This article attempts to critically examine the legal protection that the traditional cheese of Cyprus named halloumi could receive in the field of intellectual property law in the light of the European Union law and, in particular, under the status of Protected Designation of Origin and the status of Protected Geographical Indication. Crucial to the issue is the Regulation 1151/2012, which establishes the framework and the content of protection that halloumi can receive under the abovementioned schemes.
Protected Designation of Origin – Protected Geographical Indication – Halloumi – Traditional Cheese
It is undeniable that the European Union (EU) has a common geographical policy, with significant benefits in regards to the quality of European products and to European producers and consumers. These policies derived from the Regulation 2017/1001 on the EU trademark and the Regulation 1151/2012 on quality schemes for agricultural products and foodstuffs. The analysis of this article will be based on the abovementioned regulations.
II. Regulation 1151/2012 on quality systems for agricultural products and food
With the enactment of the Regulation 1151/2012 (hereinafter referred to as the “Regulation”) and taking into account the increased demand of European consumers for agricultural products and high quality food with specific characteristics associated with a certain geographical origin, the European legislator, guided by both the benefit of farmers and producers as well as the benefit of consumers, seeks to establish rules for the disclosure of these specific characteristics. The Regulation, starting with the strongest protection and ending with the least strong, introduces four different systems of protection of agricultural products and food: the system of Protected Designation of Origin (PDO), the system of Protected Geographical Indications (PGI), the system of Traditional speciality guaranteed (TSG) and the system of Optional Quality Terms (OQT). For the purposes of this article, an analysis of the first two systems will follow.
A. Protected Designation of Origin and Protected Geographical Indications Systems
The Regulation establishes an integrated system for the application, registration, use, protection and official control of PDOs and PGIs in the EU in order to prevent misuse, counterfeiting or other false or misleading indication of protected products. The products that fall within the concept of PDO and PGI are occupied by a cultural dimension and are enriched with the idea that they differ from the common products, since their reputation derives from their geographical origin. In other words, they are inextricably linked to their place of origin, as there is an essential link between their characteristics and their geographical origin.
In particular, the PDO and PGI systems aim to ensure fair performance for farmers and producers in terms of quality data and characteristics of a given product or method of production, and to provide clear information on products with particular characteristics related to geographical origin, so that consumers are better informed when choosing products during the purchase process. The protection of PDOs and PGIs is provided through a registration system.
It is noted that the definitions of PDO and PGI under Article 5 of the Regulation are similar. In particular, both systems have the same function of identifying a product as coming from a specific place. However, there are specific differences that give PDO products more protection than PGI products.
Specifically, products identified as PDOs have stronger links with their place of origin, since all stages of their production must take place there. It is emphasized that PDO products are strongly associated with specific areas, in which there are special natural or human factors. Natural and human factors take the form of a number of variables such as climate, geological and hydrological aspects, processing methods, technical knowledge, traditional skills and local customs. Likewise, the source of inspiration for the PDO system is the need for consumer protection. Therefore, the PDO regime imposes strict requirements, which are stated in the product specifications.
On the contrary, PGI products have a looser connection to a specific location, despite the wording that the products must have a specific quality, reputation or other characteristics attributed to the geographical origin, as to qualify a product as a PGI product, only one phase is enough of its production to be performed in the relevant area. Therefore, the raw materials may not come from this area. At the same time, the reputation factor alone is sufficient to justify protection as a PGI.
Despite the aforementioned differences in the specifications for the award of a product as a PDO or as a PGI, it is argued that in practical application there are no substantial differences between the mentioned systems regarding their specificity and quality. It is suggested, that the separation of the two should be lifted.
For the sake of completeness, it should be noted that six hundred forty-two PDOs and seven hundred fifty-six PGI have been registered throughout the EU. Regarding the Cypriot production, the PDO has already been registered “Kolokasi Sotiras / kolokasi- poules sotiras” while as PGI are considered the ” Glyko Triantafyllo Agrou”, the “Paphiko loukaniko”, the “Koufeta amygdalou Geroskipou” and the “loukoumi Geroskipou”.
A.1 Greek feta cheese as a product of PDO
It is a fact that the majority of product names that enjoy PDO protection are related to the geographical name of the region in which they are produced. Indicative examples are the Greek products “Pefkothymaromelo Kritis”, “Galano Metaggitsiou Halkidikis”, “Tomataki Santorinis”, “Prasines Elies Halkidiki”, “Fava Santorinis” and “Stafida Zakynthou”. However, names that are not direct geographical names can also be registered as PDO, such as, the name “feta” as a cheese from Greece.
With regard to the name “feta”, there has been intense controversy and speculation as to whether this name is considered “generic”, ie whether it is a common name for the type of cheese. Pursuant to Article 3 of the prior Council Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, the common name was considered to be the name of an agricultural product or a food which, although it refers to the place or area where the agricultural product or food in question was originally produced or marketed, has now become the common name of an agricultural product or food. The outcome of the feta decision was crucial. The Court of Justice of the EU (hereinafter referred to as “CoJ”) has ruled that although “feta” and similar expressions do not in themselves constitute a region, they can be registered as PDOs if consumers associate the product with that region of production. The CoJ has taken into account various data on the consumption of the aforementioned product in the Member States (hereinafter referred to as “MS”), which indicate that the name “feta” does not have a common name and can therefore be treated as a PDO. A key factor taken into account by the CoJ in deciding in favor of PDO protection was the fact that a significant proportion of European consumers, in fact, perceived “feta” as a cheese associated with Greece, even if it was actually produced in another MS. At the same time, the CoJ took into account that in other MS, except Greece, feta is usually available in the trade with labels that refer to Greek cultural traditions and Greek culture.
For this reason, the Attorney General, Dāmaso Ruiz-Jarabo Colomer, argued that the memory of the past influences the assessment of whether a name is perceived as common, mainly in order to determine whether that name has always been common. In the present case, the historical background was of great importance since it seems that, already from the Homeric epics, the presence of cheese in Ancient Greece was important.
Furthermore, the CoJ took into account that in Greek legislation the name “feta” is recognized as a PDO for white brine cheese traditionally produced in Greece from sheep’s milk or a mixture of it with goat and exclusively in the regions of Macedonia, Thrace, Epirus, Thessaly, Central Greece, Peloponnese, as well as the Prefecture of Lesvos. There was, therefore, a clearly demarcated area for feta production that includes exclusively the mainland of Greece, as well as the Prefecture of Lesvos. For all the above reasons, the CoJ concluded that the name “feta” is not of a general nature, with the consequence that cheese producers outside the specified area are not allowed to refer to their product as “feta cheese” or “feta”.
A.2 The Cypriot cheese “Halloumi” (“Halloumi) /” Hellim “as a product of Protected Designation of Origin
Regarding the use of the name” Halloumi “(Halloumi) /” Hellim “, it is important to note that since 2014 the process for its establishment as PDO exclusively for cheese produced by Cypriot producers is pending. At the same time, the Republic of Cyprus, as well as other entities such as the Cyprus Dairy Industry Organization and the Foundation for the Protection of Traditional Cypriot Cheese called Halloumi (hereinafter referred to as the “Foundation”) are making efforts to prevent some companies from using the name “halloumi” as a trademark. An example is the Case C-766/18, which shows the Foundation’s attempt (which owns the European collective mark “HALLOUMI”) to prevent a Bulgarian company from registering a figurative mark which also concerns cheece and contains the word “BBQLOUMI”.
It is worth noting that the Secretary-General, Juliane Kokott, defends the position of both the EUIPO (EU Intellectual Property Office) and the EU General Court, arguing that the distinctive character of the term “HALLOUMI” is weak because it describes that cheese. Therefore, despite some similarities between the terms “HALLOUMI” and “BBQLOUMI”, the use of the latter name does not pose a risk of being associated by the public with the producers who are members of the Foundation. However, the decision of the General Court was overturned by the CoJ on 5 March 2020, according to which the fact that the distinctive character of an earlier mark is weak does not preclude the likelihood of confusion. As a result, the decision was referred back to the General Court in order to make a comprehensive assessment of the risk of confusion, which should take into account all the critical factors and their interdependence.
Interesting is the comparison of the collective mark “DARJEELING” with the collective mark “HALLOUMI” by AG Juliane Kokott, who noted that the collective mark “DARJEELING” is an excellent example of the application of the collective European mark because it corresponds to a city name and region of India and at the same time is identified with the famous black tea grown there. In contrast, the mark “HALLOUMI” does not correspond to a specific place name, but can only be associated with one place, ie Cyprus, and this is questionable since it seems that such cheeses are produced in other countries, often under the same or similar names. It is argued that the enjoyment of the PDO system is given to an entire country only “in exceptional cases” and especially when the MS is small. Through this comparison, it could reasonably be said that there would be a better chance of the application being approved for the name “Halloumi” / “Hellim”as PDO, if the product with this name was restricted to specific areas of the Republic of Cyprus and not in its entire territory. In case of failure to register halloumi as a PDO, the Republic of Cyprus may take the appropriate measures in order to protect the product in question under the PGI regime. However, the provision of protection under this regime will be of less scope, as the product will have a weak connection with the Republic of Cyprus and this will result in the encouragement of foreign producers to reap the reputation of the product with the only obligation to carry out only one stage of the production within the demarcated area.
It is considered indisputable that the EU has developed an important system for the protection of European products. However, intense controversy is observed, in the effort to secure absolute protection for the benefit of the cheese “Halloumi” from the Republic of Cyprus and from Cypriot organizations and institutions. As a result of the above, the Republic of Cyprus must immediately proceed with actions that ensure the strong protection of halloumi. It has the obligation to intensify the political negotiations and to collect the necessary data that prove the origin of the product in question, in order to be approved as a PDO or as a PGI. At the same time, through political initiatives, it should conclude bilateral agreements with EU Member States and third States, which will recognize the Cypriot origin of Halloumi and will ensure the shielding of its quality and consequently the Cypriot tradition.
The above article can also be found in Greek by clicking here.