On February 2, 2021, the transition period of the Law of Ukraine «On the Main Principles and Requirements to Organic Production, Circulation and Labelling of Organic Products» should be over. And though the law hasn’t been fully adopted yet, operators of the organic market, as well as others, should be ready for the new labelling rules. This matter raised the greatest number of questions so we decided to ask for clarification from experts.
Food labelling relates to several questions at once: production of products, informing consumers, advertising and intellectual property.
Such objects as trademarks are also a part of labelling. The Law of Ukraine “On food information for consumers” defines labelling as a word, description, sign for goods and services (trademark), graphic image or symbol that relates to food and is placed on a packing, label (sticker) or a collerette; in case there is no packing — it should be mentioned in a document or message that come with the product or refer to it.
Yulia Movchan, an expert of the EU project «Support to Agricultural and Food Policy Implementation» (SAFPI), reminds that according to the Law of Ukraine «On the Main Principles and Requirements to Organic Production, Circulation and Labelling of Organic Products», an organic product — is a product obtained as a result of organic production. And organic production is a certified activity related to the production of agricultural products and it includes all steps of production — from primary production to packaging that is made in compliance with legal requirements in the sphere of organic production, circulation and labelling of organic products.
According to the law, only products obtained as a result of organic production and with a certificate can be labeled as organic.
Also, the law contains a direct prohibition of labeling the products, which were not obtained as a result of organic production or were produced during the transition period, with any signs or inscriptions like «organic», «biodynamic», «biological», «ecological», «organic» and/or any cognate words or derived from these words with prefixes «bio-», «eco-» etc in any language. Thus, eco-beer, eco-chips, bio-yogurt or organic strawberry can be named like this only if there is a related certificate.
Labellings that include graphic images, the name of a product or its trademark are also under the law regulation. All these elements are a part of labelling and should contain the complete information about a product for consumers. This information should be complete and accurate, not to mislead consumers.
A trademark, of course, is a subject of intellectual property but still, it’s also a part of labelling.
And as a part of labelling, it may mislead consumers if it contains images or inscriptions that do not match the product content. The same applies to organic products: if there is an inscription or image “organic”, «biodynamic», «biological», «ecological», «organic» or derivatives that are parts of a trademark, but the product doesn’t have any confirmation of organic origin, such information is actually misleading.
As Yulia Prokhoda says, a lawyer, patent attorney of Ukraine, intellectual property expert, now during the registration of such trademarks for food products, applicants are warned that they will not be able to use such trademarks without a certificate.
Regarding trademarks that were registered earlier, at the moment there is no legal mechanism to invalidate such certificates for already existing trademarks as the compliance with legal requirements is determined on the date of applying. In addition, during the registration of a trademark, only application documents are reviewed, and not how the trademark is going to be actually used. Also, there are a lot of labels for goods and services that are registered by organic producers or organizations related to the sector.
The responsibility for using such trademarks falls on the producer.
So we have 2 pieces of advice: producers should either switch to organic production in order to have legal rights for using such trademarks, or stop using them if some elements of the trademark might be misleading for consumers because of non-compliance with requirements of organic production. Otherwise, both the producer and the retail chain will be held responsible according to the current legislation on consumer protection, organic production and protection against unfair competition. Fine of several thousand grivnas may follow for such violations, also withdrawal of the product from circulation.