On 4th September 2020, the Australian Government opened public consultations on the creation of a new geographical indications right. This relates to the ongoing negotiations between Australia and the European Union (EU) for a Free Trade Agreement, where the protection of geographical indications is one of the key objectives of the EU’s negotiating position.
What is a Geographical Indication?
A geographical indication is a sign that informs the consumer that a product with specific characteristics comes from a particular geographical location. For example, sparkling wine can only be called Champagne if it comes from the Champagne region in France.
It also assures that the product has been made in accordance with the specific recipes and processes necessary to give it the expected attributes.
Where the consumer attributes certain characteristics, including quality and reputation, to be associated with products originating from a specific place, this form of IP right provides assurance that the product does indeed originate from there.
Difference Between a Trade Mark and a Geographical Indication
There is some overlap between trade marks and geographical indications as both provide an assurance to the consumer as to the origin of a product. However, the two are subtly different.
A trade mark provides a “badge-of-origin” as to the commercial source of a product or service, i.e. the company or other entity that is providing it.
A geographical indication, on the other hand, distinguishes the product itself and its actual global location of origin.
How are Geographical Indications Currently Protected in Australia?
Australia currently has two systems for the protection of geographical indications.
All goods can have a geographical indication registered as a type of trade mark called a Certification Trade Mark (CTM). This is a trade mark (a sign for distinguishing goods and services) that has been certified by the owner of the mark that the goods or services meet certain standards “…in relation to quality, accuracy or some other characteristic, including (in the case of goods) origin, material or mode of manufacture…”. As such, both registered trade mark requirements and certification requirements have to be met, as well as competition and fair-trade rules.
There is also a separate system for the registration of geographical indications for wines.
Purpose of the Public Consultation
Should an acceptable Free Trade Agreement with the EU be negotiated, it is likely that Australia will have to make provision for the protection of certain EU geographical indications, which is currently not possible within the existing Australian systems.
One option being considered is an amendment to the Trade Marks Act 1995 to create a new, clearly defined, Geographical Indications right, which would protect both Australian and international geographical indications.
Were this to go ahead, then the current Certification Trade Mark and wine geographical indication systems could either remain as they are in parallel, or a new single geographical indications system could be introduced.
Whilst any changes would, in part, be driven by the outcomes of the negotiations with the EU, they would need to be developed and implemented to best meet the needs of Australian businesses, industries and consumers.
The consultation, which closes on 30th November 2020, aims to gather relevant views with respect to any potential changes to the geographical indication system in Australia.
Australian Trade Marks Act 1995, s169. Retrieved September 08, 2020, from: https://www.legislation.gov.au/Details/C2019C00085
Curson AD. (2019, September 03). “Geographical Indications – Implications of a New Zealand / EU Trade Deal on Product Names”. Retrieved September 07, 2020, from: http://adcpatentsearch.co.nz/IP_Analytics_NZ/?p=240
European Union: Your Europe. (2020, May 12). “Geographical indications”. Retrieved September 07, 2020, from: https://europa.eu/youreurope/business/running-business/intellectual-property/geographical-indications/index_en.htm
IP Australia. (2019, February 26). “Geographical indications”. Retrieved September 08, 2020, from: https://www.ipaustralia.gov.au/trade-marks/understanding-trade-marks/types-trade-marks/certification-trade-mark/geographical
IP Australia. (2020, September 04). “Australia-European Union Free Trade Agreement: Consultation on a Possible New Geographical Indications Right”. Retrieved September 08, 2020, from: https://consultation.ipaustralia.gov.au/policy/geographical-indications/
IP Australia. (2020, September 04). “The Australia – EU Free Trade Agreement – Consultation on a possible new geographical indications right”. Retrieved September 08, 2020, from: https://www.ipaustralia.gov.au/about-us/news-and-community/news/australia-eu-free-trade-agreement-consultation-possible-new
New Zealand Intellectual Property Office. “Geographical Indications”. Retrieved September 07, 2020, from: https://www.iponz.govt.nz/about-ip/geographical-indications/
Wikipedia. (2020, June 29). “Free trade agreement”. Retrieved September 07, 2020, from: https://en.wikipedia.org/wiki/Free_trade_agreement
Wine Australia Act 2013, Part VIB. Retrieved September 08, 2020, from: https://www.legislation.gov.au/Details/C2017C00368
World Intellectual Property Organisation. “Geographical Indications”. Retrieved September 07, 2020, from: https://www.wipo.int/geo_indications/en/