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Geographical indications
Many producers of a certain region use product names that include an indication of geographical origin such as “Wachauer Marille” (for apricots from the region Wachau) or “Marchfeldspargel” (for asparagus from the region Marchfeld). Such indications of regional derivation do not constitute any individual’s “property”. Instead they may be used by all producers of a certain region that produce and trade the product in an established manner.
A product’s good reputation is the result of intensive effort. The likelihood that a product will be imitated or its name be misused, increases proportionately with consumers’ trust in that product’s guaranteed geographical origin, quality and method of production. Legally safeguarding a product’s name thus conduces to the producer’s economic survival as well as the protection of consumer confidence.
A distinction is made between simple names that mention the geographical origin with no implications other than stating the product’s geographical derivation and qualified indications of geographical origin that intend to show a product’s additional and demonstrable characteristics and qualities in comparison to similar products, or its time-honored method of production or allude to a special reputation associated with a particular geographical origin.
Dependent on the type of geographical indication there are different protection options:
- only for qualified geographical indications and certain product groups:
- protection throughout the EU by means of entry in a register maintained and operated by the European Commission according to Regulation (EU) No. 1151/2012 and the relevant implementing rules;
- generally, for all types of geographical indication and all products/services:
- protection as a collective trademark of an exceptional nature (geographical collective trademark § 62(4) MSchG;
- protection according to the rules of the Austrian Federal Law against Unfair Competition 1984 (UWG).
Formal Requirements
Legal protection in accordance with this Regulation aims at qualified geographical indications and – with a few exceptions – products intended for human consumption only (see classification of products). The Regulation makes a distinction between designations of origin where all production steps take place in a defined geographical area, and geographical indications where at least one of the production steps takes place in the defined geographical area or the quality or reputation of the product is essentially attributable to its geographical origin.
In your own interest be sure to use form HA 1 for your application and to follow closely the instructions of the completion assistance enclosed with the form. For additional information please see Information Sheet HA 101.
For additional questions don't hesitate to contact the Austrian Patent Office (via e-mail herkunftsangaben(at)patentamt.at or phone +43 1 534 24 - 234 or 349).
Who may apply-Representation?
Only an association of producers and processors of the product is entitled to file the application for registration. An application by an individual natural or legal person is only possible in exceptional cases (Article 49 (1) of the Regulation (EU) No. 1151/2012)
Caution: The statements made in an application must be coordinated amongst all producers/processors of the product endowed with the geographical indication to be protected otherwise, oppositions to and perhaps even rejection of the application are distinct possibilities in the course of the examination procedure.
As the Austrian Patent Office is in charge of receiving and examining geographical indications that relate to Austrian locations and regions only your, i.e. the applying association’s place of residence/business will be in Austria too. You are thus entitled to file the application without representation. However, should you wish to be represented in the proceedings before the legal department you are entitled to select either a professional representative (patent attorney or law or notary’s office) or a nonprofessional representative.
This is how you can apply:
- submission of the filing of the application at the Austrian Patent Office, at the entrance point
- personally posting the application via the Austrian Patent Office’s entry box
- by postal mail/delivery
- per telefax +43 1 534 24 - 535
Filing by e-mail is not permitted.
Fees
The fees to be paid to the Austrian Patent Office are € 605,-.
If the application is rejected or withdrawn before the date of submission to the European Commission, half of the fees will be refunded.
If several separate applications are filed relating to a common basic product and derived processed products, for each further application the fees are € 208,-.
Within one week after your application, you will receive a request for payment which includes notifications of your reference number and purpose of payment. Payments of fees may only be made after receipt of this request.
Examination/Procedure
A precondition of registration is an exact description of the product features, the product’s manufacturing process as well as pointing out possibilities how to trace a product from its source material to the final product. Official controls verify that a product complies with the corresponding product specification. These official controls are subject to a charge.
Your application is both substantively and formally vetted on a national level. If necessary, you are requested to provide missing documents. Generally, the Austrian Patent Office also gathers pertinent position statements from the Federal Ministry of Agriculture, Forestry, Environment and Water Management or other associations, organizations and institutions connected to the subject.
Should the application be complete and in conformity with Regulation (EU) No. 1151/2012, it is published in electronic form. Within 3 months from the date of publication any person having a legitime interest and a place of residence/business in Austria may lodge an opposition to the application. This opposition can only be based on reasons specified in Article 10 (1) of the Regulation. Appeals against decisions regarding opposition may be lodged with the Higher Regional Court of Vienna and subsequently with the Supreme Court. Should the application documents be altered during opposition proceedings these amended documents must be published as well and can be contested likewise.
After the term for filing opposition has elapsed or there is a legally binding favorable decision regarding the opposition the Austrian Patent Office publishes a favorable decision. When this favorable decision becomes legally final, the Austrian Patent Office transmits it to the European Commission upon which the scrutiny procedure at EU level commences.
If the European Commission considers that the conditions laid down in the Regulations are fulfilled this is published in the Official Journal of the European Union. Subsequently, a term of 3 months’ duration begins during which notice of opposition may be given in other countries. Such notices must be substantiated within a subsequent term of 2 months. After expiry of this term or there is a favorable decision regarding the opposition the designation of origin is published a second time in the Official Journal of the European Union and entered in the register of protected designations of origin and protected geographical indications.
Term of Protection
Protection commences upon the date indicated in the respective Commission Implemention Regulation and remains valid indefinitely. The designation of origin is protected in all Member States of the European Union according to Article 13 of the Regulation (EU) No. 1151/2012.
Use of the geographical indication in Labeling
The labels of products marketed with a protected name must show the Union symbols intended for these indications. Additionally, the registered name should show up in the same window. The indications “Protected Designation of Origin” and “Protected Geographical Indication” respectively their abbreviations “PDO” and “PGI” may figure in the labeling.
Infringement of geographical indications
In addition to the appropriate measures taken by food safety authorities those entitled to legal protection may seek redress in cases of infringement of protected designations of origin by means of suing for an injunction, removal and damages.
List of Austrian protected geographical indications
NOTICE: Detailed sites and documents are only available in german.
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