HOMONYMOUS NAMES OF WINES AND GRAPE VARIETIES 89 coexistence of homonymous geographical indications for wine, as long as their deceptive use can be prevented. Article 23(3) TRIPS provides that, in the case of homonymous geographical indications for wines, protection shall be accorded to each such geographical indication, insofar as it does not falsely represent to the public that the goods in which the indication is used originate in the territory of another WTO Member. The provision is a compromise that leaves it to WTO Members to determine the practical conditions under which the homonymous geographical indications will be differentiated from each other, taking into account equitable treatment of the producers and the protection of consumers against misleading practices31. The International Organisation of Vine and Wine (OIV)32, in its Resolution ECO/3/99, recommended that, when setting differentiation rules for such homonymous names, its Member States consider: “the official recognition used in the country of origin; the length of time the name has been in use; whether the usage is in good faith; the importance of presenting the homonymous labels to marketing; and encourage mentioning sufficient distinguishing information to avoid confusion of consumers.”33. The coexistence of two homonymous geographical indications where there is no false representation or risk of confusion is also possible under Regulation (EU) No 1308/201334. Article 100 provides that a name for which an application is submitted – and which is wholly or partially homonymous with a name already registered under EU law or protected under a Member State’s national law – can be registered with due regard for local and traditional usage, and any risk of confusion. However, a homonymous name that misleads the consumer into believing that products come from another territory cannot be registered even if the name is accurate as far as the actual territory, region or place of origin of the products in question is concerned. In any case, a registered homonymous name may be used only if there is a sufficient distinction in practice between the homonym registered subsequently and the name already in the register, considering the need to, on the one hand, treat the producers concerned in an 31 M. Blakeney, pp. 27-28. OIV Resolution ECO/3/99 defined the homonymy of a geographical indication as a denomination used in several countries to designate a wine or spirit beverage of viticultural origin having a similar or identical spelling and/or pronunciation. 32 Official website: http://www.oiv.int/. 33 M. Blakeney, p. 21; B. O’Connor, p. 49. 34 M. Blakeney, p. 206.
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