Living with “Nero Lifestyle” (or How to Prevent “Delimited” Trade Marks From Burning Geographical Indications Down)

Abstract

Abstract The long-awaited decision by the EU General Court in the “ Nero Lifestyle ” case sets an important precedent in the problematic relationship between subsequent trade marks and Geographical Indications (GIs), more precisely for the case of trade marks “delimited” to compliant products. Although in the end the EU judges annulled the contested “ Nero Champagne ” trade mark, the decision produces more questions than answers for the future registration of trade marks incorporating GIs. On the one hand, the decision aggravates the uncertainty related to the grounds for protection of GIs, especially regarding the issue of exploitation of or prejudice to reputation, let alone evocation. On the other hand, the decision creates an imbalance in the burden of proof and control placed on legitimate GI producers, in the face of a certain “institutional disengagement” by EUIPO. This article aims to tackle such problematic implications from both perspectives. After presenting the policy options, the reconstruction will focus on a more pragmatic solution within the existing legal framework: the proposal is to extend by analogy the regime of notification for prepacked food using GIs as an ingredient, in order to avoid a potential scenario where the uncontrollable explosion of trade marks incorporating GIs burns the system down .