Australia opens consultation on GIs amid EU negotiations
The Australian government has asked the public to provide their thoughts on a possible new geographical indication (GI) right, as part of the country’s negotiations with the European Union (EU).
Back in June 2018, Australia launched negotiations for a free trade agreement (FTA) with the EU, Australia’s third-largest trading partner.
Identified as one of the key objectives in the EU’s negotiations, the EU has asked Australia to protect 236 spirit names and 172 agricultural and other names as GIs.
“The government has made no commitment to protect specific EU GIs and has made clear it would only consider doing so if the overall FTA deal was good enough for Australia, including by delivering on Australia’s agricultural market access interests,” said a consultation paper hosted on IP Australia.
Currently, Australia protects GIs through certification trademarks and a bespoke wine GIs system under the Wine Australia Act 2013. There are approximately 116 registered GIs for the wine industry but, outside this industry, few Australian businesses use GIs for goods.
According to IP Australia, all recent EU FTA partners agreed to protect a list of GIs to conclude negotiations with the EU. Most of these countries have had to change their laws to do so.
If Australia were to agree to protect specific EU GI terms, the Trade Marks Act 1995 would need to be amended to create a GI right. The new right, administered by IP Australia, could protect both Australian and international GIs.
Australia’s certification trademarks and wine GI systems could remain unchanged if a new GI right is established or, alternatively, the new system could be designed to enable wine GIs to be included.
‘Champagne-style’ wine
The EU has also proposed a number of ways in which it would like Australia to protect EU GIs. Under the EU’s proposed standards, the use of a term protected by a wine or spirit GI can be prevented even if the use is not misleading, and the use of a GI word with ‘type’ or ‘style’ added to it is also prevented.
IP Australia cited the example of ‘Champagne’, which is protected as a GI in Australia under the wine system. Under the proposed standards, other producers cannot label a wine as ‘champagne-style’, even if the label clearly states it is made in Australia.
The EU is also seeking to prevent ‘indirect commercial use’, ‘exploitation of the reputation of a GI’, ‘misuse, imitation or evocation’ of a GI, even if translated, transcribed or transliterated, or use that is ‘liable to convey a false impression as to the origin of a good’.
“A number of Australian stakeholders have emphasised that any protection of GIs should not extend beyond the internationally agreed minimum standards which currently apply to wine and spirit GIs in Australia,” said the IP office.
In particular, evocation—which prevents the use of words or images that bring a GI to mind in consumers—has been widely criticised by Australian stakeholders.
In February last year, a German producer was prevented from selling a whisky labelled Glen Buchenbach because glen (meaning valley) was found to evoke the GI ‘Scotch Whisky’. The case had gone all the way up to the Court of Justice of the European Union.
“We note the EU has not been successful in negotiating for protection of GIs against evocation in its other FTAs, including with Canada, Singapore, Japan, Mexico and Mercosur,” added the consultation paper.
A roundtable discussion will take place during the consultation period on the standard of protection.
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