Contrary to the explicit statutory provisions, however, as is frequently the case within our legal system, the implementing decrees of Article 53 have only provided for protection consortia for PDOs and PGIs, expressly excluding those for TSGs. This is based on the premise that, for TSGs, the historical aspect takes precedence over the geographical one. Indeed, the protection in such cases is aimed at a “tradition” that, although originating in a specific territory, is replicable elsewhere and is characterized by a name that may not necessarily contain geographical references to a particular territory13. However, the identified inconsistency is not the sole issue; it is also necessary to highlight that, following the 2019 reform, neither Article 1 of Legislative Decree no. 30 of 2005 (and consequently, the names of the TSGs continue to be excluded from the list of “industrial property rights” 14) nor, even less, Articles 29 and 30 of the same Legislative Decree of 2005, concerning geographical indications and designations of origin, have been amended. This evidence, combined with the assertion of authoritative doctrine, according to which there are no obstacles preventing Member States of the European Union from maintaining their own national protection rules (with effect within their territory) concerning registered and qualified geographical indications, leads to the conclusion that not only has the Italian regulation on Denominations of Origin and Geographical Indications always remained in force, but it is also capable of playing an important role15. This is, above all, due to the fact that it is a regulation issued in ratification of international conventions and agreements, such as the Geneva WIPO Convention. In this regard, moreover, part of the doctrine, in favor of recognizing a national regulation of qualified geographical names and indications (even if lacking EU registration), grounds its reasoning precisely on the fact that the TRIPS 13 Regarding this point, another significant issue raised by diligent legal scholarship concerns the subjective requirements for the holder of the collective mark. Legislative Decree No. 15 of 2019, in fact, amended Article 11 of the Intellectual Property Code (c.p.i.) concerning the collective mark and introduced Article 11bis concerning the certification mark; however, it did not alter Article 2570 of the Civil Code. Consequently, the latter provision continues to refer to “the subjects who perform the function of guaranteeing the origin, nature, or quality of certain products or services,” as established by the formulation set forth following the amendment introduced by Legislative Decree No. 480 of 1992. 14 Consider the registration “with reservation of the name” for sheep and goat milk hay, which is gaining traction in the end markets for milk intended for human consumption, according to a dynamic characteristic of a distinctive sign, both in terms of the conveyed message that distinguishes the product and from the perspective of its perception as a trademark by the public. 15 In this regard, see G. Tassoni, “Traditional Specialties Guaranteed (TSG)” in Legislative Decree No. 15 of 2019, in Rivista di Diritto Industriale, Issue No. 4, 2019, p. 308. 387 PROTECTION OF TRADITIONAL SPECIALTY GUARANTEED (TSG) IN THE EU
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