A missed opportunity for the ĠbejnaRelated Practice Area: Technology & IP Transactions
An online furore has erupted over the MCCAA’s decision to reject an application to have the beloved Maltese Ġbejna registered as a Protected Designation of Origin (“PDO”), ostensibly after opposition by local dairy giants, Benna.
At face value however, the decision appears to be legally well-founded and in conformity with EU legislation and jurisprudence in this area of law.
What is a PDO?
A PDO is one of numerous types of geographical indications protected by EU law. They are intended to promote a product’s unique characteristics linked to geographical origin and traditional know-how.
A geographical indication is a type of intellectual property right which protects the name of a product that originates from a specific region and which has certain specific qualities or enjoys a reputation linked to the production territory.
Consequently, PDOs may only be applied to products which meet certain specified criteria relating to the PDO in question, such as the production method or the geographical origin of the place of production or the sourced raw materials.
A well-known example of a PDO is Parmigiano Reggiano (PDO-IT-0016). Among numerous criteria required in order to apply this name to a product; it must necessarily be a hard, granular cheese produced from cow’s milk, which is aged for at least 12 months and which originates from the Emilia Romagna region of Northern Italy.
Where does the “Ġbejna” fall short?
The MCCAA’s refusal appears to have been based on the fact that the denomination “Ġbejna” is too generic in order to merit protection.
This decision seems to be well-founded insofar as prevailing law  dictates that PDO protection should not extend to words which are considered to be generic in the country of origin of the PDO. In this respect, the perspective of the public in the country of origin of the PDO is determinative.
In the case at hand, the word “Ġbejna” can easily be determined to be generic in light of the fact that it has a dictionary definition in the Maltese language – where it is taken to mean cheeselet.
Moreover, it is highly debatable whether the general public in the country of origin would go as far as to disqualify the consideration of certain cheeselets as a “Ġbejna”, merely on account of the fact that they are made from cow’s milk, rather than sheep’s.
The rejection of generic terms as PDOs is by no means unprecedented and is also supported by the jurisprudence of the Courts of Justice of the EU; specifically, in Case C-132/05 Commission vs Germany, it was stated that the words “Brie” and “Camembert” were too generic to merit protection as PDOs.
On the other-hand; Camembert de Normandie (PDO-FR-0112), Brie de Meaux (PDO-FR-9110) and Brie de Melun (PDO-FR-0111) have all been granted PDO status.
Is there a light at the end of the tunnel for the “Ġbejna”?
Rather than wasting further time and resources to contest what appears to be a legally well-founded decision, the applicants for the PDO would be well-advised to get back to the drawing board and revise their application, in order to ensure that it satisfies the basic criteria for registration as a PDO. The ‘generic” hurdle is one which can be easily overcome by making the PDO more specific or by widening the criteria in order to qualify for the Ġbejna PDO.
If anything, this sordid debacle should serve as a wake-up call for all those who have Maltese culture and tradition at heart and should pave the way for other local producers of traditional gastronomical delights to unite and protect their intangible assets, or risk falling behind their European peers.
 Regulation (EU) 1151/2012, Article 13(1)