When does a geographical indication of origin (GI) not tell the consumer where a product originates from? In the case of Melton Mowbray pork pies it seems, following the decision of the High Court in Northern Foods Plc v Department for Environment, Food and Rural Affairs, and the Melton Mowbray Pork Pie Association.

GIs inform consumers that a product has been produced in a particular place and that it benefits from certain characteristics peculiar to that place. In the sense that GIs operate to restrict who can use them, GIs are similar to trademarks. However, the two should not be confused. Trademarks are a sign used by an organisation (or individual) to distinguish its goods and services from those of other enterprises. A trademark is a proprietary right that gives the owner the right to exclude others from using that mark. GIs, by contrast, may be used by all producers that make their products in a designated place and whose products share specified qualities. A GI is not a property right and cannot be transferred or licensed.

An example of a famous GI is Champagne; producers of sparkling white wine can only give it the desirable 'Champagne' name if the wine actually comes from the Champagne region of France. 'Bollinger' meanwhile is a trademark - an indication to consumers that the wine is produced by (or with the authorisation of) the Societe Bollinger & Co. Place names that could become GIs are in fact prohibited from being registered as trademarks (as per Article 3(1)(c) of Directive 89/104/EEC). In 2002 the Office for Harmonisation of the Internal Market Board of Appeal held that BELLAGIO was not registrable by a Las Vegas hotel and casino of that name as a trademark for tourist-related services, as it indicated a geographical origin; Bellagio is also a tourist resort in Italy.

The global framework for the protection of GIs is laid down by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires member countries of the World Trade Organisation (WTO) to legislate for their protection. Within the European Union, GIs are governed by EC Regulation 2081/92 (the GI Regulation). This divides GIs into protected geographical indications (PGIs) and protected designations of origin (PDOs).

Article 2 stipulates that, to qualify as a PGI, a food or product must:

(a) originate in a region, specific place or country;
(b) possess characteristics attributable to that geographical origin; and
(c) be either produced, processed or prepared in the defined geographical area.

PDOs are slightly more prestigious in that the food or product must be produced, processed and prepared in the defined geographical area. There is a further type of protection for foodstuffs known as 'traditional specialities guaranteed' (TSGs), dealt with under a separate regulation (2082/92/EC); these, however, indicate a traditional production method rather than the region in which a product is made. At present there are only nine registrations of TSGs, one of the more famous being 'Mozzarella'.

In the Melton Mowbray Case, Northern Foods plc sought judicial review of a decision by the Department of the Environment, Food and Rural Affairs to forward to the European Community an application by the Melton Mowbray Pork Pie Association (MMPPA) to register 'Melton Mowbray Pork Pie' as a PGI. The geographical area defined in the application extended far beyond the Leicestershire town of Melton Mowbray, covering not only all of Leicestershire but also all of Nottinghamshire, and parts of Northamptonshire and Lincolnshire. Northern Foods, which produces pork pies in Shropshire and Wiltshire, would be excluded from using the ‘Melton Mowbray’ name if the application is accepted.

Northern Foods argued that the defined 'geographical area' in Article 2 of the GI Regulation referred to the same specific place and to the same geographical origin. Here, the geographical area was Melton Mowbray (and its immediate vicinity); hence, 'Melton Mowbray' should not be registrable as a PGI for areas beyond these boundaries. MMPPA countered that the defined geographical area could be wider than the geographical origin. The High Court agreed and held that 'geographical area' and 'geographical origin' were different concepts. The food or product had to originate in the geographical area, and it had to have a link with the geographical origin. One (here, the geographical area) could be wider than the other (the geographical origin).

As a result of this decision the MMPPA's application will now proceed for approval. Northern Foods may take its case to the European Court of Justice. While the High Court's interpretation of Article 2 is undoubtedly correct on a strict literal reading, it does seem strange that GI protection can be afforded to a food or product that does not actually come from the place from which the GI takes its name.

GIs have also been in the news for an entirely different reason. In January the EC issued two new draft regulations governing PGIs, PDOs and TSGs, following a WTO ruling in March 2005. The USA and Australia had complained to the WTO in 2003 that the EU system for the protection of GIs did not comply with TRIPS. They argued that it was discriminatory, in that it did not permit the registration of GIs by producers from non-EU member states unless the country where that producer was based afforded equivalent levels of protection to GIs as the European Union itself does (a requirement known as 'reciprocity'). The United States, which does not have a distinct classification for GIs, was therefore unable to register GIs in the European Union.

While upholding the EU system in general, the WTO ruled that the EU requirement for reciprocity should be abolished. The draft regulations duly remove this requirement and indeed appear to go further by allowing non-EU producers to submit applications for GIs directly to the European Community. Producer groups within the European Union, by contrast, are obliged to first submit their applications to their national governments for approval (as MMPPA had done in the Melton Mowbray case). As well as enabling applications for GIs in the European Union to protect such names as Basmati rice and Darjeeling tea, this may create the strange situation where it will actually be easier for producers based outside the European Union to register GIs than it is for their EU counterparts.

Peter Nunn is an assistant solicitor in Charles Russell's Intellectual Property Group.