Anglesey Sea Salt is now protected by the European Protected Designation of Origin (PDO) status
Anglesey Sea Salt is now protected by the European Protected Designation of Origin (PDO) status
A view from Jeremy Blum

From Birmingham Balti to Black Forest Gateau, where will protected name status end?

Casting an expert legal eye on Protected Name Status, Jeremy Blum, senior associate for law firm Bristows, asks whether every food in the EU will eventually be protected?

The recent news about the elevation of Anglesey Sea Salt, West Country Beef and West Country Lamb to EU Protected Designation of Origin/ Protected Geographical Indication status (what I refer to as a Protected Name) might raise a good question by some sceptics: How many more names of foodstuffs or drinks linked to geographical areas will, or even can, be protected?

At present there are well over 1000 names that are protected in Europe. Nearly 500 of them are French and Italian.

On a quantitative comparison, industry in the UK has a lot to do to catch up as there are only about 50 names protected - though some of those names are highly lucrative, such as Scotch Whisky.

With pending applications including Birmingham Balti (UK) Irish Salmon (Ireland) and Bayerischer Honig (Germany), there are many more to come around Europe (about 150 are currently under application).

Protected Name status does not just benefit the giant producers of well known protected names (e.g Champagne or Cognac) it also benefits those small industries and brands who might have a traditional way of making a product known by the region’s name.

The legal bit

Feta, which means 'slice', is not linked to a particular region in Greece but still obtained protection after considerable legal and political wrangling. However, Cheddar is not protected because it is a common term for a cheese variety

First, the Protected Name can be used as a brand for a product. A name can only be protected when it qualifies and that means that a product’s characteristics or qualities are attributed to a defined geographical area.

Having Protected Name status allows consumers to identify that the product has the characteristics associated with that product name and this guarantee of quality often commands a higher price.

Suppliers of products not meeting the criteria of the Protected Name, for example those suppliers outside the geographical area, cannot use the name legally.

This is because Protected Names are given broad protection in EU legislation and among other things allow the ability to stop a third-party using a name that evokes the Protected Name. This means the third-party’s use might not even be for an identical name, but even if it brings the Protected Name to the mind of the consumer it could still be infringing the Protected Name right.

For these reasons it is likely the trend in more names being granted protection will continue. However, there are criteria that a name must meet and protection is not just given to any product that has certain characteristics associated with it.

Black Forest Gateau free for all

A name cannot be or become generic. This is because then it is a common term to describe a product and other traders should not be prevented from using that name. An example might be Black Forest Gateau (Schwarzwälderkuchen).

People are likely to understand this to be a type of cake that can be made by anyone as opposed to a cake with certain qualities because it comes from the Black Forest in Germany.  Accordingly, it would be unable to obtain protection. 

More will seek protection - and they will be for more and more esoteric products that consumers might never have known had some attribute linked to the region

Similarly Cheddar is not protected because it is a common term for a cheese variety. Though the overwhelming majority of names are related to geographical areas, in rare circumstances it is possible to have protection for a  whole country or even for a product not linked to a particular area. Feta, which means "slice", is not linked to a particular region in Greece but still obtained protection (after considerable legal and political wrangling).

The Feta case shows there is also a political element to what goods qualify for protection and the Commission might take a different approach depending on the circumstances of the applicant. 

Given the benefits of obtaining protection and the near-minimum cost involved, in all probability more associations and groups will seek protection - and they will be for more and more esoteric products that consumers might never have known had some attribute linked to the region.  

The pending applications are just a few examples of many which do give some credence to sceptics who might ask, where will it end? The short answer is not for some time.