ANCORA SUL CONFLITTO FRA INDICAZIONI DI ORIGINE IN ETICHETTA E DOP/IGP: IL CASO DELL’«ALTOPIANO DI ASIAGO» AL VAGLIO DELLA CORTE DI CASSAZIONE

[Machine translation] This comment analyzes the decision of the Italian Supreme Court of Cassation on the Asiago Altopiano trademark, in which two fundamental issues are addressed for the protection of geographical indications in law in the EU legal system: the question of “evocation” and that of the survival of trademarks registered before a DOP/PGI. With reference to the first profile, the Court recalls the complex evolution of EU jurisprudence on the subject and concludes that the trademark “Asiago Plateau” is certainly to be considered evocative of the “Asiago” DOP based on all the criteria set out by the EU Court of Justice. With reference to the second aspect, the Court, having taken note of the pre-priority of the trademark, declares its survival possible pursuant to art. 14 reg. 510/06/EC, stating that there is an interest also on the part of the individual operator in being able to claim the origin of their goods through labeling (an interest also taken into consideration by the EU and national legislators, considering the numerous recent regulations on the labeling of food products and ingredients), on the basis of which the registration of the trademark and its salvation respect are justified to the subsequent protection of the toponym as DOP, without prejudice to the assessment of good faith (referred to the judge of merit). The final comment draws inspiration from this passage to underline how the growing strength of the notion of evocation is triggering a series of conflicts in the territory, due to the lack in the legislation on the protection of quality agri-food products of an explicit flexibility clause that allows the fair and professionally correct use of the toponym as a mere indication of origin. The tendency to read the discipline on geographical indications in a monopolistic key induces operators in the sector to be highly cautious (i.e. to refrain even from the conceptual combination of generic products with those PDO/PGI), sacrificing competition and numerous fundamental rights such as freedom of expression and economic freedoms. Furthermore, the current regulatory structure induces a high level of conflict in the territory of origin itself, with often uncertain outcomes due to the different sensitivities of national judges on the subject. The Author therefore concludes his analysis by hoping for a maintenance intervention of the rules in question that takes into account the various interests at stake and, drawing inspiration from jurisprudence and trademark legislation, can correctly balance the rights and interests at stake., This article analyses the judgment of the Italian Supreme Court (Cassazione) on the trademark «Altopiano di Asiago», that tackles two fundamental issues regarding the protection of geographical indications of food in European Union law: the topic of «evocation» and the conflict between a trademark and a P.D.O./P.G.I. Concerning the first point, the Italian Court refers to the ECJ case-law on the notion of «evocation» and concludes that the trademark «Altopiano di Asiago», used for a cheese produced in the specific area of «Asiago» a town in the north-east of Italy, must be considered as an evocation of the P.D.O. «Asiago» based on all the criteria stated by the European Court of Justice in its case-law on the matter. Concerning the second point, given that the trademark «Altopiano di Asiago» was registered before the P.D.O. Asiago, the Italian Court states that its use can continue in accordance with article 14 of the EC Regulation No. 510/06, also because there is a specific interest of food business operators in showing the origin of their food products, as emerges from the many recent national and EU rules on the origin of foodstuff and/or food ingredients. This specific interest could be protected also through a trademark if it had been registered in good faith before the P.D.O./P.G.I. in question. The Author's final remark highlights that the increase in the protection of geographical indications in EU law (and, in particular, the expanding area of application of the concept of evocation) is leading to many conflicts within the same territory, considering the lack of a clear «flexibility» clause in the general rules on the protection of P.D.O./P.G.I. related to the fair and lawful use of a toponym in the labelling to give a general indication of the provenance of the foodstuff. The monopolistic reading of the G.I. regulations leads food business operators to change their behaviour (i.e.: to refrain from any possible juxtaposition with P.D.O./P.G.I.) but this effect can lead to a limitation of some fundamental rights, such as freedom of expression and economic freedoms, or can increase judicial conflicts to safeguard the economic interests of competitors (with uncertain results, considering the different approaches of national judges to this topic). Finally, the Author remarks that it appears desirable a regulatory solution to this problem, which implies an update of the current regulatory framework in the same direction of trademark case-law and regulatory experience.