Say Cheese! A Sharper Image of Generic Use Through the Lens of Feta
European Intellectual Property Review, Vol. 5, 2007
23 Pages Posted: 16 Apr 2007
The generic use of geographical product names has persisted as the single most controversial issue in Geographical Indications (GI) law for over a century. The controversy is compounded by political compromises at international trade negotiations, with judicial resolutions in multilateral disputes being the exception. One such exceptional case was the recent Feta dispute, where the European Court of Justice (ECJ) considered the test for generic status under the pan-European registered GI regime. The ECJ ultimately upheld the European Commission's finding that Feta was not a commonly used expression for a type of white cheese in brine, instead designating cheese with a specific Greek origin. In the process, the litigation generated an extensive unpacking of the test for genericide. A puzzle posed here was that Feta had been produced in Germany, Denmark and France for several decades. This article revisits the reasons for why this initially significant evidentiary finding was subsequently overshadowed. While generic status is based on a factual enquiry the threshold to be established, the categories of admissible evidence and the hierarchies of their importance all reflect the competing interests at stake. This in turn highlights unresolved tensions in the Unfair Competition heritage of this shadowy branch of Intellectual Property law.
Keywords: Geographical Indications, Intellectual Property, Generic, Feta, Unfair Competition
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