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Australia explores possible new GI right under Australia-EU Free Trade Agreement
30 September 2020
Public consultation on the Australia-European Union Free Trade Agreement (FTA) focusing on a possible new Geographic Indication (GI) right is ongoing.
The EU has named GI protection as a main objective in the negotiations. Meanwhile, the Australian government has not made any commitment in terms of protecting specific EU GIs.
There are about 400 proposed GIs in the EU’s list. Many of these are not likely to present any problem to Australian businesses and consumers because they are not commonly known in the country, according to Joanna Lawrence, counsel at Ashurst in Melbourne.
Yet, some additional GI protection being proposed by the EU arguably goes too far, she said.
“There are several names on the EU's GI list which have been used generically in Australia for many years to describe a particular style of food or beverage,” Lawrence said.
They include feta and Scotch beef. In Australia, feta is usually described as Greek feta, Danish feta, Bulgarian feta or Australian feta, depending on the percentage of sheep's, goat's or cow's milk in the product. On the other hand, Scotch beef refers to a particular cut of beef, not its origin.
“The protection sought by the EU is very broad and extends beyond merely direct or indirect commercial use of the GI name to:”
- “Any misuse, imitation or evocation, even if the true origin of the product is indicated or is accompanied by an expression such as ‘style,’ ‘type’ or ‘method.’ For example, ‘parmesan style cheese’ and ‘Scotch style beef’ would not be permitted.”
- “Any other false or misleading indication about the origin, nature or essential qualities of the product. This might include the use of particular color schemes or images on product packaging or promotional materials which might be seen as referring to the relevant GI country or region,” and
- “Any other practice liable to mislead the consumer about the true origin of the product. This might include comparative or descriptive references to the Gis,” said Lawrence.
The Australian government said it will only consider protecting these GIs if the free trade agreement will be beneficial to the country. While the agreement will potentially be very good for Australia, Lawrence said it needs a clearer indication of the benefits that may accrue to the country if it does agree to EU GIs protection.
But, if Australia does proceed to protect these generic GI terms to the extent requested by the EU, this will be very onerous for businesses, according to Lawrence.
“The particular challenges for food and beverage manufacturers and suppliers in Australia include only using GI terms to describe the genuine GI food or beverages such as feta from Greece, and finding alternative descriptions for non-GI food and beverages which are recognizable to consumers as an equivalent product, but which do not refer to the GI terms, such as Greek-style cheese rather than feta,” she explained.
“Changes in the use of generic GI terms are also likely to be confusing for Australian consumers who would understand many of these GI terms to describe particular styles of food and beverages rather than their geographical origin.”
Such confusion will translate to lost sales for the businesses.
Apparently, transitioning to these new GI terms entails a lot more, said Lawrence. And they could be expensive and time consuming too.
First of all, the food and beverage industry needs to adopt new terms to describe their products. This will require consumer education which takes time.
Manufacturers and suppliers also have to change product packaging and promotional materials. Retailers, restaurants and bars have to make sure they are using correct GI references in their signages, menus, websites and other materials.
Importing may be a challenge as there could be some inconsistency in GI references on products from a country which has different EU GI obligations. Australian businesses have to make sure that product packaging and other materials still comply with Australia's obligations under the free trade agreement.
Also, some businesses may be prevented from using their registered trademarks which contain GI terms.
“For example, a number of Australian companies have Australian registrations for trademarks which contain the word ‘Feta’ which may become vulnerable to removal for non-use unless amended. It is also unclear to what extent new GI terms will be able to co-exist with prior registered trademarks in Australia,” Lawrence explained.
Although this scenario isn’t new to Australia since it has experienced adapting to newly protected GIs in the past, the transition is still not as simple as it seems.
Espie Angelica A. de Leon
