New protection framework introduced for spirit drinks and wines

The EU agriculture ministers reached an agreement on a new spirit drinks regulation and a political compromise on a new wine market regulation during the Agriculture and Fisheries Council of December 17 to 19 2007.

The first regulation (110/2008) on the definition, description, presentation, labelling and the protection of geographical indications (GIs) of spirit drinks repeals the EU Spirit Drinks Regulation (1576/89) and was published in the Official Journal on February 13 2008. The second regulation, on the common organization of the market in wine, is close to a final draft. It will amend a number of regulations and is expected to be published by the Summer.

Both regulations provide a more elaborate framework for the registration and enforcement of GIs than was previously the case. That framework is, to a great extent, inspired by the GI Regulation (510/2006), which does not apply to wine and spirits.

In compliance with Article 22(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, both regulations define 'GI' as an indication which identifies the spirit drink or wine as originating in a specific geographical area, where a given quality, reputation or other characteristic of that spirit drink or wine is essentially attributable to its geographical origin.

The Wine Regulation provides that 85% of the grapes used for the production of a specific wine need to originate from the area concerned.

The regulation distinguishes between GIs and designations of origin (DOs), which entail a much stronger link between the wine and the geographical area concerned than GIs. In order to fall under the definition of 'DO', all grapes used for the production of the wine must originate from that area.

Both regulations structure the registration process in two phases: a national phase and an EU phase. It is up to EU member states to apply for registration with the European Commission on the basis of a technical file setting out the specifications with which the wine or spirit drink has to comply.

Unlike the new Spirit Drinks Regulation, the Wine Regulation prescribes detailed rules governing the national phase.

The commission can reject applications which do not comply with the respective regulations (eg, because the name has become generic at the time of application).

Any interested party can object to the registration of a GI with the commission within six months of the publication of the application for spirit drinks and within two months of the publication of that application for wines.

Established GIs for wine and spirit drinks are not affected by the new registration procedure and shall automatically be protected under the new legislation.

Both regulations grant a reasonably broad scope of protection to registered GIs as they are protected against:

• any direct or indirect commercial use in respect of products not covered by the registration in so far as those products are comparable or such use exploits the reputation of the registered GI;
  
  
• any misuse, imitation or evocation;
  
  
• any other false or misleading indication as to the provenance, origin, nature or essential qualities of the wine or spirit drink liable to convey a false impression as to its origin; and
  
  
• any other practice liable to mislead the consumer as to the true origin of the product.

The new regulations considerably improve the EU legislation on GIs for wine and spirit drinks. They are now governed by rules similar to those which apply to foodstuffs and (other) agricultural products.

Nicolas Clarembeaux, Altius, Brussels