The Concept of Geographical Indications

Just as in many other areas of industrial property, the Industrial Property Law (IPL) contains innovations concerning geographical indications. Although Industrial Property Code (IPC), Law No. 5,772/71 contemplated protection of geographical indications, it did so only implicitly. In effect, the cited piece of legislation ensured protection of geographical indications by prohibiting their registration as trademarks.

The IPL, however, established more objective protection than did the earlier IPC. This is noteworthy in a country like Brazil, which has not had a strong history of protecting geographical indications, for reasons that include the heavy immigration of Europeans into the country in the early 20th century.

In addition to maintaining the protection for geographical indications established in previous legislation, the IPL introduced new provisions. The first concerns two forms of protection and establishes two concepts: indication of origin and appellation of origin. In both cases the origin of a product or service is the element that determines its character. Indication of origin is a less rigid concept; appellation of origin is the case when not only the origin, but also human and geographical factors distinguish the product or service.

This conclusion is based on the definitions established in the IPL, which are as follows:

Indication of origin is the geographical name of a country, city, region or location in its territory that has gained renown as a center for extracting, producing or manufacturing a given product, or for rendering a certain service; and

Appellation of origin consists of the geographical name of a country, city, region or location in its territory that designates a product or service whose qualities or characteristics are exclusively or essentially a result of the geographical environment, including natural and human factors.

Although the differentiation of indications of origin and appellations of origin has been criticized by those who see only the latter as capable of adding value to a product or service, in fact this differentiation has proven adequate, at least to date, to meet the demands of Brazilian producers in the early stages of previously uncharted territory.

The first Brazilian geographical indication recognized was "VALE DOS VINHEDOS" (red, white and sparkling wine), which was considered an indication of origin. In the future, "VALE DOS VINHEDOS" may meet the legal requirements for being considered an appellation of origin.

For producers in certain locations, regions or countries, geographical indications in their broader sense (indications of origin and appellations of origin) are true symbols of quality and excellence that add considerable value to the goods or services. This is evidenced by the fact that many consumers purchase cheese, wine, meat, tea, coffee and a variety of natural products at a much higher price than products from an unrecognized origin. Specifying origin presupposes rigid controls on the entire production process, from the use of select raw materials and storage standards to other steps that guarantee a product’s distinguishing characteristics.

Typical, unique characteristics and peculiarities of certain products distinguish them from competing products on the market. Considering rising competition in all economic segments, having a product with a recognized origin, whether an indication of origin or an appellation of origin, must be a goal of producers competing in this market niche.

The introduction of Resolution No. 75/2000 regulated registration of geographical indications with the Brazilian Patent and Trademark Office (BPTO). Therefore, those interested in having a product or service from a certain region or location recognized for its geographical indication must meet the conditions set forth in the cited Resolution. The Resolution’s text may be found on our website at (www.dannemann.com.br).

As noted, the first recognized Brazilian geographical indication was "VALE DOS VINHEDOS" (indication of origin) for "red, white and sparkling wine." The BPTO is examining other Brazilian geographical indications, such as: "PAMPA GAÚCHO DA CAMPANHA MERIDIONAL" (beef and its derivatives) and "TERRAS ALTAS" and "ALTO PARAÍSO" (coffee). Foreign geographical indications recognized in Brazil include: "REGIÃO DOS VINHOS VERDES" (Portugal), "COGNAC" (France) and "FRANCIACORTA" (Italy).

In this context, decisions handed down by the BPTO and our courts warrant reflection due to the advances they represent concerning the matter.