The Evolving Protection of Geographical Indications Against Services: “Brand” New World?

Abstract

AbstractThe EU regime for protecting geographical indications (GIs) is the most advanced – and at the same time the most debated – model of this sui generis intellectual property right in the world. The current reform is introducing innovations in many aspects of this regime, including that of digital markets. However, one very important aspect stemming from the evolution of EU case-law is missing – the extension of GI protection against services. EU case-law leaves open significant questions about this multi-faceted issue: not only how to construe the “front” side of directly excluding the (even evocative) use of a geographical name for services, but also, and mostly, how to deal with the “reverse” side of actively exploiting the same name on the market, following an authorization model resembling that for trademarks, as indeed the reform seems to admit elsewhere for the first time. There is also the “other” side of market services, where GIs act as intellectual property rights that affect the free movement of goods: here, ever more frequent references to “prestige” as a justification for protecting GIs further complicate the picture. This has potential implications for freedom of competition in the resale of typical products under the principle of exhaustion in terms of foreseeable legitimate reasons for opposition, again following the trademark model. This article aims to set out a more balanced approach tackling such new challenges, in order to make the EU regime fit for the future but still consistent with the founding principles of GIs as special intellectual property rights.