Christian Archambeau, executive director of the EU Intellectual Property Office (EUIPO), assured EUROPE on Thursday 12 May that his agency is fully prepared to take on the new tasks brought about by the European Commission’s recent proposal to take on non-agricultural geographical indications (GIs).
In April, the European Commission presented a draft Commission Regulation to protect the intellectual property of craft and industrial products, relying heavily, if not exclusively, on the expertise of the EUIPO, without providing an additional budget (see EUROPE 12931/1). This raises the question of whether it is in the EUIPO’s interest to take on such responsibilities without having a larger budget.
The director explained this. Firstly, when the Agency changed its name in 2016 to EUIPO as part of the trademark law reform package, there was a political will to extend its competences beyond trademarks and designs, he recalled.
Above all, the budgetary question does not arise in the same terms for the EUIPO as for the other EU agencies. “We live off the income we generate, the services we provide. We have strong finances. We have financial autonomy. Not one euro comes from the EU budget”, he stressed, recalling that the agency generated €300 million last year, with a net profit of about €40 million.
The Executive Director is not worried about the drop in registrations this year in connection with the Russian invasion of Ukraine. “We had this kind of episode during the financial crisis, during the first months of the coronavirus pandemic, but there was always a catch-up. The historical average is an increase in applications of 5% annually over 20 years. We have the financial margins to withstand this kind of fluctuation”, he assured.
Furthermore, the volume of new activities planned by the European Commission remains limited. “We are talking about 300 to 400 applications per year. As a reminder, we process 200,000 trademark applications and 110,000 designs each year”, he explained. He added that for the management of agricultural GI registrations, 400 files had been processed, mobilising about 15 people out of the Agency’s total staff of about 1,500.
For Mr Archambeau, there are synergies between the registration of agricultural and non-agricultural GIs. There is a difference in substance, but not so much in procedure. “There is a national phase followed by a European phase. These are not such different processes. In the end, it all fits into one register. So, procedurally, there are certainly synergies to be had”, he said. And, he adds: “if, at some point, we want a common register of geographical indications, we think it is possible”.
When asked by EUROPE why the French Presidency of the EU Council had pushed this issue forward, the Executive Director was cautious, believing that this issue was of great economic interest to France.
In this respect, he recalled that this dossier has remained blocked for a long time because of the “different philosophies in Europe” which oppose non-agricultural geographical indications, recalling a certain reluctance on the part of the Nordic countries, which do not have an industry concerned. These countries feared the emergence of a system that generates bureaucracy and red tape.
“I think the European Commission’s proposal to allow direct applications from countries that do not yet have a system was a breakthrough. If a critical volume is reached, we can help the Member States to implement this GI recognition system in their countries. The idea, in the long run, is to harmonise procedures in the internal market”, he analysed.
As for the upcoming legislative process, the Director was optimistic, noting a generally positive reception, although caution was still required. “If everyone agrees, a settlement can be envisaged in early 2024. In contrast, the last revision of the Trademarks package took almost 10 years. It all depends on the consensus that can be reached”.
The thorny issue of agricultural GIs
The office, based in Alicante, has all the necessary expertise to examine applications for new agricultural geographical indications (GIs) (PDO, PGI). The European Commission’s proposal aims to formalise what exists (see EUROPE 12944/15).
How then can it be explained that at the outset, some ‘GI-friendly’ countries, including Spain itself, were reluctant to give more tasks to the EUIPO?
“Any change causes concern, because countries have different interests”, the Director replied. However, for the past 4 years, the EUIPO has been managing “the pre-assessment of GIs and apparently, although this is transparent in our annual activity reports, it has not been hugely publicised, either by us or by the Commission”, he conceded. The agency has the competence, “since we examined 400 applications in 2021 (new GIs, changes to specifications, third country GIs)”. Of these 400 applications, more than 95% have been accepted by the European Commission, said the Director.
GIs are not trademarks, argue the doubters. “We are not here to take the place of the Commission on the Common Agricultural Policy. DG AGRI has a lot on its plate (the Farm to Fork strategy, sustainability, food safety, etc.). It needs to focus on the big issues. For the operational management of some regulations, such as GIs, competent and efficient bodies have been created to delegate certain competences”, Mr Archambeau assured.
Alert system, as for trademarks.
The European Commission foresees the establishment of a domain name information and alert system by the EUIPO. This is not really something new. “It will depend on the competences we are given. This system already exists at the trademark level. We have a warning system that indicates which trademarks may conflict with the registered trademark. There is also an automatic system for searching for websites that may conflict with the trademark registration. This alert system for trademarks is transposable for GIs”, explained the Director of the Alicante-based agency.
Uncertainties about respective competences.
At this stage, it is difficult to foresee how the tasks will be distributed among the actors. “For the moment, our involvement is defined as technical assistance. The regulation provides that this competence will be further defined in the future by means of delegated acts of the Commission. This is not yet clear; the Member States need to continue the discussion on the actual competences and their limits”, the EUIPO Director told us.
Today, the Agency’s services receive requests from the European Commission. The EUIPO returns the application to the European Commission with a recommendation within 4 weeks. “This is what enabled us to eliminate the backlog that had existed for many years by processing 400 applications last year”.
What about the future? It could be imagined that the new legislation, Mr Archambeau explained, would allow the European Commission to take up certain cases on agricultural GIs, as suggested in the European Commission’s proposal on non-agricultural GIs. “It should not be forgotten that the Member States retain a significant amount of power, given that the procedure starts with a national procedure over which they have control”.
The Director further developed his ideas on the future cooperation model: the EUIPO would examine the application, publish it “for opposition”, and the decision would be taken either by the EUIPO or by the European Commission. “In the event of an appeal, the Commission would retain competence until the end of the procedure”, adds Christian Archambeau.
Finally, he hopes that with the proposal, “GIs can be promoted in all European countries and abroad”. The EUIPO also implements projects to promote GIs internationally, projects originating from the European Commission in China, South East Asia, Africa, Latin America, the Caribbean and soon, “I hope, in India”. In 2021, “we have deployed around 100 GI activities”, he concludes. (Original version in French by Pascal Hansens and Lionel Changeur)