March 2008
Bittersweet Victory for Italian Cheese Makers
A recent decision in Europe’s highest court brings some good news for Italian cheese makers who have fought vigorously to protect the original Parmesan cheese against cheaper, low quality copies. The European Court of Justice has confirmed that only cheeses labelled Parmigiano Reggiano should be sold as Parmesan cheese under the EU regulations protecting foods that originate from a particular region. The court also decided, however, that the responsibility for prosecuting cheese makers who don’t comply will rest with Italy, even if the offenders are in another EU country.
Parmagiano Reggiano has been protected as a geographical indication since 1996, meaning that the phrase can only be used for cheeses made, grated and packaged in the northern part of Italy around Parma and Reggio. Italy has 500 certified Parmesan producers who strictly follow an 800 year-old process to make the hard cheese that is often grated onto pasta. Germany is the world’s second largest producer of that type of cheese and, prior to the Court decision, has labelled non-Italian cheese as Parmesan.
The case arose when European Commission brought proceedings against Germany in 2005 after its government refused to prosecute its cheese producers for using the name Parmesan on the basis that it was a generic term. Generic terms do not qualify for protection as a designation of origin under the EU regulations. The ECJ however, agreed with the Commission’s argument that ‘Parmesan’ had not become generic and that, therefore, using it for cheese which did not comply with the specification of Parmagiano Reggiano as a Protected Designation of Origin (PDO) was an infringement of the EU regulations.
However, unfortunately for the Italian cheese makers, the Court found that Germany was not responsible for ensuring compliance by its producers. Instead, it is up to the inspection structures of the member state from which the PDO in question comes, in this case Italy, to ensure compliance. This decision could mean that German cheese producers may in practice continue to flout the law and label their cheese as Parmesan.
In recent news, a Scottish member of the European Parliament has applied to have the Scottish kilt granted PDO status – like Parmesan cheese or champagne in France. This status, he says, will help put a stop to cheap imitations made in India or China that claim to be Scottish and are destroying the reputation of the original Scottish kilt that has now become a designer clothing item.
Briffa Comment
In terms of European laws protecting geographical indications, it will be interesting to see if this case is followed in the future. Although the Court seems willing to uphold the idea of protected designation of origin (PDO) in principle, their finding that an EU country is not responsible for penalising infringers in its own territory could mean that on a practical level infringing goods will continue to be produced. With the finding in this case, an EU country will have to bring proceedings in another EU country to protect its products which have PDO status. Italian cheese makers have one case pending at a Berlin-based court against German cheese maker, Allgaeuland-Kaesereien GmbH.
Geographical indications are protected under intellectual property law. A “geographical indication” is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin. Most commonly, it consists of the name of the place of origin of the goods.
In the UK, historically the common law action of passing off has been extended to cover cases where one party has misrepresented their product as being of a particular geographical origin in a way that is detrimental to the reputation of producers of the product in the relevant region. There is also some protection given under the Trade Marks Act for geographical indications. An association can apply for a collective mark that distinguishes the goods or services of members of the association from another party’s goods. It is also possible to apply for a certification mark that indicates that the goods or services in connection with which it is used are certified by the proprietor in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics.