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Branding and Protection of Agricultural goods of Manx origin
Because branding is an expensive exercise, it can sometimes give the impression of promising more than it can actually deliver. The aim, of course, is to protect the reputation which particular goods and services enjoy by virtue of their origin, and it is usually achieved by the trade mark, registered or unregistered, of the supplier concerned. More difficult to protect are names which indicate a geographical area or set of characteristics.
The Trade Marks Act contains provisions preventing traders from monopolizing national emblems or flags (including the famous Three Legs).
Also, to the extent that in relation to goods (including agricultural products, with an important but temporary derogation for meat) the Island is bound by the provisions of the EC Treaty relating to free movement, it is unlawful to set up any barriers to entry which cannot be justified by ownership of a relevant intellectual property right such as a trade mark or similar right.
In recent years there has been some discussion at the EU level regarding the possibility requiring imports into the EU to carry an origin mark. However, it is an issue which raises thorny issues of internal EU policy and may give rise to difficulty in terms of compliance with the EU’s GATT obligations. Early action is therefore unlikely and in any case could not apply to imports to the Island from within EU.
The present balance is therefore a fairly basic one: in general, except where issues of public safety arise, there is no obligation on importers to indicate the geographical origin of their products. However, if they choose to do so, it must not be misleading.
Where a misleading indication of origin is used, it may be the subject of a criminal prosecution under the Consumer Protection (Trade Description) Act. Also, in cases where a group of producers can show that they own a reputation arising from the geographical area from which the goods originate (eg “Champagne” for the sparkling wine originating from that area) and that reputation is put at risk by a false claim by a competitor to be a member of that group, then a civil claim may be brought to protect the reputation of the mark in question.
Other names which might once have been capable of indicating origin have by now become so generic (eg “Cheddar” for cheese) that they would be quite incapable of distinguishing the goods of any particular producer or producer group.
However, the recent grant of a Protected Designation of Origin (“PDO”) mark in relation to “Isle of Man Loaghtan lamb” underlines the possibility of a wider range of vehicles to protect the reputation of particular agricultural products and foodstuffs through their geographical origin. PDOs and the similar, but rather less strong, marks of Protected Geographical Indication (”PGI”) and Traditional Speciality Guarantee (“TSG”) were introduced by EU legislation in 1992, although the EU legislation has recently been updated. The aim of the legislation is threefold: (i) to encourage the diversity of agricultural production, (ii) to protect names from misuse and imitation, and (iii) to help consumers by giving them information regarding the origin and characteristics of the products concerned. The legislation is modeled along the lines of the French “Appellation Controllee” system for protecting the reputation and distinctiveness of particular wines. Since the inception of the legislation several registrations have been granted and there are many more applications pending.
It would be unrealistic to assume that PDO’s and the like can secure a high degree of brand loyalty in the face of strong price differentials benefiting competing products. Nevertheless, whilst the advantages which might accrue from registration might be limited that should not be a reason for ignoring them altogether. From this point of view, looking at the registrations and applications published by the EU, it seems anomalous that whilst “Scotch Beef”, “Scotch Lamb”, “Welsh Beef” and “Welsh Lamb” are the subject of PDO’s, there is no corresponding protection for “Manx Beef” or “Manx Lamb”; and that there should be a registration for “Arbroath Smokies” but not for “Manx Kippers” or “Manx Queenies”.
In principle, there would seem no reason why protection should not be available for Manx agricultural products, as it has been obtained for the agricultural products of other parts of the EU. This would involve careful preparation of an appropriate application and processing it with the Commission over a period which usually spans several months.
Adam Kelly
