Category: Geographical Indications

Geographical Indications in Australia – Public Consultation on the Creation of a New IP Right

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.

Alistair Curson

 

References

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/

Fair Labelling of Plant-Based Products

In a recent blog post I looked at Geographical Indications, which act as a label to distinguish the geographical origin of a product.  When 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 that global location.

While researching for this current post I found an interesting article that raised the question of “fair labelling” in relation to the constitution of products.  Specifically, a call by New Zealand Federated Farmers to restrict the use of meat and dairy terms to describe plant-based food products.

 

Legal Assurance as to the Origin of Products and Services

Various forms of legislation exist with the intention of ensuring consumers have accurate information as to the origins of the products and services they’re buying.

For example, trade marks and geographical indications provide assurance that a product or service originates from a particular company / entity or geographical location respectively.

Under the New Zealand Fair Trading Act, consumers are protected from various behaviours, including misleading or false statements as to the origin of products.

 

Trends Overseas

Current interest in this matter in New Zealand has been driven by trends overseas, including in both the European Union and Australia.

In the EU, terms such as steak, sausage, escalope, burger and hamburger may become designations reserved for meat-based products.  Previously, in 2017, the European Court of Justice ruled that dairy terms, such as milk and butter, could not be used to sell soya and tofu products.  Similar changes are being campaigned for in Australia.

 

Opinion

There is an argument that the use of terms previously associated with meat-based products has now become common language when referring to non-meat products, and thus there is little or no consumer confusion.

However, with increasing consumer awareness of food origins as well as trends towards changing our diets, for example as a consequence of climate change, such restrictions on the labelling of certain products may facilitate a better-informed choice for the consumer.

Alistair Curson

 

References

Bainbridge D. (2012). “Intellectual Property.” 9th edn, Pearson Education Limited, Harlow, England.

Boffey D. (2019, April 04). “‘Veggie discs’ to replace veggie burgers in EU crackdown on food labels”. Retrieved November 14, 2019, from: https://www.theguardian.com/food/2019/apr/04/eu-to-ban-non-meat-product-labels-veggie-burgers-and-vegan-steaks

Burry M. (2019, July 31). “Federated Farmers quest for ‘fair labelling’ of plant-based products: ‘Call it almond juice’”. Retrieved November 03, 2019, from: https://www.rnz.co.nz/news/national/395689/federated-farmers-quest-for-fair-labelling-of-plant-based-products-call-it-almond-juice

Curson A. (2019, September 03). “Geographical Indications – Implications of a New Zealand / EU Trade Deal on Product Names”. Retrieved November 03, 2019, from: http://adcpatentsearch.co.nz/IP_Analytics_NZ/?p=240

Ministry of Business, Innovation and Employment. “Consumer Protection: misleading prices or advertising”. Retrieved November 14, 2019, from: https://www.consumerprotection.govt.nz/general-help/common-consumer-issues/misleading-prices-or-advertising/

New Zealand Fair Trading Act 1986. Retrieved November 14, 2019, from: http://www.legislation.govt.nz/act/public/1986/0121/latest/DLM96439.html

New Zealand Intellectual Property Office. “Geographical Indications”. Retrieved November 14, 2019, from: https://www.iponz.govt.nz/about-ip/geographical-indications/

Thomas D. (2019, June 19). “Would you call this a vegetable tube?”. Retrieved November 14, 2019, from: https://www.bbc.com/news/business-48676145

Worthington B. (2018, October 11). “Federal Government pushes to stop plant-based products labelled as ‘meat’ or ‘milk’”. Retrieved November 14, 2019, from: https://www.abc.net.au/news/2018-10-11/federal-government-wants-food-standards-reviewed/10360200

Geographical Indications – Implications of a New Zealand / EU Trade Deal on Product Names

In October 2015, New Zealand and the European Union announced their intention to negotiate a free trade agreement, with formal negotiations launched in June 2018.  The current stated goal is to conclude the agreement by the end of 2019, after which it will be released from public scrutiny, a National Interest Assessment and parliamentary treaty examination.

As part of the free trade deal negotiations, the EU presented New Zealand with a list of names that are currently protected as geographical indications in the European Union, with the intention that New Zealand should also recognise and protect these names.

 

What is a Geographical Indication?

A geographical indication is a sign that informs the consumer that a product comes from a particular geographical location.  For example, sparkling wine can only be called Champagne if it comes from the Champagne region in France.

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.

In New Zealand, geographical indications can be registered for local and international wines and spirits.

In the European Union, geographical indications protect a broader range of products including not only wines and spirits, but also agricultural products and foodstuffs.  Elsewhere, geographical indications may also protect handicrafts and industrial products.

 

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.

 

What Would the EU Like to See in a Free Trade Agreement?

The EU’s lists of products include 172 foodstuffs, as well as extensive lists of wines and spirits.  As part of the terms of the proposed free trade agreement, the EU is looking for New Zealand to also recognise and protect these names as geographical indications in New Zealand.

The EU is looking for a framework to protect these products in New Zealand that is more in line with the EU’s regime for the protection of geographical indications, rather than that which is currently implemented in New Zealand.  This is not an unexpected request when entering into a free trade agreement.

In summary, the EU is seeking that the names in question will receive protection in New Zealand against being use for products or ingredients that do not originate in the EU and have not been produced in accordance with the relevant EU product specification.

This will include protection against commercial use of the product name in relation to non-compliant comparable products, misuse or imitation of the name in relation to products, and false or misleading indications as to the origins of products.

 

What are the Implications?

One potential outcome of the free trade deal could be the restriction of the use of certain product names currently already being used here in NZ.  As part of the negotiation process, however, the New Zealand Ministry of Foreign Affairs and Trade also asked for nominations for New Zealand names to be submitted to the EU for consideration for Geographical Indication protection there.

The overall goal of free trade agreements is to minimise trade barriers between the participating territories.  In the spirit of any final agreement, there should be mutual and reciprocal compromise, with ultimate benefits to both sides, as well as opportunities for expanding local products into new markets.

The final scope and level of protection on both sides will depend upon the outcome of the ongoing negotiations.

Alistair Curson

 

References

European Union: Your Europe. (2019, August 13). “Geographical indications”. Retrieved August 17, 2019, from: https://europa.eu/youreurope/business/running-business/intellectual-property/geographical-indications/index_en.htm

Geographical Indications (Wine and Spirits) Registration Act 2006, s6. Retrieved August 17, 2019, from: http://www.legislation.govt.nz/act/public/2006/0060/latest/DLM390815.html

IP Australia. “Geographical indications”. Retrieved August 17, 2019, from: https://www.ipaustralia.gov.au/trade-marks/understanding-trade-marks/types-trade-marks/certification-trade-mark/geographical

New Zealand Foreign Affairs and Trade Manatū Aorere. “European Union (EU)-New Zealand free trade agreement”. Retrieved August 17, 2019, from: https://www.mfat.govt.nz/en/trade/free-trade-agreements/agreements-under-negotiation/eu-fta/

New Zealand Foreign Affairs and Trade Manatū Aorere. “European Union (EU)-New Zealand free trade agreement: Geographical indications”. Retrieved August 17, 2019, from: https://www.mfat.govt.nz/en/trade/free-trade-agreements/agreements-under-negotiation/eu-fta/geographical-indications/

New Zealand Foreign Affairs and Trade Manatū Aorere. “European Union (EU)-New Zealand free trade agreement: Geographical indications – Foodstuffs list”. Retrieved August 17, 2019, from: https://www.mfat.govt.nz/assets/FTAs-in-negotiations/EU-FTA/181001_GI-Foodstuffs-shortlist_NZ.DOCX

New Zealand Foreign Affairs and Trade Manatū Aorere. “European Union (EU)-New Zealand free trade agreement: Geographical indications – Wines list”. Retrieved August 17, 2019, from: https://www.mfat.govt.nz/assets/FTAs-in-negotiations/EU-FTA/EU-FULL-LIST-ON-WINES.PDF

New Zealand Foreign Affairs and Trade Manatū Aorere. “European Union (EU)-New Zealand free trade agreement: Geographical indications – Spirits list”. Retrieved August 17, 2019, from: https://www.mfat.govt.nz/assets/FTAs-in-negotiations/EU-FTA/EU-FULL-LIST-SPIRITS-GI.PDF

New Zealand Foreign Affairs and Trade Manatū Aorere. “European Union (EU)-New Zealand free trade agreement: Timeline for negotiations”. Retrieved August 17, 2019, from: https://www.mfat.govt.nz/en/trade/free-trade-agreements/agreements-under-negotiation/eu-fta/timeline-for-nz-eu-negotiations/

New Zealand Intellectual Property Office. “Geographical Indications”. Retrieved August 17, 2019, from: https://www.iponz.govt.nz/about-ip/geographical-indications/

TVNZ On Demand. (2019, August 15). “Seven Sharp – NZ cheese producers may have to start renaming products under new EU proposal”. Retrieved August 17, 2019, from: https://www.tvnz.co.nz/shows/seven-sharp/clips/nz-cheese-producers-may-have-to-start-renaming-products-under-new-eu-proposal

Wikipedia. (2019, August 25). “Free trade agreement”. Retrieved August 29, 2019, from: https://en.wikipedia.org/wiki/Free_trade_agreement

Wikipedia. (2019, July 20). “Seven Sharp”. Retrieved August 17, 2019, from: https://en.wikipedia.org/wiki/Seven_Sharp

World Intellectual Property Organisation. “Geographical Indications”. Retrieved August 17, 2019, from: https://www.wipo.int/geo_indications/en/