sustainability), the trademark first and foremost indicates the commercial origin of the product (or service), allowing the public to appreciate and associate a certain particularly innovative (or, specifically, sustainable) quid to one company rather than another, causing this quid to become an “added value” in the marketplace, directing the choices of consumers who desire this value and thus, again, encouraging companies to compete with each other in providing this added value and hence, in our case (and especially for wines and other agri-food products), in providing environmental sustainability. The communication that thus takes place between consumers and companies by means of a trademark is, on closer examination, in favor of the former and therefore also in favor of the latter, since companies are spurred to invest in the positive connotations of their products, making them able to respond to the new needs, including that of sustainability, exactly because through the communication of these connotations they are able to achieve a competitive advantage among consumers, which is reflected in the competitiveness of the company itself. In short, what intellectual property allows the sustainably operating company is to gain visibility, and thus an economic return for its sustainability investments, thus incentivizing it to produce in a more environmentally conscious way. The balance between exclusivity and the protection of competition and consumers is ensured by the rules that sanction corporate communications likely to mislead the public – even going so far as to impose the revocation of a trademark that conveys deceptive values and meanings to the public –, rules among which is therefore also the one now required by the new Directive: that the ecological message of which these marks or labels are bearers be “based on a certification scheme”10 or alternatively the mark to be “established by public authorities”, which in fact requires the adoption and effective application of a mechanism of controls and sanctions, whether public or private, in the absence of which the mark is to be considered deceptive. 10 According to Article 1 of the new Directive, “«certification scheme» means a third-party verification scheme that certifies that a product, process or business complies with certain requirements, that allows for the use of a corresponding sustainability label, and the terms of which, including its requirements, are publicly available and meet the following criteria: (i) the scheme is open under transparent, fair, and non-discriminatory terms to all traders willing and able to comply with the scheme’s requirements;(ii) the scheme’s requirements are developed by the scheme owner in consultation with relevant experts and stakeholders; (iii) the scheme sets out procedures for dealing with non-compliance with the scheme’s requirements and provides for the withdrawal or suspension of the use of the sustainability label by the trader in case of non-compliance with the scheme’s requirements; and (iv) the monitoring of a trader’s compliance with the scheme’s requirements is subject to an objective procedure and is carried out by a third party whose competence and independence from both the scheme owner and the trader are based on international, Union or national standards and procedures”. 114 CESARE GALLI
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