffs the term "geographical sign" is defined by the Community directive as the name of a region, locality or, in exceptional cases, country which is used to designate products originating therein where the specific quality or other characteristics of the products is also due to the geographical origin and the production or processing of the products effectively takes place in the defined environment. The term "geographical sign" is defined by the TRIPS Agreement essentially similarly, apart from applying it not only to agricultural products and foodstuffs. The important difference between geographical signs and appellations of origin is that in 36

3 the case of the former there must be a direct and inseparable relation between the quality or characteristics of the product and the geographical environment, whereas in the case of the latter such relation is occasional, i.e. the reputation or characteristics of the product may be due to the geographical environment, irrespective of the natural and human factors, which have a decisive role in the case of appellations of origin. In Europe the protection of geographical indications has developed according to two different models, the French one and the German one. The competition of these two systems has greatly affected the development of international law as well. Wine producing France and her followers favour the protection of appellations of origin, where the altogether of natural and human factors are decisive, in contrast to countries inferior in the field of wine-growing, with Germany at the head, which opt for geographical signs considered as a lower category because of the disregarding of human factors, raising considerable difficulties for the uniform Community system. From the point of view of substance, besides the basic requirement of harmonisation with the Community directive and the TRIPS Agreement, it was the traditional French approach that seemed more justified to take for Hungarian legislation. That was the most suitable considering the significance of agricultural production in Hungary and being party to the Lisbon Agreement, nevertheless under the provisions of the law appellations of origin are a title of protection not restricted to agricultural products and foodstuffs. Our law also provides for protection afforded to appellations of origin recorded in the national register kept under the Lisbon Agreement before the entry into force of the law, which had to be recorded automatically in the register of geographical indications. The first 25 registered geographical indications were the Hungarian appellations of origin registered in the framework of the Lisbon Agreement, which are the following: HEREND (porcelain) KALOCSA (ground paprika) SZEGED (ground paprika) TOKAJ (wine) MÓR (wine) BALATONMELLÉK (wine) SOMLÓ (wine) BALATONFÜRED-CSOPAK (wine) EGER (wine) DEBRŐ (wine) BADACSONY (wine) VILLÁNY-SIKLÓS (wine) PÉCS-MECSEK (wine) VERPELÉT (wine) HALAS, KISKUNHALAS (lace) SOPRON (wine) SZEKSZÁRD (wine) KECSKEMÉT (apricot brandy) EGER (cherry brandy) SZATMÁR (plum brandy) BUDAFOK (enamelware) BONYHÁD (enamelware) SZENTGOTTHÁRD (scythe) CSABA (meat products, sausages) GYULA (meat products, sausages) GÉRCE (alginate) Under the effective law geographical indications of agricultural products and foodstuffs may be granted protection if the products bearing the geographical indication comply with the conditions specified in the product specification provided for by government decree 87/1988 in conformity with Community directive 2081/92. It is therefore not sufficient that the product bearing the registered geographical indication was in fact produced or processed in the defined geographical en- 37

4 vironment as compliance with the conditions specified in the product specification is also necessary. The product specification must contain: a) the geographical indication; b) the indication of the product in relation to which the geographical indication is used; c) the description of the product, including, where necessary, the indication of the raw materials used for production and the main physical, chemical and microbiological characteristics as well as characteristics perceptible by the senses; d) the description of the method used for production and, where necessary, the traditional local methods; e) the definition of the geographical area where the product bearing the geographical indication originates, in the case of wines also of the growing area bordered under Article 4(5) of law CXXI of 1997 on wine-growing and wine-farming, and in the case of geographical names traditionally used for foodstuffs also of the processing area mentioned in Article 118(1)(a) of the Trademarks Act; f) the detailed description of the relation between the product and the geographical environment or origin to justify that the specific quality, reputation or other characteristic of the product is due to that relation; g) the regulations concerning the application of the geographical indication on the product. In the course of the procedure for the registration of a geographical indication and during the term of protection the holders may modify the product specification, especially on the basis of new scientific or technological developments or in the case of modification of the definition of the geographical area. In order to effect the requirement for protection, in the course of the registration procedure or in the event of modification of the product specification it must be supervised whether the products bearing the geographical indication comply with the conditions specified in the product specification, and in the course of the use of geographical indications applied in trade or in any stage of the production, importation and putting on the market of the product, whether the conditions specified in the product specification were met. The application for the protection of a geographical indication must be filed with the Hungarian Patent Office, which, having carried out the examination as to formal requirements, forwards it to the Ministry of Agriculture and Regional Development (MARD). The Hungarian Council for the Protection of Geographical Origin consisting of fifteen members appointed by the minister of agriculture and rural advancement examines if the product specification relating to the product subject to the application complies with the requirements of the decree. In relation to wines there is a separate Council for the Protection of Geographical Origin of Wines consisting of six members. On the basis of the position taken up by the competent council the Ministry takes the decision concerning the product specification and sends it to both the applicant and the Hungarian Patent Office. Following this the Hungarian Patent Office carries out the substantive examination according to the provisions of the 1997 law and if the application does not conflict with any requirement for protection, it takes the decision on the registration of the geographical indication. In the issue of compliance with the conditions specified in the product specification the Hungarian Patent 38

5 Office must consider the decision of the supervisory organ when proceeding in its own competence. In other words the Hungarian Patent Office may not amend the decision of the Ministry of Agriculture and Regional Development in the issue of compliance with the conditions of the product specification. The Hungarian Patent Office publishes an announcement making the data contained in the application available for the public and the MARD records the detailed product specification in the Hungarian Food Codex (Codex Alimentarius Hungaricus). Registered products are supervised by institutes charged with foodstuffs supervision, animal health care supervision and the protection of consumers. Wines are supervised by the National Wine Qualification Institute. In the case of agricultural products the granting procedure concerning geographical indications is presented in the following simplified figure: Application Payment of application fee Comminication of certain data Examination as to formal requirements Supervision of prouduct specification MARA Council for the Protection of Geographical Origin Council for the Protection of Geographical Origin of Wines Decision on product specification MARA Substantive examination Registration of application Rejection Announcement on registration in Official Gazette MARA Official Gazette Recordal of prouduct specification in Hungarian Fooodstuffs Book MARA Supervision of use of Geographical Indications Under our law any natural or legal person or a company without legal personality may apply for the protection of a geographical indication which produces, processes or prepares, in the defined geographical area, a product for the designation of which the geographical indication is used. As far as the person of the applicant is concerned, in the case of Hungarian geographical indications which are registered or for the protection of which an application has been filed the experience of the past five years show that already the registration procedure is faster where at the time of seeking protection the applicant is a professional organisation assembling the defined area or a business corporation which represents and co-ordinates the community and interests of those farming 39

6 in the defined area and rightfully using the geographical indication. That way many subsequent legal disputes could be avoided and it could not happen that a product traditionally related to a region is produced in another region bearing the same geographical indication. For any person who becomes the holder of a geographical indication does not become a sole holder, i.e. does not obtain an exclusive right to use, unlike in the case of trademarks, but legal protection belongs jointly to the persons who carry out the specified activities in the area defined in the product specification. The number of rightsholders may not be increased through licensing or any other contracting, only changes in the name of the applicant may be effected. It is important to point out also that in the application the applicant must indicate which kind of geographical indication he is seeking protection for, a geographical sign or an appellation of origin. In an application filed in Hungary protection may be sought only for a Hungarian geographical indication. Since the entry into force of Law XI of 1997 the following appellations of origin have been granted protection in Hungary: KALOCSA (ground paprika) HEREND (chinaware) HALAS,KISKUNHALAS (hand made lace) MAKÓ (onion) SZEGED (salami) KECSKEMÉT (apricot brandy) SZATMÁR(alcoholic, drinks, plum, brandy) BUDAPEST (salami) SZABOLCS (apple brandy) PARÁD (iron alum) and applications have been filed for e.g. the following appellations of origin: GÖNC (apricot) ÓVÁR (cheese) The list also shows that geographical indications have not only been registered for agricultural products or foodstuffs in Hungary but a much wider range of products are protected under this title of protection. After our accession to the EU registrations related to wines and spirits will get out of this system, since in respect of these products the EU provides for protection under separate legislation. The rest of our registered geographical indications would presumably be registered in the EU registration procedure and might be subject to opposition by the other member states. It can also be seen that a considerable part (13) of the 36 registered geographical indications relate to wines, which ties in with the reputation of Hungarian wines. Even though the hillside communities forming the basis of the concentration of wine-growing areas have been established, further regulation concerning wines and the modification of existing provisions remain necessary so that the protection of noble drinks produced in our winegrowing areas can be expanded also to this title of protection. The elaborated system and method will hopefully preserve and protect the value of Hungarian specialities and encourage the commitment to high quality specific products through the connection to countries, regions and traditions in the economic policy of the EU. Hungarian economy has much left to do for the sake of the protection of our national treasures and national heritage and of the geographical indications inalienably related to our country. The well created system is only a means of protecting (and to protect) our national treasures in an appropriate way. Particularly because of being a small country, we cannot afford the luxury of letting our geographical indications become generic, like it happened in the cases of Wiener schnitzel or Bologna sausage. Of course also in Hungary there have been applications for geographical indications 40

7 which could not be granted protection under this specific title because with time they had degraded to generic names, that is, become the generally used names of the product in trade, irrespective of whether or not they originated in the area specified by the geographical indication. Since the entry into force of the law there have basically been two cases where proceedings were started relating to the protection of a geographical indication. Finally it is to be stated that from the number of geographical signs and appellations of origin under the still effective bilateral agreements containing precise lists thereof, which amounts to several hundred, it may be concluded that only a smaller part of the 36 geographical indications so far recorded in the national register under the new legislation concerns the group of geographical indications worth registration relating to products that would also deserve to be products "bearing a protected geographical indication". It would also be worth deliberating whether the application should be free of charge or even that the recorded products should be subsidised, which would encourage further groups to seek protection. The use of an emblem which would easily communicate to consumers that the products bearing it are of some additional value and of a standard and supervised quality would also aim at the better information of consumers. The emblem could thus be a marketing tool of influencing consumers' conduct and shopping habits. It would unambiguously communicate the positive arguments attached to products distinguished by geographical indications, thus achieving the conscious shaping of the prestige associated with the product. The Hungarian Patent Office, the MARD and non-governmental organisations such as the Hungarian Trademark Association expressly intend to further facilitate co-operation and information activities so that the greatest possible part of our national treasures, though their number is limited, could be granted the protection of geographical indications possibly before our accession to the EU. Mária Bándy (Patender Patent and Trademark Ltd.) BIBLIOGRAPHY P. Biacs: Changes in the food industry and the legal protection related thereto. Iparjogvédelmi Szemle, 1997/12 Mrs István Bognár: Signs liable to deceive consumers. Védjegyvilág 1997/2. Clark W. Lackert: Geographical Indications: What Does the WTO TRIPs Agreement Require. Trademark World, August 1998 European Organization for Quality: "Traditions - Tastes - Regions" (News) Program, Professional conference, Budapest 2002 J. Goiten - Mrs B. Zsigmond: Good wine needs no bush? Védjegyvilág. Special edition. Wines- Geographical Indications - Trademarks Gevers: The Community Trade Mark - use it or lose it. Trade Mark Yearbook, 2000 E. Lontai: Intellectual Property Law. Eötvös József Könyvkiadó, 2001 Mrs I. Nagygyörgy: The protective materials of noble winegrowing areas are geographical indications. Védjegyvilág, special edition, Mrs Tibor Schleicher: Where does deception of consumers start? On black economy. October 2001 Ágnes Szabó: The importance of industrial property protection in wine-growing. Borászati füzetek 2002/2 L. Tattay: The protection of geographical indications in EC member states. Védjegyvilág, 1994/2 Vol. IV L. Tattay: The EU system for protection of geographical origin and Hungary. Külgazdaság 1997/12 L. Tattay: Bushes of wine: Geographical indications and trademarks related to wines. Élelmezési Ipar, Vol. LVI (2002)/7 L. Tattay: Thoughts on the introduction of protection of geographical indications. Magyar Jog 1998/5 S. Vida: The protection of appellations of origin and geographical indications in the EC. Iparjogvédelmi Szemle, vol. 101/ I. February 1996 J. Zilahi: On certain issues of the protection of geographical origin of wines. Védjegyvilág 1998/1 41

8 42