The mismatch between geographical indication protection against evocation and its underlying objectives

Abstract

The deliberations on the revision of the European Union (EU) system for geographical indications (GIs), proposed in 2022, manifest the contentious nature of protecting GIs against evocation. This article shifts attention to the origins of the anti-evocation protection, allowing for further exploration of how the protection deviates from the objectives behind its establishment. The study shows that the flaws that triggered the prospective reform were foreseen in the 1990s when anti-evocation protection was first introduced in GI law. In the 1990s, legislative discussions surrounding the introduction had already brought to light a lack of clarity regarding the objectives, the over-inclusiveness of the evocation test, and the potential absurdities it might generate. Those once potential flaws have gradually become a reality, and practice has manifested a mismatch between the anti-evocation protection and its underlying purposes. The judicial and legislative authorities’ latest bridging efforts have missed the fundamental solution to the mismatch. The EU GI legislative reform should give due consideration to adopting a harm-based approach, thus bringing the anti-evocation protection closer to its core objective of preventing harm.