A very few decades of lawmaking produced a kind of a “jungle” of IP legal instruments and signs linked to food quality, at least in the complex frameworks consisting of EU- and national law systems. In such a “chaos”, even an attempt to find a legal concept of “protected quality” is growing more and more difficult. Commercial practice, IP theory and legislators as well, contributed to create some general-purpose private IP rights (such as trademarks, both individual and collective ones) which, on the marketplace, can be associated by consumers to some product, to some appreciated know-how, and consequently to some subjective idea of quality; but for sure, no link to product’s characteristics is guaranteed by law. Thus, in order to create ad hoc legal means of protection, specifically tailored on food sector’s needs and demands (and in order to find out some new value-added instruments for marketing, that way supporting farmers’ revenues as an alternative to direct aids), once upon a day EEC conceived, and decided to regulate, a somewhat new kind of public IP rights. At least, they were quite new for the EU law, but the same were absolutely well known by national laws and in the international order. Their aim was to pursue a protection of qualities and/or of reputation linked to geographical or traditional product names, reserving their use to some producers only (namely, to the producers meeting the geographical requirements and the technical specifications). These very peculiar IP signs (such as PDOs, PGIs and TSGs) have now been inherited by the EU together with their whole set of requirements and effects; and also together with all their peculiarities about enforcement (although accompanied by some uncertainties that have emerged with regard to the s.c. “ex officio” protection, which have been definitely solved only by the last Regulation concerning this matter, No. 1151 of 2012). In parallel, at the national level, some member States have tried to cook up some kind of national “quality signs” on their own, sometimes avoiding conflicts with the monopoly which, on this matter, had been claimed to EU by the Court of justice, sometimes conflicting with it. The invention of so many national signs often resulted in entropy, where States insist to reclaim powers to regulate quality-related IP signs at the national level, while some new European rules on information to consumers and on quality schemes seem to even legitimate such Members’ behaviour, undermining the above-mentioned monopoly. As a consequence, the relationship between the law orders become even more unclear than in the past, and finally the consumers have nothing to gain.

Sovrapposizioni fra ordinamenti e ‘fantasia’ del legislatore in tema di segni di qualità

BORGHI, Paolo
2015

Abstract

A very few decades of lawmaking produced a kind of a “jungle” of IP legal instruments and signs linked to food quality, at least in the complex frameworks consisting of EU- and national law systems. In such a “chaos”, even an attempt to find a legal concept of “protected quality” is growing more and more difficult. Commercial practice, IP theory and legislators as well, contributed to create some general-purpose private IP rights (such as trademarks, both individual and collective ones) which, on the marketplace, can be associated by consumers to some product, to some appreciated know-how, and consequently to some subjective idea of quality; but for sure, no link to product’s characteristics is guaranteed by law. Thus, in order to create ad hoc legal means of protection, specifically tailored on food sector’s needs and demands (and in order to find out some new value-added instruments for marketing, that way supporting farmers’ revenues as an alternative to direct aids), once upon a day EEC conceived, and decided to regulate, a somewhat new kind of public IP rights. At least, they were quite new for the EU law, but the same were absolutely well known by national laws and in the international order. Their aim was to pursue a protection of qualities and/or of reputation linked to geographical or traditional product names, reserving their use to some producers only (namely, to the producers meeting the geographical requirements and the technical specifications). These very peculiar IP signs (such as PDOs, PGIs and TSGs) have now been inherited by the EU together with their whole set of requirements and effects; and also together with all their peculiarities about enforcement (although accompanied by some uncertainties that have emerged with regard to the s.c. “ex officio” protection, which have been definitely solved only by the last Regulation concerning this matter, No. 1151 of 2012). In parallel, at the national level, some member States have tried to cook up some kind of national “quality signs” on their own, sometimes avoiding conflicts with the monopoly which, on this matter, had been claimed to EU by the Court of justice, sometimes conflicting with it. The invention of so many national signs often resulted in entropy, where States insist to reclaim powers to regulate quality-related IP signs at the national level, while some new European rules on information to consumers and on quality schemes seem to even legitimate such Members’ behaviour, undermining the above-mentioned monopoly. As a consequence, the relationship between the law orders become even more unclear than in the past, and finally the consumers have nothing to gain.
Borghi, Paolo
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11392/2366326
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