Recent developments in the negotiations over the proposed Australia-European Union Free Trade Agreement (FTA) have potentially wide-ranging implications for businesses operating in the food, agricultural and alcohol industries in Australia.
As part of these negotiations, the European Union (EU) is proposing the protection of a list of EU Geographical Indications (EU GI names), including certain types of cheese, ham, olive oils and alcohol in Australia. If such protection is provided, businesses would no longer be allowed to use those terms to refer to, or identify their products unless they originate from specific geographical regions and meet corresponding criteria of quality and characteristics.
What is a geographical indication?
A geographical indication (GI) acts to identify a good as originating in a specific region where the good has a particular quality, reputation or other characteristics (e.g. a particular method of production) that can be attributed to that geographical region.
A GI is only allowed to be used on a good if that good is capable of meeting the relevant GI standards. This provides assurance to consumers purchasing such goods that they are purchasing a product with specific qualities.
Examples of GIs currently protected in Australia include ‘Darjeeling’ for tea, which must be made in the Darjeeling region of India, ‘Scotch whisky’ which must be distilled in Scotland, and ‘Barossa Valley’ for wine, which must originate from prescribed boundaries within South Australia.
What are the terms the EU is seeking to protect?
The EU has requested protection for a total of 408 foodstuff and spirit names under the proposed FTA, a number of which are relevant to businesses in the meat, dairy, smallgoods, horticulture, oils, beer and spirits sectors. These names include:
|Gouda Holland||Camembert de Normandie||Comté||Prosciutto Toscano||Irish Cream|
A full list of the terms and additional explanatory materials can be accessed here.
The protection sought by the EU will not extend to use of parts of some of the EU GI names as underlined in the list. For example, in respect of names such as ‘Camembert de Normandie’, ‘Gouda Holland’ and ‘Prosciutto Toscano’, the EU has clarified that protection is not sought for ‘Camembert’, ‘Gouda’ and ‘Prosciutto’ and that use of these names are permitted when they are used by themselves, on the condition that they are not used in a way that may deceive or mislead consumers as to the true origin or quality of the products bearing these names.
What kind of protection is the EU looking for?
The EU is seeking broad protection of the listed EU GI names against:
- Any direct or indirect commercial use of a protected name on comparable products;
- Any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated, transcribed, transliterated or accompanied by an expression such as ‘style’, ‘type’, ‘flavour’, ‘method’ or ‘imitation’; and
- Any other false or misleading indication as to the origin, nature or essential qualities of the product on its packaging, advertising material or related documents.
These protections are proposed to apply even in circumstances where the products are used as ingredients.
What will this mean for my business?
The above protections, if adopted, will likely limit the ability of businesses operating in Australia to use names such as ‘Gruyère’, ‘Feta’ and ‘Scotch Beef’ to market and advertise their products and the ingredients within, if those products and ingredients do not meet the relevant criteria of source, quality and characteristics.
As an example, under the EU protections, a restaurant will no longer be allowed to market dishes such as salads with Feta cheese, or pizzas made with Gruyère or Gorgonzola cheeses, unless they originate from, and/or are made using particular methods of productions as prescribed by GI standards. Similarly, livestock producers and butchers may no longer be allowed to describe beef cuts as Scotch Beef, or Scotch fillet steaks, if the products are not derived from cattle produced and slaughtered in mainland Scotland.
Public consultation opportunity
At this stage, the Australian Government has made no commitment to protect these EU GI names and has launched a ‘public objections procedure’ so that it can consult with stakeholders on the issue.
Businesses and other stakeholders that believe protection of a specific EU GI name (including parts of, and translations, of the name) will adversely affect their interests are encouraged to lodge their objections. Traders can base their objections on a number of grounds (e.g. that the name sought to be protected is a common product name, or if it conflicts with a prior trade mark) and are required to provide evidence such as images, menus and packaging to support their objections.
The deadline for lodging these objections is 13 November 2019.
How can we assist?
HWL Ebsworth’s Intellectual Property team is experienced in advising our clients regarding geographical indications and associated food and product labelling laws. Please feel free to contact a member of our team if you would like further information as to how your business may be affected by the above-proposed protections, or if you require assistance with lodging an objection against the protection of a particular EU GI name.
This article was written by Luke Dale, Partner and Stephanie Leong, Law Graduate.