News & Insights

The Australian government has announced that as part of its Australia-European Union Free Trade Agreement it is seeking input from the Australian public, particularly stakeholders in the food and agri-business industries.

The Australian government is continuing to undertake consultations, with final submissions closing on 30 November 2020.

what are geographical indications?

Geographical indications (GI) are terms that may only be used in relation to products from particular geographic locations. They are recognised when products from that location have a particular characteristic or reputation.

For example, “champagne” can only be used for sparkling wine from the Champagne region in France. GIs primarily arise in the food and beverages sectors, but also exist for products such as silk and pottery.  You can find further background on GIs in this article.

why consult?

As part of the current free trade agreement negotiations, the EU is seeking to protect 236 spirit names and 172 agricultural names as GIs in Australia. The full list is published by DFAT.  This may potentially affect Australian food and beverage manufacturers who currently use these terms to describe their Australian-made products.

The Australian government has previously consulted on aspects of the proposed new GI list such as specific items on that list. It is not seeking comment on that list now.

So if you are concerned about being able to use “gruyere” to describe your Australian-made cheese, that time has passed. Instead, the Australian government seeks responses on how the GI system should operate in Australia and particularly how it should interact with the trade marks system.

The 11 questions on which submissions are sought can be found on page 4 of the Australia-European Union Free Trade Agreement: Consultation on a Possible New Geographical Indications Right.

Currently GIs for wine and spirits are protected under the Wine Australia Act 2013 (Cth). Extending the GI regime to protect the agricultural goods sought by the EU will likely require a new or expanded regime.

A new or expanded GI regime is most likely going to affect both the more common descriptive use of the GI but also the use of a GI within a trade mark. For example, in 2000 when Southcorp Wines sought to register the trade mark “QUEEN ADELAIDE REGENCY” for wine, the status of “Adelaide” as a GI meant that it could only be accepted for wines originating from the Adelaide region.

should you care?

If you are an Australian food or spirits manufacturer and you would be affected by any of the names on the DFAT list being protected as a GI, then you should definitely care. If you use a trade mark that contains one of those GIs, then you should also care. And if you use something that is a GI elsewhere but is not currently on the DFAT list? Then yes, you should still care because GIs are ever-expanding. Non-EU countries will surely seek protection of their GIs in Australia in the future.

how to respond

IP Australia, which is conducting the consultation, provides two mechanisms for submitting an online response by 30 November 2020 to the consultation paper:

• you can fill in your responses to the 11 questions online; or
• you can upload a pre-prepared submission.

The Macpherson Kelley IP team can help you with your submission, as well as navigating through the existing wine and spirits GI regime.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.