How Do the Proposed New GI Naming Laws Affect Australia?

August 4, 2020

A geographical indication, or ‘GI’, is a way to identify a good that:

originates from a specific region; or
has a particular quality that is unique to its geographic origin.

Your supermarket basket may be full of goods with a GI, such as Darjeeling tea, Parmigiano Reggiano cheese and Scotch Whiskey. In June 2018, the Australian Government launched negotiations for a Free Trade Agreement (FTA) with the European Union (EU) which will increase commercial exports to the region. As part of the agreement, the EU has outlined that the implementation of GIs is not negotiable. This article explores:

Australia’s position in relation to the EU’s proposal;
current laws around GIs; and
what would happen should the government agree to the EU’s proposal.

The EU Proposal

In order to progress negotiations with the EU, Australia has published a list of proposed geographical indications that would be implemented should the deal go ahead. At this stage, however, the government has made no commitment and the list of GIs has been published for public objection.

The EU has asked Australia to protect:

236 spirit names; and
172 agricultural and foodstuff names as GIs in Australia.

The deal stands to be worth $25 trillion and will allow Australian farmers to export beef, wheat and sugar, to name a few products.

The EU GI Naming System

Under the proposed deal, dozens of existing Australian products will need to rename their products.

For example, the EU wants to stop Australian businesses from using terms like Prosciutto and Brie as generic terms for products.

The EU is aiming to enforce the protections on products which do not adhere to the geographical indication requirements, including source of ingredients and method of production. Australia has already seen the revision of champagne produced in Australian or elsewhere to “sparkling wine”, and the current negotiations could lead to similar outcomes.

Examples of terms that may change include:

Prosecco, which under GI laws indicates that the ingredients and production are in north-east Italy;
cheeses with full names such as Brie de Normandie, Edam Holland, Pecorino Romano and Camembert de Normandie (this would likely not affect the use of abbreviated names such as Brie or Camembert); and
Prosciutto (with compound names only, such as ‘Prosciutto di Parma’).

Current GI Laws in Australia

GIs are used to indicate that specific products are produced within a particular region and in line with a set of rules. The rules may include:

how the goods are produced;
the ingredients used to produce the goods;
distinctive agricultural techniques; or
a quality that has been cultivated over time.

The above rules ensure that consumers are purchasing a product with a specific quality. They also mean that a registered GI can only be used on products that originate from a region and comply with the rules. GIs exist worldwide and already apply to goods you can purchase in Australia.

For example, you may enjoy some Parma ham with your Clare Valley wine.

Australia currently has two GI systems. GIs:

can be registered using the Certification Trade Mark (CTM) system governed by trade mark law; and
for wines are registered under the Wine Australia Act.

The CTM System

The CTM system ensures that goods or services meet a certain standard for quality, content or production methods.

A CTM trade mark contains a set of rules that is lodged with the Australian Competition and Consumer Commission (ACCC) for assessment before approval. Once the rules are approved by the ACCC, they are open for public comment or opposition before acceptance.

A CTM imposes the obligation to control the use of the CTM by others, including ensuring it is only applied to goods that meet the standards specified in the rules.

Wine

Australia currently has an agreement with the EU that provides protection for wine GIs.

For example, you may see this in play when you order “sparkling Australia” wine in a restaurant instead of Champagne.

In addition to this, wines in Australia can only legally use a geographic location to indicate the origin of their wine when it is the source of the wine. Examples include Margaret River and the Hunter Valley.

Who Can Apply for a GI in Australia?

A GI can be owned by any legal entity. Owning a GI involves management, control and enforcement of the GI.

To protect the GI from misuse, the GI can be managed by:

the producers;
a central organisation; or
a local authority.

How to Enforce GIs

Applying for a GI provides a competitive advantage to the producers of specific goods. If you have applied for a GI, you can enforce it in Australia under the Trade Marks Act or prevent the importation of goods at the border.

Key Takeaways

We are currently waiting for the Australian government to make a determination. It appears the economic advantages of the EU trade deal outweigh the cost to Australian producers in rebranding their products to comply with GI regulations. We have already seen the impact of Australian wine makers using ‘sparkling wine’ due to the GI associated with champagne.

Australian producers will need to sit tight until the government makes its decision. In the meantime, public objections can be submitted via DFAT. If you have questions about GIs in Australia, contact LegalVision’s intellectual property lawyers on 1300 544 755 or fill out the form on this page.

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