COUNTERFEITING AND PROTECTION OF PDO AND PGI WINES: ISSUES AT STAKE

Transcription

1 COUNTERFEITING AND PROTECTION OF PDO AND PGI WINES: ISSUES AT STAKE PORT IN BRAZIL ALBERTO RIBEIRO DE ALMEIDA, Ph.D. DOURO AND PORT WINE INSTITUTE (IVDP) ROME, ITALY 15 APRIL 2013

2 SUMMARY Introduction PDO and PGI in a World of symbols International protection in Brazil Difficulties Brazilian Industrial Property Code Distinctions Protection conceded Critics Registration system Port experience Conclusion

3 PDO AND PGI WORLD OF SIGNS

4 PIRATES, IMITATORS AND... OTHERS Pirates: Californian Port (and others in the USA); Russia Argentina Imitators: Puertopablo Puerto Casal Porte Noir Porte d Or Puerto Alegro Portly Ruby Brazil, Peru, India. Parasites: Port Truffles ; Pâté au Porto, etc. Great Wall of China

5 PIRATES, IMITATORS AND... OTHERS

6 BRAZIL Imitations: Trademarks: Dom Izidro vinho tipo Porto Porto Valduga Jabuticaba Port Villardi Port Porto Brazos (pending) «Quinta do Porto» for olive oil and olives «Porto» for non-alcoholic beverages, beer, fruit beverages, water, sparling water. We made opposition (still pending).

7 INTERNATIONAL PROTECTION Bilateral agreements: Concluded by Portugal (several) Brazil (1933) Celebrated by the European Union South Africa, Canada, Chile phasing-out USA The maintenance of past sins and no phasing-out Australia Homonymous: Port Phillip Registration systems: India, Brazil, Peru, Colombia, Central America. Map of Pangaea

8 INTERNATIONAL PROTECTION Multilateral agreements: Paris Convention (1883) Very weak protection Brazil is a member country Madrid agreement for the repression of false or deceptive indications of source on goods (1891) Wine appellations of origin cannot become generic Brazil is a member country Lisbon agreement for the protection of appellations of origin and their international registration (1958) TRIPs agreement Strong protection Brazil is not a member country Unbalance agreement The maintenance of past sins Brazil is a member country MERCOSUL future agreement

9 BRAZILIAN EXPERIENCE ON GI Past experience and today (GI importance) Uruguay round position (against TRIPS) Use in Portuguese of «conhaque», «champanhe», etc. or use of «tipo Bordeaux», «tipo Sauternes», etc., or «Guaraná-Champanhe» It was not considered a false indication of source But «Bordeaux» alone could not be used it was considered false indication (article 4 of the Madrid agreement) In 1964 the Supreme Court didn t allow the use of «Borbonha» - confusion with «Borgonha» (Bourgogne) even if the true origin was indicated, but In 1975 the Supreme Court of Brazil didn t protect «Champagne»

10 BRAZILIAN INDUSTRIAL PROPERTY CODE Law nº 9.279, 14 May 1996 Geographical indication Indication of source Level of protection Designation of origin (Lisbon definition) GI are not subjective rights Are not positive rights Just a negative rights It only forbids false geographical indications It is forbidden to use «type», «system», etc., but if the true geographical origin is indicated, it is not a false indication So, we are in the field of unfair competition rules or misleading publicity as it is consensual in the Brazilian doctrine

11 THE REGISTRATION SYSTEM IN BRAZIL A registration system was established but not a subjective right «Cognac» registered as a GI in the name of Bureau National Interprofessionel du Cognac and «conhaque» (in Portuguese) Regional Federal Court of Rio de Janeiro (2005) trademark «Bordeaux Buffet» for food services, buffet services, ice and other iced things refused the application for registration Completely different products (no competition) Notorious name impact in the consumer decision Take advantage of an notorious name (free rider) Parasite behaviour Analogy with the trade mark regime (famous trade marks) Finally, it is not easy to register a trade mark with a geographical name

12 THE REGISTRATION SYSTEM IN BRAZIL The registration procedure is not easy as usually it isn t on GI registration (products and services) Legal persons (several documents will be demanded) Geographical name Description of the product characteristics and qualities (link with the region) Specification GI regulation of use Legal document establishing the geographical area Process or method of production (local, loyal and continuous) Certification or control body Producers must be established in the geographical area

13 PORT EXPERIENCE The Bilateral agreement from 1933 has been a important argument to fight imitations Good relationship between both countries We also made use of the TRIPS agreement But in combination with the bilateral agreement and the Madrid agreement Registration of the appellation of origin (geographical indication) Porto Beginning of the process: 2009 Deposit (application): 2010 Registration: 17 April 2012

14 CONCLUSION Brazil has its own history on the protection of GI Brazil has interests in GI and has protected foreign GI GI are inserted in IP regime, but the protection is negative The GI regime in Brazil is closer to the Anglo-Saxon regime than to the European Continental system There is some road to go in order to fully understand GI as IPR The jurisprudence seems to go on the right direction Port has a good experience in Brazil