23 February 2017Jurisdiction reportsElisabetta Guolo and Andrea Cappai

When oils ain't oils

Unfortunately, it is also one of the most counterfeited products, and in Italy the list of potential fraudulent actions is long. Forgeries and alterations of either geographical indications (GIs) or designations of origin can be an IP infringement and a criminal offence.

The list of fraudulent practices also includes so-called Italian sounding—the production and sale of food containing a false evocation of the Italian character in order to lead consumers to believe that there is an Italian origin. Here, the distinctive qualities of the product are not counterfeited.

The interplay between food legislation and IP law is increasing. To understand this relationship, it is necessary to summarise European and Italian rules on the designation of origin on virgin olive oil labels and packaging.

According to Regulation (EU) No 29/2012, geographical origin is significant in terms of taste and quality in connection only with virgin olive oil, not other categories of olive oil. Since the designation of origin on non-virgin olive oil may lead consumers to believe that quality differences do exist, hence distorting the marketing of this kind of oil, only extra virgin olive oil and virgin olive oil shall bear a designation of origin.

Therefore, olive oil (composed of refined olive oils and virgin olive oils) and olive pomace oil shall not bear such designation.

For single-origin virgin olive oils, the designation of origin shall consist only of a reference to the EU member state, the union or a third country; for blends of olive oils, the designation shall indicate if the olives originate from the EU, from outside the EU, or both.

If a protected designation of origin or GI is involved, it shall be used in accordance with the provisions of the product specification.

EU law

Geographic trademarks and business names applied for before December 31, 1998 under Directive 89/104/EEC or no later than May 31, 2002 under Council Regulation (EC) No 40/94 shall not be considered to be designations of origin. These types of distinctive signs filed/registered after those dates are, on the contrary, considered designations of origin.

On July 1, 2016 Italian Legislative Decree No. 103 of May 23, 2016 entered into force, introducing sanctions for breach of Regulation (EU) No. 29/2012.

According to the Italian Ministry of Agricultural Food and Forestry Policies, it is forbidden to use wordings such as “Italian oil obtained from olives harvested in the Valtiberina” or “oil of Romagna”, even if truthful. It is also forbidden to include symbols, images or illustrations that can evoke a GI that is different from the one indicated on the label.

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