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Background
As part of the European Union-New Zealand Free Trade Agreement (FTA) negotiation, the EU proposed that New Zealand make significant changes to its existing legal framework for the protection of geographical indications (GIs). As an example, the EU wanted GIs for foodstuffs like cheeses to have a higher level of protection. Amongst other things, the EU wanted express rules that would stop an unauthorised cheese producer labelling its cheese as being "like" or "in the style of" a GI protected cheese name.
The EU also wanted broader protection to apply in New Zealand for all GIs generally. This would include GI protection stopping unauthorised use of not only the protected GI, but also words or images that may call to mind or "evoke" the GI (in the EU).
To understand how these proposed changes could impact New Zealanders, The Ministry of Business, Innovation and Employment (MBIE) and The Ministry of Foreign Affairs and Trade (MFAT) released a joint discussion paper in December 2019 calling for submissions (which can be found here(external link)). This was followed by four months of consultations on the GI protection framework.
Submissions received as part of the consultation helped to shape and inform New Zealand's position in the EU-FTA negotiation.
Submissions
We received submissions from a range of respondents including Māori as well as representatives of the wine, dairy, food production and distribution, business legal, and service sectors.
Formal submissions and other feedback received raised a wide range of issues and perspectives. These included:
- Significant concerns about the nature and purpose of the EU proposals;
- Significant concerns about specific aspects of the EU’s proposals and their possible impacts on New Zealand domestic and export businesses;
- Support for an expansion of New Zealand’s existing regime and for EU proposals, particularly in relation to names and products of importance to Māori; and
- Objections to any agreement on GIs or other intellectual property matters as part of the EU FTA prior to the outcome of the Government Te Pae Tawhiti process and resolution of issues related to the Wai 262 claim.
Submissions that did not support the EU's proposals
Submissions commented on the nature and purpose of the EU's proposed protection framework, including that:
- The EU proposals are perceived as being designed to expand the influence of EU GIs internationally for the principal benefit of EU producers and as part of a broader EU domestic agricultural policy to support the EU producers.
- Protections in New Zealand should not go beyond agreed protections under the WTO Trade Related Aspects of Intellectual Property (TRIPS) Agreement.
- The impacts of the EU’s GI proposals for any sector need to be considered in light of any other costs or benefits under the wider FTA that will impact that sector.
- On a principle-based approach, any agreed changes should only be agreed if they are:
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- demonstrably beneficial for New Zealand;
- consistent with existing domestic law and international obligations;
- consistent for traders operating in both the New Zealand and Australian market;
- transparent, consistent and predictable in the application of rules; and
- not beyond what the EU has agree to in its FTAs with other countries.
In addition, a number of submissions raised substantive and detailed objections to specific EU proposals. These included:
- As is the case in TRIPS, the standard of protection for foodstuffs GIs should not be as high as for wine and spirits GIs.
- GI protection should not be expanded to include protection in relation to transcriptions, transliterations, ‘evocations’*, use that exploits a GI’s reputation, or use of a GI to identify an ingredient in another product. Objections noted such expansion would create uncertainty, impose additional compliance costs and stifle innovation for no notable benefit.
- Protection of compound names (being names that include multiple component terms) should not protect the individual descriptive or generic components of those names. For example, protection of the EU GI “Mozzarella di Bufala Campana” should not prevent New Zealand producers using the term ‘mozzarella’ or ‘mozzarella di bufala’ to describe their cheese.
- New Zealand should not be required to operate an administrative body to enforce GI protection at the request of GI right holders.
- The cost of securing and maintaining protection should be borne by the right holders as principal beneficiaries (through application and registration renewal fees).
- EU GIs should not prevail over and undermine existing trade mark rights in New Zealand.
- GI protection should not be available in relation to the common descriptive terms or names of plant varieties and animal breeds. The EU proposals in relation to such names are believed to be deliberately ambiguous and uncertain.
- Upon concluding the FTA, the EU should not be able to protect further GIs under the FTA given the proposed mechanism does not satisfy requirements of due process and fairness, or involve an appropriate New Zealand decision making authority that provides suitable recourse to appeal of decisions. In addition, there is particular concern that there are several thousand existing EU GIs that have not already been nominated for protection under the negotiation.
* 'Evocation' is a concept unique to the EU that prevents unauthorised use of terms or images that ‘trigger an image in the mind of consumers of the product protected by the applicable GI’. It has been used to stop a German whisky being named “Glen Buchenbach” on the basis that “Glen” is closely associated with the labelling and promotion of Scottish whisky and therefore evokes the term “Scotch Whisky”.
We received submissions that raised concerns that, amongst other things, any changes to the current GI regime should be part of Te Pae Tawhiti, the all–of-Government response to the Waitangi Tribunal’s report on the Wai 262 claim (Ko Aotearoa Tēnei) and that, in negotiating the FTA, the Government must meet its te Tiriti obligations.
Submissions that support the EU's proposals
We received a small number of submissions that supported the EU proposals from Māori stakeholders, including from those involved in the mānuka honey industry.
These submissions supported the expansion of the current registration regime for wine and spirits GIs to provide for the registration of GIs for foodstuffs (and in particular for mānuka honey).
There was also support for the use of GIs to protect rights and interests in te reo Māori, traditional knowledge and cultural expressions, place names, mātauranga Māori, indigenous flora and fauna/taonga species, and Māori data. Those submissions generally supported all of the EU’s proposals for enhanced protection of GIs, beyond the level of protection provided under TRIPS as a means to facilitate such protection.
Māori Interests in GIs
As a Treaty partner, the Crown wants to work with Māori to understand the potential benefits and risks for Māori in relation to GIs.
We understand there is interest amongst Māori about the potential use of GIs to protect Te Reo names that are associated with certain products and places. This was noted in the Waitangi Tribunal’s Wai 262 report (Ko Aotearoa Tēnei). We need to understand whether these interests line up with what the EU has proposed and whether there are other concerns that need to be addressed.
MFAT undertook work with Te Taumata on these questions and conducted Māori-focused workshops as part of our engagement for this consultation.
Disclaimer
This consultation needs to be understood in the broader context of the NZ-EU FTA negotiations.
In scoping discussions between New Zealand and the EU prior to the commencement of negotiations, the parties agreed that negotiations should aim at providing a broader framework for the recognition and protection of GIs beyond wine and spirits. This is in line with the EU's position that protection of EU GIs in New Zealand will be an essential part of any final agreement. But both parties recognised that any agreement on providing such a framework would be subject to a satisfactory outcome in the overall agreement for New Zealand.
Nothing in this consultation process indicates that there will be any changes to New Zealand's current domestic regulatory regime for GI protection.