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New Zealand concluded the negotiation of a free trade agreement with the European Union (FTA) on 30 June 2022.
As part of the negotiated outcome, New Zealand will provide geographical indication (GI) protection for a list of 1,967 EU GIs.
The FTA provides that GI protection will not prevent prior users of the terms “Gruyère” or “Parmesan” from continuing that use, provided that they were using those terms in good faith for a period of at least 5 years before the date of entry into force of the FTA. [1] The FTA also notes that a list of those prior users is to be shared with the European Union (EU) before the FTA is signed. [2]
To be included on the list of prior users, relevant prior users can complete a statutory declaration confirming use of the term of “Gruyère” or “Parmesan” in good faith for the requisite period. Those companies/ producers who fill the statutory declarations will then be included on the list of prior users to be shared with the EU.
Any continued use following entry into force must also be accompanied by a legible and visible indication of the geographical origin of the good concerned.
Completing a statutory declaration
We have provided a template statutory declaration below:
- The statutory declaration must be completed by a natural person.
- The statutory declaration must clearly identify the person or entity that is the relevant prior user and which is to be included in the list of prior users.
- Any person completing the statutory declaration on behalf of an entity must be entitled to make accurate representations on behalf of that entity.
- The statutory declaration must be completed and witnessed in accordance with, and subject to, the Oaths and Declarations Act 1957.
- The content of the statutory declaration must be true. You can be prosecuted for making a false declaration.
Please note that if you have used both of the terms “Gruyère” and “Parmesan” you will need to provide a separate statutory declaration for each term.
When does the 5 year period start?
The statutory declaration must confirm use of the relevant term for a period of at least 5 years before the date of entry into force of the FTA.
The exact date of entry into force will be jointly decided by New Zealand and the EU after both parties have completed their respective legal processes to bring the FTA into force. We expect the FTA will be signed later this year and both sides will then begin their respective legal processes to bring the FTA into force. At this stage, the FTA is anticipated to enter into force in the second quarter of 2024, subject to relevant approvals.
For the purposes of establishing and sharing the list of prior users, we will include prior users who have made/ provided a statutory declaration as having used one or both of the relevant terms since at least 1 July 2019. The list of prior users will be reviewed when the FTA enters into force to ensure that all meet the condition of length of use. Only those prior users that provided a statutory declaration that declares at least 5 years of good faith use before the date of entry into force will remain on the list. No other changes will be made to the list.
In your statutory declaration, please provide the earliest date from which the prior user would be able, if called on, to provide evidence of their first use of the term. Please also state whether they intend to continue to use the term after the date of the declaration.
Evidence of use
A statutory declaration must provide a truthful statement about use of the relevant term for the relevant period specified in the declaration. The statement should be able to be supported by evidence verifying the statements made in the declaration. This could include examples of prior dated packaging or advertising material, records of industry awards or copies of invoices evidencing the prior user’s use of the term over that period. The statutory declaration should also confirm that the declaration could be supported by evidence if required.
Following entry into force of the FTA, a person claiming to be a prior user, who cannot establish that they meet the conditions set out in the FTA, could be challenged under relevant domestic intellectual property and consumer protection laws.
When do I need to provide the Statutory Declaration?
To be included in the list please send your statutory declaration to MFAT by 15 June 2023 at the latest.
Please mail your statutory declaration to:
195 Lambton Quay,
Private Bag 18 901,
Wellington 6160,
New Zealand
or you can courier you statutory declaration to us at:
Level 10,
195 Lambton Quay,
Private Bag 18 901,
Wellington 6160,
New Zealand.
Please direct any questions that you have in relation to this process to EU-FTA@mfat.govt.nz. Please include the name and phone number of a suitable contact person in your message.
Private information
The Privacy Act 2020 establishes certain principles with respect to the collection, use and disclosure of information about individuals by various agencies, including MFAT. Any personal information you supply to MFAT in the course of nominating a prior user will only be used for purposes related to the production and publication of a list of prior users as described in this document.
[1] More information on the standard of protection of GIs and the exceptions for prior users of the terms “Gruyère” or “Parmesan” is included in Annex 2 below. However, we also recommend you review the agreement text.
[2] The FTA text has been a legally reviewed and translated since the formal negotiation closed last year. We expect the FTA will be signed this year and then enter into force next year after each party has completed the legal processes necessary for the agreement to become effective.
Annex 1: GI protection in the EU FTA
The GI protection requirements are set out in Article 18.34 of the FTA. This includes protection against unauthorised commercial use of the term, or any translation or transliteration of the term, on products similar to the products covered by the GI. It also includes protection against use that misleads people about the origin of a goods; or any use that constitutes an act of unfair competition. However, you should review the FTA text to understand the GI protection requirements.
Gruyère
The schedule of protected GI names [PDF, 1.4 MB] includes the following in relation to the listing of "Gruyère":
“protection of the geographical indication "Gruyère" shall not prevent prior users* of the term "Gruyère" in New Zealand from continuing to use that term, if the prior user has used the term in good faith for a period of at least five years before the date of entry into force of this Agreement. Any such use of the term "Gruyère" after the date of entry into force of this Agreement must be accompanied by a legible and visible indication of the geographical origin of the good concerned”.
* The list of prior users was established and shared before the signature of the Agreement.
Parmesan
The term “Parmesan” is not included in the schedule of GIs protected under the FTA. However, the term “Parmigiano Reggiano” is listed. Italian Parmigiano Reggiano producers assert that the term “Parmesan” is a translation of, or would otherwise infringe GI protection in, “Parmigiano Reggiano”.
The schedule GIs includes the following in relation to the listing of “Parmigiano Reggiano”:
The protection of the geographical indication "Parmigiano Reggiano" shall not prevent prior users* of the term "Parmesan" in New Zealand from continuing to use that term, if the prior user has used the term in good faith for a period of at least five years before the date of entry into force of this Agreement. Any such use of the term "Parmigiano Reggiano" after the date of entry into force of this Agreement must be accompanied by a legible and visible indication of the geographical origin of the good concerned.
* The list of prior users was established and shared before the signature of the Agreement.
If you consider your use of the term “gruyère” or “parmesan” may infringe the prior user exception will allow you to continue to use those terms and you can seek to be included on the list.
If the GI protection would not prevent your continued use of either term, you will not need to make use of the exception or seek inclusion on the list of prior users. For example, it is not an infringement for a retailer to promote or sell cheeses that are legitimately labelled with the GI (because, for example, they come from the relevant French or Italian geographical origin), therefore that retailer will not need to make use of the prior user exception. Similarly, the GI will not be infringed if it is used on product other than cheese in a way that is not misleading and does not amount to unfair competition. This means the publisher of a recipe book that includes “gruyère” in its title, for example, does will not need to be included in the prior user list.