Citation: 1 Indus. Prop. Q. 6 1956-1958
Content downloaded/printed from HeinOnline
Wed Oct 12 03:26:55 2016
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
Articles
The Protection
of Appellations and Indications of Origin*
by M. A. DEVLETIAN, Ingenieur-Agronome (Paris)
What is an appellation of origin?
An Appellation of origin is a geographical name, enjoying
a certain reputation, which is used to designate the product of a
particular place of origin and possessing certain original qualities
which result from the geographical place and from conditions of
production allied to faithful and constant local methods.
It is in this way, for instance, that the wine growers in the
Sauternes district have for many years produced a sweet white
wine which draws its special quality from the place where it is
made and from established and unvarying local practices used in
its production.
An appellation of origin may be more or less famous and its
reputation may be either on an international, or national, or
merely a regional plane.
With regard to the place of origin, the area of production
may be great (a whole country or region) or relatively small (a
mere district surrounding a town or village).
The influence of the geographical origin on the quality and
characteristics of the product is primordial and unquestionable.
The nature of the soil (texture and chemical properties), the
sub-soil (geological formation), the climate (temperature, sunshine,
rainfall and humidity), all constitute natural factors which enter
into the matter, not only because they are favourable to this or
that plant or animal product or manufacture, but because they
also give the product its particular quality.
*) This is a summary of an article which appeared in French in four parts
in La Proprided Industrielle in November and December 1956 and January and
February 1957.
6
For example, the same variety of grape cultivated in two
regions having different soil or climate, produces two completely
different wines. For instance, the "Melon" vine-plant produces a
delicious wine known as "Muscadet" in the region of Nantes
(Western France), but a very ordinary wine when cultivated in
other regions.
Conditions of production employing unvarying local customs
introduce the human factor which is equally important.
The factors of production due to human skill are many and
include the choice of the kind of plants to be cultivated, the selection
of animal stock, and the methods of culture and manufacture.
It is therefore essential that local customs be both faithful
and invariable, that is to say, that the producers of a particular
region must have maintained certain standards over a sufficiently
long period to establish and justify a tradition. They must not
vary at the whim of the producer and they must be constant in
the interest of honest trading.
What is an indication of origin?
An indication of origin is an expression used to indicate that
a product comes from or is produced in a country, a region or a
specific place, i. e. Australian wool, French wines, Sheffield cutlery,
Paris perfumes, Egyptian cotton, Algerian dates, etc.
If it has become customary for certain products to be so
described it is clearly because those products possess certain distinctive
qualities attributable to their place of origin.
An indicationof origin, like an appellationof origin, is intended
to give information on the origin of a product and on the
quality connected with that origin, but much less fully.
Generally speaking, following the role more or less important
played by natural and human factors, there are two types of
indications of origin.
In the first class the characteristics of the product for which
the indication of origin is used result essentially from the geographical
area of production. For example, from the soil or climate:
7
Algerian dates, Australian wool; from the sub-soil: Chilean nitrates;
or from the qualities of the water: Vittel water.
In such cases, the human influence is relatively small.
In the second class, we have indicationsof origin based more
on human skill connected with a certain area rather than on any
natural geographical factor. For example, Paris perfumes are produced
in Paris and possess certain original qualities, but are made
from raw materials which do not necessarily come from the soil
or the region of Paris. The essential factor in such a case is undoubtedly
one of human skill.
The same can he said of a Paris dress which is a dress created
and coming from Paris. Certain chinaware and. porcelain which
are sold with indications of origin are the result much more of
human influence as shown in a tradition of design, of colour or
of form, or of certain technical processes, but in which the natural
factors such as the soil or the climate do not represent any essential
element.
In the first class the indication of origin is essentially based
on natural geographic conditions where the human element is often
negligable, whereas in the second class, on the contrary, the
human influence is the dominant factor.
It is for this reason that we consider that the indication of
origin is a less complete concept than the appellation of origin
which is based on a geographical area of production and on local
practices or methods of production imposing a rigorous discipline
upon the producer.
Obviously there are border-line cases where it is difficult to
say whether or not a geographical name is an appellation or an
indicationof origin and this, to some extent, explains the confusion
in the minds of those who use both terms without distinction.
The difference between an appellation or indication of origin
and a trade mark
The trade mark is above all an indication which enables a
distinction to be made between the products of one producer or
trader and those of another. The origin of the product is clearly
indicated but it is more a matter of specifying who is responsible
for producing or manufacturing or selling the goods rather than
indicating a geographical place where they are made. A trade mark
is not necessarily connected with a region or area of production.
nor is it necessarily bound to a particular method of manufacture.
Constant and unvarying methods are undoubtedly part of an
appellation or indication of origin, whereas, on the contrary, methods
of production or preparation of a product sold under a
trade mark may vary according to the policy of the owner of
the mark.
Although a trade mark may on occasion be collectively owned.
it is usually the property of an individual, a firm or a company.
On the other hand, an appellation of origin necessarily relates to
a collective right.
While the proprietor of a mark may assign it or licence it to
anyone he choses, the producers who comply with the conditions
of production of a product with an appellation of origin (i. e.
definite area of production, local methods, . . .) are the only ones
who can properly use this appellation of origin, and they must not
dispose of this right to a third party who does not comply with
the conditions of production.
It may therefore be said that the right to use an appellation
of origin is a collective proprietary right over a geographical name
subject to obligations as to the standard of production.
The history of the appellation or indication of origin
A study of many documents has shown that the use of a geographical
name to indicate the products of a particular region is
an ancient custom.
One finds it in ancient Greece, four centuries before Christ:
in Corynthian wines, Sicilian honey, Naxos almonds and Paros
marble, etc.
One finds it again in Roman times: in Egyptian dates, Brindisi
oysters, Iberian hams and Carara marble, etc.
One can find in an export treaty in 1712 a long list of geographic
names including the following: Polish lead, Bordeaux wine,
9
Cognac brandy, Champagne, Rouen sewing thread, Persian and
Chinese silks, London cloth, linen cloth from Gand and Russian
leather, etc. Most of these appellations which were current in
former times are no longer used.
Nevertheless, appellations and indicationsof origin are always
widely employed because they correspond to a need, and one
can find them in practically every country in the world *and in
every sphere. This is not generally known and we venture to give
a few examples:
Mineralproducts: English anthracite, Ruhr coal, Carara marble,
Sheffield steel, Swiss knives and watches, Limoges porcelain, Delft
china, Vichy water, etc.
Plant products: Wines ): Champagne, Bordeaux, Medoc, Sauternes,
Chablis, Port, Madeira, Sherry, Chianti and many others;
Cognac, Armagnac brandies; Scotch, Irish and Canadian whiskies,
Kentucky bourbon and Virginia Rye; Devonshire and Somerset
ciders; Indian and Ceylon teas; Brazilian and Arabian coffees;
Jaffa oranges; Canadian and Indian River (USA) apples; Canary
bananas; Dutch bulbs; rice from Iran; Havana cigars; Irish linen,
etc.
Animal products: Bresse chicken, New Zealand lamb, Whitstable
oysters; Roquefort, Gorgonzola and many other cheeses;
Danish butter; Australian and Shetland wools, Harris tweed; Aubusson,
Persian and Chinese carpets, etc.
Miscellaneous: French perfumes, Paris dresses, etc.
Why should appellations and indications of origin be protected?
First, such protection is a proper safeguard of rights acquired
by honest and reputable producers, against infringements and
1) Appellations of origin for wines and spirits are numerous and it is
impossible to mention them all. In many wine growing countries the methods
of production are very carefully determined and strictly regulated. This is the
case in France for instance, where a special organisation " l'Institut national des
appellations d'origine " has been established by legislation to organise the protection
in France and abroad of the appellations of origin of French wines and
spirits.
10
improper use of appellations of origin, which constitute unfair
competition.
Products sold under an appellation of origin correspond to
certain standards of quality and price which result from a self
imposed discipline of the producers, whereas products which have
improperly adopted those appellations are sold with different
standards and at lower prices. In these conditions, the consumer
may be tempted to buy a cheaper product and so gets the imitation
instead of the original. Moreover, as the cheaper product is often
of inferior quality, it would discredit the original appellation which
it is infringing.
For instance, the real Sauternes wine is produced under very
strict conditions and consequently, the price is relatively high, but
the product which wrongly adopts this description is nearly always
a combination of ordinary wines of lower price and quality.
Secondly, the protection of the appellation of origin is also
a protection for consumers against confusion and deception.
When a consumer asks for a bottle of Champagne or a Roquefort
cheese, a box of Havana cigars, a bag of Brazilian coffee or
a Swiss watch, it is the geographical origin shown by the name
which is the principal reason for the purchase, because he knows
that when a product is sold under this description there are attached
certain qualities and characteristics which he wants, and which,
as we have shown, are the result of certain methods of production
in a certain area.
Why are appellations of origin Infringed?
Whatever may be the reasons given by persons who infringe
(that is to say, improperly use) an appellation of origin and who
wish to justify their act, fundamentally their principal motive is
the desire to profit from the already existing reputation and
market for the particular product which is rightly entitled to use
that appellation.
A wine producer for instance, who wishes to market his wine
must go to some effort and expense to promote his product. To
11
avoid such effort and expense, he may simply try to take advantage
of the reputation of a wine already well-known and appreciated
by consumers by using a known appellation of origin and
selling his wine under that name.
In this way, he not only finds a ready-made market but he
can also sell his product at a higher price than he would have
been able to do, had he not infringed an appellation already familiar
to the public.
Reasons given by an infringer to justify the use of an appellation
of origin
A. He did not know what name to use to describe his product, so
he used a name already known to the public with the intention,
accordingto him, of describing the type of product ratherthan
the place of its origin.
With regard to the first part of this argument it is clear that
the infringer wished to benefit from a reputation already established,
but this is more an admission of fact than a justification. If a
name is already known to the public, it is undoubtedly due to the
efforts of the legitimate producers who have an exclusive right to
the name.
As to the second part of the argument, if the original product
possesses certain qualities, it is because of a combination of human
skill with geographical factors. For the product made in some
other region, the geographical factors can never be the same, and
it is impossible for the imitation product to possess the original
and essential characteristics, even if certain general and secondary
characteristics may be comparable.
The following example will serve to illustrate this:
The wine-plant known as " Chardonnay " when cultivated in
certain soil possessing a certain particular sub-soil known as "kimm6ridgien
" in the region of Chablis (France) produces the wellknown
wine " Chablis ", but when cultivated in neighbouring
districts, the wine no longer possesses the same characteristics and
has no right to the appellation "Chablis ".
12
The argument is not only wrong, but it is interesting to note
that the infringers themselves do not appear to believe in it. If
they were sincere, they would attempt to copy as closely as possible
the methods of production and adopt the strict requirements appropriate
to the appellation of origin; this would still not entitle
them to adopt the appellation, but at least it would be a proof
of good faith.
In actual fact, appellations of origin are adopted haphazardly
as may be seen in the typical example of wine sold as
"Dry Sauternes ", whereas the genuine "Sauternes" is a very
sweet wine. Similarly "Sweet Burgundy" is used for red wines
having a high sugar content, while the authentic red "Burgundy"
wine is not sweet.
Such examples of infringement explain why an Australian
producer, on tasting a perfect example of an authentic Burgundy,
remarked that the wine was very good, but lacked in his opinion,
the characteristics of Burgundy!
A further proof of the absence of good faith on the part of
infringers is that, while pretending that they employ true appellations
of origin to describe the type of product, they are in most
cases careful not to mention on their labels some such description
as " type ", " kind " or " imitation ". While this would still constitute
unfair competition in relation to the legitimate producers, it
would at least have the advantage of indicating to the consumers
that it was an imitation.
B. Infringement has not lead to any protest by the producers
concerned.
An inquiry made in several countries shows that this statement
is by no means well-founded.
In spite of numerous difficulties in obtaining information as
to abuses, producers have often protested against practices of
infringement, but there has been little hope of obtaining results
when the legislation of the country, where infringement is practised,
does not make provision for prohibiting it and where there
is no competent authority to deal with the question.
13
Very often diplomatic representatives of those countries
whose appellations of origin have been infringed have protested
to foreign Governments, but in most cases, the lack of adequate
legislation, the absence of a competent tribunal, the lack of information
from the public and, above all, the pressure brought
by the offenders on their own Governments under the false pretext
" to protect or encourage national industry ", have made intervention
very difficult.
Further proof that producers are by no means disinterested
is found in the existence of regulations adopted for many years
in some countries to fight misuse and infringements of indications
and appellations of origin, and in the efforts which have been
made over the passed 60 years (a) to incorporate in the framework
of international agreements: i. e. the International Convention
for the Protection of Industrial Property and in the Madrid
Arrangement for the prevention of false indications of origin, and
in treaties and bilateral agreements, provisions for the protection
of appellations and indications of origin; (b) to improve legislation
in this field; and (c) to intervene on every possible occasion,
especially before the Courts.
C. The adoption of an appellationof origin is not harmful to the
legitimate producers, and it may even be considered to procure
a certain amount of publicity for the true product.
If, as a matter of principle, such a statement had any foundation,
it would be difficult to understand why owners of trade
marks and other industrial property rights go to such trouble to
prevent infringement. The damage done to producers whose appellations
have been infringed is undoubtedly real, both materially
and morally.
First of all, when an article is sold under an infringed appellation
of origin, it is more often than not sold instead of the
original article, the more so because the imitation product is
usually cheaper. It is also likely that some uninformed consumers
may lose interest in the true product after an unhappy experience
with an imitation.
14
Again, the volume of imitation goods may completely overwhelm
the original and authentic product and the consumer's taste
is thus spoiled or altered.
The Courts have, in fact, recognised that actual damage can
be suffered by the legitimate producers and in countries which
have legislation against infringement and fraud in regard to appellations
of origin, they not only sentence the offender to a fine,
but also order him to pay damages to the representatives of the
producers who have brought civil actions.
Infringers themselves do not fail to protest against the same
practices when they are the victims. For instance, Chilean producers
who have not hesitated to use foreign appellations of origin
for their wines have protested vigorously when their own Chilean
names of origin have been used for wines produced in another
country.
D. Rights have been acquired by the inlringersby long use.
To recognise this point of view is to admit that an abuse can
create a right.
A detailed study of infringements shows that they are not so
general as we are lead to believe.
Not only are the conditions of production different from
those of the true product, but they vary from one producer to another
and even a producer may himself vary them according to
the market demand. As we have seen, the infringer does not bind
himself to a strict discipline, his chief aim being to use a name
already known to the public and for which there is a ready-made
market.
It is symptomatic that, in order to establish the theoretical
basis for their infringements, the producers in some countries have
found it useful to name their towns or localities with the original
names of other areas famous for an industry or a specific product.
I think, for instance, of a town in the United States where porcelain
is made called "Limoges", which is the name of the famous
porcelain producing town in France.
15
Conclusion
Mr. Phesey, the British Delegate to the Wine and Spirit Congress,
in a speech at the International Exhibition at Liege, in
1905, expressed the following opinion on the motives for the use
of false appellations: "It is both distressing and surprising to hear
the reasons put forward to justify such a practice. Men of unquestionable
reputation seriously maintain that the long abuse of
a wine grower's name has deprived the latter of his undeniable
and exclusive right to that name, which has now become a generic
term and may be used by anybody according to his fancy ... What
is the motive behind these false names? Let our conscience answer
in all sincerity! The motive is no better than that which prompts
a person to gild a sixpence and to pass it off as a half sovereign."
The protection of appellations and indications of origin and the fight
against infringement and fraud
Having examined the concept of both appellations and indications
and the reasons why they should be protected, we should
review briefly the efforts made to ensure such protection and to
prevent infringement and fraud.
For a very long time steps have been taken against such infringements,
but, as it is impossible to set out here every case, we
have shown a few examples in a few countries in order to make
it clear that it is not a question of isolated or exceptional cases,
and that the concern for the prevention of infringement is both
real and general 2
).
France
As far back as 1316, merchants who applied the stamps of
the city of Sedan on cloth made elsewhere were put into the iron
collar!
A decree of King Jean in 1350 provided that inn-keepers must
not sell wines from a particular region or country under a false
description of origin, subject to a fine and confiscation, and a
decree of Charles VI, in 1415, made similar provision.
2) A fuller examination of the history in many countries will be found
in the original article in La Propridtd Industrielle.
16
By-laws adopted by the town of Carcassonne in 1666, provided
for six hours in the public pillory for those who used the city
mark on cloth made elsewhere.
England
The Cutler's Company Act of 1623 set up the corporation of
cutlers whose duty was to supervise the use of marks in the district
of Hallamshire to preserve the reputation of cutlery produced in
that area.
In 1898, the High Court condemned the use of the description
" Scotch ham " for hams originating from America.
In 1913, the High Court condemned the use of the description
"British Tarragona Wines " which contained only 15 o genuine
Tarragona, and in 1923, the High Court similarly condemned the
use of "Tarragona Port" as a false trade description.
Germany
In 1900, the Solingen Chamber of Commerce took action
against two local firms who had stamped the word "Sheffield"
on table knives of their own manufacture.
Belgium
A judgment of 1890 of the Commercial Court of Brussels
declared that the name of a locality placed on a product for a
considerable time, with the purpose of indicating a producer or
a special local process, confers an exclusive right and may not be
used, and it is not permissible for another manufacturer, who
does not possess a factory or a depot in the area, to indicate this
locality in his trade mark.
USA
In 1895, a decision of a circuit court of the Southern district
of New York declared that the town of Karlsbad had the exclusive
right to designate by its name mineral waters produced in its
territory and salts manufactured from those waters.
A decision of 1898 of the Federal Court of New York prohibited
the use of the name "Plymouth " for gin not manufactured
in Plymouth.
17
Present situation
Although the fight against infringement and abusive uses of
appellations and indications of origin is old, it is only during the
last 70 years that the protection of geographical names has been
developed and organised, largely through the growing interest of
professional groups (especially producers), lawyers and administrations.
Over this period considerable progress has been made and
at the present time a number of countries respect both appellations
and indications of origin.
It must he pointed out that a number of international organisations
or associations have expressed their interest in this question
and have without hesitation adopted resolutions or recommendations
in favour of protection.
These bodies include the International Association for the
Protection of Industrial Property, the International Chamber of
Commerce, the International League against Unfair Competition
and the International Office for WineS 3).
On the international level, protection has been granted to
appellations and indications of origin in a number of International
Conventions and agrements, both bilateral and multilateral, in-
cluding:
(a) the Paris Convention for the Protection of Industrial Property
which provides in article 10 that "the stipulations of the
preceding article 4) shall be applicable to all goods which
falsely bear as an indication of origin the name of a specific
locality or country, when such indication is joined to a trade
name of a fictitious character or used with fraudulent intention
";
(b) the Arrangement of Madrid for the Prevention of False Indications
of Origin on goods which deals with the subject of
appellations in Articles 1, 3b" and 4;
(c) the General Agreement on Tariffs and Trade which provides
in article 9: "The contracting parties shall co-operate with
3) For the texts of resolutions of these bodies, see La Propridte Industrielle,
December 1956.
4) This Article provides for seizure of the goods bearing a false indication.
18
each other with a view to preventing the use of trade names
in such manner as to misrepresent the true origin of a product,
to the detriment of such distinctive regional or geographic
names of products of the territory of a contracting party
as are protected by its legislation. Each contracting country
shall accord full and sympathetic consideration to such requests
or representations as may be made by any other contracting
party regarding the application of the undertaking
set forth in the preceding sentence to names of products which
have been communicated to it by the other contracting party ";
(d) the International Convention on the use of appellations and
indications of origin in respect of cheeses signed at Stresa in
1951 5).
There are in existence many bilateral agreements which contain
provisions for protection, as for instance, those between
France and twenty-eight countries, and between Portugal and
twenty-one countries. The
agreement between Portugal and the United Kingdom.
for instance, was made effective in the United Kingdom by the
Anglo-Portuguese Commercial Treaty Act of 1914, which contains
the following provisions: "the description 'Port' or 'Madeira'
applied to any wine or other liquor other than wine the produce
of Portugal and the Island of Madeira respectively, shall be deemed
to be a false trade description within the meaning of the Merchantise
Marks Act of 1887, and that Act shall have effect accordingly
. . . " Further protection to " Port " was given in the AngloPortuguese
Commercial Treaty Act 1916.
Examples of other recent bilateral agreements are those between
Italy and Austria, and Italy and Argentine in 1952, and
between Germany and Cuba in 1954.
Legislation providing for the protection of appellations and
indications of origin exists in many countries and falls into two
categories:
5) The text of this Convention was published in La ProprieteIndustrielle,
February 1953.
19
(a) legislation whose object is the protection of consumers against
deception as to the description of goods, in particular descriptions
relating to their origin, and the protection of producers
and traders against unfair competition;
(b) legislation dealing only with the protection of appellations
and indications of origin and sometimes only a single appellation,
and establishing the conditions in which a particular
product must be produced if it is to be sold under that apel-
lation.
Not all legislations provide a perfect protection for appellations
and indications of origin, but in the majority of countries
the laws are sufficiently effective to give protection against fraud
and infringement.
We must add, however, that a few countries - fortunately
only a few - provide a more extensive protection for their own
appellations than for those of goods imported from abroad. We
shall not mention their names but we must deplore such an inequitable
practice.
Legislation, more or less effective, exists in the following
countries, among others: Germany, United Kingdom, Argentine,
Belgium, Brazil, Cuba, Spain, France, Switzerland and the United
States of America. We regret that space prevents us from giving
details of the laws in force.
There have been many judicial decisions in the various countries
dealing with fraud, falsification and infringement of appellations
and indications of origin; these arise from complaints by
consumers or traders, or from professional associations as well as
from the public administrations. Many other cases in this field
reach an amicable settlement through the intervention of interested
producers.
Here follows a brief selection from decisions condemning the
improper use of appellations and indications of origin:
Germany
"Roquefort" in 1934 and 1935.
"Cognac" in 1935.
20
United Kingdom
"Scotch Ham" for imported American Ham in 1898.
"Chablis ", "Sauternes" and "Burgundy" in 1932.
" Sherry " in 1947 and 1948.
"Australian Port" for produce of Australia in 1951.
" Scotch Whisky" for a mixture of Scotch whisky and other
spirits in 1952.
" Old Wilkie Scotch Type Whisky - Produce of Holland"
in 1953.
Belgium
"Champagne" in 1939, 1951, 1953 and 1954.
"St. Emilion ", "Bordeaux ", "St. Julien " and " St. Esthphe"
in 1948.
The description "of France" or "of Paris" in 1951 for
luxury goods not made in France.
France
This being a country having a great interest in the strict protection
of wine names, the decisions concerning wines and spirits
are very numerous. But in addition one finds decisions dealing
with appellations of other countries such as:
"Madire" in 1902, 1926 and 1934.
"Porto" in 1926, 1934, 1935 and 1951.
"Asti Spumante" in 1949.
"'Eagle Whisky, Scotch Type" in 1954.
U. S. A.
"Roquefort" in 1933 and 1935.
Other decisions covering, inter alia, " Akron Cement ", " California
Pears ", " St. Louis" and "Milwaukee" Beers,
"Plymouth Gin ", etc.
The protection of appellations and indications of origin is of
interest to all countries since it aims at protecting the consumer
against deception in the quality and origin of the goods he buys,
and the producers against unfair competition and infringement of
his appellation. Such protection is as justified as that granted to
21
trade marks, patents and copyright, and experience has shown
that it is no more difficult to ensure.
There are two reasons which may explain the slow progress
made in some countries, towards the solution of this question of
protection. One is the determination of infringers to continue their
practices. This cannot be admitted. Abuse does not create a right,
and the rights of the legitimate producers are much more important
than the habits of an infringer. The other reason is the lack
of information among interested parties, both producers and
administrations, as to the best means to ensure simply and effectively
the necessary protection. The growing interest shown in many
countries for indications and appellations of origin, proves that
this is not a difficult problem and remedies are easily found.
It can be said, however, that certain infringers have declared
that they adopt appellations, to which they have no proper right,
principally because their competitors do the same and that they
would be prepared to give up the practice if their competitors also
did so.
It is of interest to note some of the statements made by some
American wine experts which are quoted from recent publications
of United States professional bodies.
"American wine makers should adopt American place names.
They can make just as good wines as Europeans. They should no
longer find it necessary to lean upon European wine names. "
"The more involved foreign sounding wine type names hold
back total wine consumption by helping to perpetuate the idea
that wine is more foreign than American. "
"The advisability of using such foreign names as. 'Burgundy'
and 'Sauternes' for Californian wines has often been questioned.
Undoubtedly it would be desirable to develop unique and distinctive
names which would be characteristic of our wines. "
As to the means of protecting appellations and indications of
origin, one sees from the various national legislations that such
means may differ greatly according to the country and may be
more or less complicated, and more or less effective.
22
To justify protection, the appellations must first be recognised
and defined in the country of origin, which must also determine
what are the local and constant methods relating to the appellation
(concerning principally the natural conditions of production, the
areas of production, and possibly processes due to human skill).
It would be desirable, to avoid differences between producers, that
these factors should be laid down in a text, that is to say in a
professional code of practice, a set of standards, administrative
regulations or legislation 6).
If adequate protection is to be provided, the legislation must
contain provisions for the prevention of fraud, and the infringement
and. abusive use of both appellations and indications of origin,
including any use which might lead to confusion in the minds of
consumers as to the origin. (As for instance the addition of the
terms " kind ", " type '", " similar ", etc. even if the true origin
of the product is also shown.)
Legal action should be available either to the Administration
or the competent legal authority or on the initiative of an interested
party. Legislation should also provide penalties to discourage
offenders. These might be either administrative sanctions such as
seizure or prohibition of sale, obligation to modify labels, etc., or
judicial sanctions such as fines, publication of decisions taken
against the offender either in newspapers or by fixing them to his
premises, or damages to be paid to injured producers, and, in the
most serious cases, imprisonment.
In order that an appellation of origin should be protected
in a country other than that of production, it is essential that it
should be effectively protected in the country of origin and that
the laws of the country other than the country of origin should
provide an effective protection against fraud and infringement,
either as a result of international multilateral or bilateral agree-'
ments or on their own initiative.
6) In France, for example, the National Institute for Appellations of Origin
is responsible for codifying, supervising and publishing local standards and
methods in respect of appellations for wines and brandies.
23
It is desirable that the country of production should give to
other countries all the information which the authorities of those
countries need to fight effectively against fraud and infringement,
that is to say, a list of its appellations of origin and the means,
by way of documents accompanying a product, seals or labels, to
facilitate recognition of the right to an appellation of origin.
Finally a close and active co-operation between the competent
services and organisations in the producing country and the consuming
country would no doubt facilitate control and provide more
effective protection.
A Letter from Belgium
by Thomas and Antoine BRAUN, Advocates, Brussels
I. Legislation
1. -- The draft law in relation to disclosure and working of
inventions and manufacturing secrets concerning the defence of
the territory or security of the State has now been adopted by the
Chamber and is the law of 1 0th January, 1955 1).
It prohibits the disclosure of inventions prejudicial to the
interests of territorial defence and establishes control of the exploitation
of such inventions. The State reserves the right to a
licence or even to the transfer of the invention, on payment of
compensation.
2. - Similarly, we wish to draw attention to the Brussels
Agreement of 1 2th October, 1954, between Belgium and the United
States of America with a view to facilitating the mutual exchange
of patents and technical information in relation to defence (Moniteur
Belge, 2 4 " March, 1955).
This agreement was concluded within the framework of the
mutual defence agreement signed at Washington on 27 ,h January,
1950.
1) La Proprietd Industrielle, 1955, p. 63.
24