Geographical Indications (GIs) have long been debated, ever since the French made the point that champagne must come from the Champagne region. Now, following New Zealand’s FTA with the EU, New Zealand is looking to implement legislation that will settle this. Settle it in favour of the EU, that is.

The sale and marketing of food and beverages and potentially other things in New Zealand will be impacted by the introduction of a Bill that grants European Union manufacturers special rights. At an obvious level, it will mean that New Zealand producers must stop using EU registered geographical indications such as Feta, Parmesan and Prosecco.

Interestingly though, the Bill appears somewhat one-sided and potentially to go further than the New Zealand-European Union Free Trade Agreement. It will give the EU access to intellectual property rights in New Zealand that are not afforded to New Zealand and other non-EU businesses. In particular, EU GIs can cover any “thing”, such as wine, spirits, but also cheeses, olives (or frankly anything). By contrast, New Zealanders (and people outside of the EU) will be limited to obtaining GIs in New Zealand for only wines and spirits. Not looking like a level playing field if you’re an oyster farmer from Bluff, a cheese maker from Puhoi or salmon farmer from Mt Cook.

In this article we discuss what you need to know about the European Union Free Trade Agreement Legislation Amendment Bill and its potentially wide-reaching implications on food and beverage producers as well as consumers.

Background

GIs identify a product as originating from a specific geographical region. GIs signal that a product possesses unique qualities, characteristics or reputation attributable to its origin and the traditional methods used in its production. Champagne is a classic example of a GI that is already registered in New Zealand, used to denote the sparkling wine produced in the Champagne region of France.

Under the NZ-EU FTA, the EU and New Zealand agreed to protect each other’s GIs in their respective territories.

The Bill proposes amendments to New Zealand’s Geographical Indications (Wines and Spirits) Registration Act 2006 to allow for the registration of the EU GIs. The Bill is currently at Select Committee stage and will go through two further readings. It is expected that the Bill will pass into legislation later this year before the NZ-EU FTA comes into force.

Public submissions are open on the Bill until 16 February 2024.

Key features of the Bill

Some key provisions of the Bill include:

• Automatic registration in New Zealand of nearly 2,000 EU GIs (Agreed EU GIs). Examples of the Agreed EU GIs include Feta, Parmesan, Gruyère, Prosciutto di Parma (Parma Ham), Port, Sherry, Ouzo, Cognac, Prosecco and Irish Cream. A full list of the Agreed EU GIs can be found here.
  
  Interestingly, this automatic registration of the Agreed EU GIs conflicts with the wording of the NZ-EU FTA. The NZ-EU FTA states that the EU GIs must be protected in New Zealand “following the completion of an opposition procedure and an examination of the geographical indications”. But the Bill expressly states that the Agreed EU GIs are not subject to the examination and opposition procedures introduced under the Bill. This means that non-EU parties, including New Zealand businesses, will not have the opportunity to oppose the registration of the Agreed EU GIs. It is unclear why the Bill contains this inconsistency, which benefits the EU and disadvantages New Zealand and non-EU businesses.
• The EU can also request protection in New Zealand for any other new or altered EU GIs in accordance with the NZ-EU FTA, which must be decided by the Trade Committee (comprising representatives of New Zealand and the EU) and notified by the Secretary of Foreign Affairs and Trade (New EU GIs). Protection of any New EU GIs will be subject to examination and will be open to opposition by third parties. Amongst other things, New EU GIs will not be registrable in New Zealand if they are identical to the common name of the goods, or if they are used as the name of a plant variety or animal breed and are likely to mislead consumers as to origin, or if they are likely to offend a significant section of the community, or if they are confusingly similar to a New Zealand registered trade mark. The Agreed EU GIs will not be subject to these registrability requirements, which, as discussed above, conflicts with the wording of the NZ-EU FTA.
• The Bill envisages a two-tier system, where the EU has rights to GIs that cover “wines, spirits or any thing” - in short, anything at all.  This allows for GIs for things such as ham, olives, cheeses, nuts or … anything. By contrast, a GI for anyone outside of the EU (including those in New Zealand) can only cover a wine or spirit - which will be disappointing news for those in the New Zealand salmon, oyster, cheese, olive or honey industries, who will be left wondering why they are in a worse position than their EU counterparts.
• No-one in New Zealand will be able to use registered EU GIs for the relevant goods unless the goods meet the specifications of the EU GIs. This means that businesses will not be able to use registered EU GIs to describe or market New Zealand-made products. This will apply even if the true place of origin is indicated, or if the GI is used in a translation or transliteration, or if the use of the GI is accompanied by “kind”, “type”, “style” or “imitation” or similar expressions.
• A transitional period will apply to some Agreed EU GIs, such as Port, Feta, Parmesan and Gruyère. This will allow certain existing users of these terms in New Zealand to continue using them for up to five or nine years (as applicable) after the date of entry into force of the NZ-EU FTA. The use of the terms must be accompanied by a legible and visible indication of the geographical origin of the goods concerned.
• Some limited exceptions will apply to the prohibitions against using registered EU GIs in New Zealand. For example, existing goods that do not comply as at the applicable date for an EU GI may be marketed and sold until stocks are exhausted.  
  
  But the Bill also contains other exceptions which, confusingly, do not align with the NZ-EU FTA and could disadvantage non-EU businesses. In particular, exceptions in the Bill relating to use of terms that are “customary in common language as the common name for the good in New Zealand” conflict with how these exceptions are stated in the NZ-EU FTA. In practice, this will make it harder for businesses to show that a term is a “common name” in order to qualify for the exceptions and also risks unpredictable interpretation by the courts.
• Modifications to New Zealand’s Trade Marks Act 2002 will require that the Commissioner of Trade Marks considers EU GIs registered in New Zealand when examining an application to register a trade mark. The ability to register a trade mark will be restricted if it contains an EU GI.

The name of the Geographical Indications (Wine and Spirits) Registration Act 2006 will change to the Geographical Indications Registration Act 2006 to reflect the inclusion of EU GIs for products other than wine and spirits. 

The Bill also proposes amendments to other New Zealand laws as part of the implementation of the NZ-EU FTA, including the following:

• Amendments to the Consumer Information Standards Regulations 1992 to allow clothing and footwear exported to NZ to be labelled “Made in the EU”; and
• Tariff quotas provided under the Dairy Industry Restructuring Act 2001 are to be revised, specifically in relation to butter and cheese.

Our comments

Once enacted, the Bill will impact the way food and beverage products are marketed and sold in New Zealand. Businesses may need to transition to alternative terms to describe their products, and should be careful not to use any protected EU GIs in future. This may present an opportunity for businesses to create distinct descriptions for New Zealand-made products. But it may also cause a headache for consumers as they adjust to new descriptions that may not be uniform for the same products. 

Surprisingly, the Bill does not expand New Zealand’s current regime to allow non-EU GIs to be registered for goods other than wines and spirits. For example, New Zealand producers are not able to register geographic indications in New Zealand for terms such as Mānuka, Pounamu and Bluff Oysters. Similarly, other non-EU producers are not able to register geographic indications in New Zealand for terms such as Kobe Beef (Japan), Korean Red Ginseng (South Korea) and Rooibos (South Africa). As a result, the Bill will give the EU access to a special category of intellectual property rights in New Zealand without granting equivalent access to New Zealanders or those from other territories.  

Get in touch

Please get in touch with one of our experts if you have any questions on the Bill or how it may impact your business.  

Special thanks to Priya Prakash and Charlotte Holland for their assistance in writing this article.