Geographical Indications: What is Their Worth?

Geographical Indications: What is Their Worth? Comparing Geographical Indication Registrations Between Australia and Italy

Dr Paula Zito, PhD, The University of Adelaide

This week, in Brussels, Australia and the European Union (EU) embark on the fourth round of negotiations relating to the Australia-European Union Free Trade Agreement (AUSEUFTA). The preceding three rounds of negotiations have highlighted the importance of food Geographical Indication (GI) protection in trade relationships and negotiations and food GI protection has become a topical issue of the negotiations between Australia and the EU.  While the EU has protected food GIs pursuant to a dedicated food GI framework since the 1990s, Australia has traditionally been hesitant to do so, instead offering protection to food GIs pursuant to trade mark legislation. The EU is requesting that Australia protect EU food GIs at the same high level that the EU GI framework provides. Therefore, the negotiations present an opportunity for Australia to consider the implementation of a food GI framework. This is important on two main bases: first, to consider the protection requested by the EU for EU food GIs and, second, to protect the assets that Australia has in Australian regional names, that are used on food products to make an origin claim, as food GIs.

An example of an EU country that has protected food GIs since the 1990s is Italy. Since 1992, Italy has operated under a sui generis food GI framework as provided for in the European Union Regulation EU No. 1151/2012 of the European Parliament and Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (EU–Italian food GI framework).[1] Italy currently has 299 food GI registrations,[2] the highest number of food GI registrations in the EU. Therefore, in pursuance of my PhD, Italy was the ideal case study to determine the worth of a food GI framework. I conducted interviews with a variety of food producers, agricultural industry-based organisations, and GI Consortiums as part of the Italian fieldwork. The overall aim and objective was to determine the effectiveness of the EU–Italian food GI framework in protecting the connection between food and origin and the lessons that could be learned from the EU–Italian food GI framework in considering implementation of a food GI framework in Australia. The Italian fieldwork revealed that a food GI framework was an effective legal basis to protect the connection between food and origin. It provided valuable insight into the elements required for a successful food GI framework.

The overall aim and objective of the South Australian fieldwork, which I also conducted in pursuance of my PhD, was to determine whether the interviewees considered that Australia should implement a food GI framework. Interviews were conducted with regional food producers based in the South Australian regions of the Barossa Valley and Adelaide Hills, as well as other representatives of the South Australian food industry, as part of the South Australian fieldwork. The South Australian fieldwork revealed that regional food producers based in the Barossa Valley and the Adelaide Hills were interested in a food GI framework. The South Australian fieldwork provided valuable insight into the elements that the regional food producers considered necessary for a successful Australian food GI framework.

Against the backdrop of this fieldwork, I recommend that Australia implement a food GI framework to overcome the deficiencies of current consumer protection, passing off and trademark laws that inadequately regulate the connection between food and origin. My research disclosed that these laws are deficient in the following main ways:

• They allow food producers and traders to use regional branding on food labels that just fall short of being misleading or deceptive, or involving passing off, even though the food only has a weak connection with the named region;
• They do not give regional food producers enough ex ante guidance as to when they can make an origin claim on food labels and products, especially where some of their ingredients are sourced, or some of the food production takes place, outside the named region; and
• They do not adequately regulate whether there is a clear connection between food and origin before a regional name can be used on a food label to make an origin claim.

As a result, many food producers use regional branding on food labels to make origin claims on food products that lack any clear or strong connection with the region claimed. In doing so, many food producers and traders take advantage of, and benefit from, the reputation that Australian regions have for producing quality regional food and the value that accordingly exists in the relevant Australian regional names. For more information on these deficiencies, and problems resulting therefrom, refer to my series of articles on “Australian Laws and Regulations on Regional Branding on Food and Wine Labels” Part 1 and 2 published in the Australian Intellectual Property Journal available at: http://sites.thomsonreuters.com.au/journals/2019/03/14/australian-intellectual-property-journal-update-vol-29-pt-2/ and at: http://sites.thomsonreuters.com.au/journals/2019/04/02/australian-intellectual-property-journal-update-vol-29-pt-3/.

I recommend that a food GI framework is not only important for Australia at a national level to overcome the deficiencies highlighted above; it is also crucial at an international level. As Australia and the EU commence the fourth round of negotiations of the AUSEUFTA, food GIs are a major negotiation issue between Australia and the EU.  In addition, food GIs are also an important trading issue for many of Australia’s neighbouring countries such as China, Thailand, Japan, Malaysia, Indonesia and Singapore. Many of these countries have recently implemented their own food GI frameworks to protect local regional names used on food products to make origin claims. They are seeking to trade with countries that provide food GI protection pursuant to a dedicated GI framework to achieve the same high level food GI protection at an international level as that provided pursuant to their national framework.

Furthermore, many of these countries are negotiating FTAs with the EU and/or have finalised negotiations that provide for food GI protection. Most recently, Japan and the EU finalised the Economic Partnership Agreement that commenced on 1 February 2019 and Singapore and the EU finalised the Economic Partnership Agreement that commenced on 15 February 2019. FTAs that the EU enters into with Australia’s neighbouring countries have the potential to impact on the food terms that Australian food producers can use on foods they export to those countries that have entered into a FTA with the EU. If Australia’s neighbouring countries agree to protect EU food GIs pursuant to their FTA with the EU, that are also terms that Australian food producers use on food products that they export to those countries, this has the potential to impose trade restrictions on Australian food producers.

Therefore, my overall recommendation is that it is very important that Australia no longer waits to develop its own food GI framework, but instead designs a food GI framework tailored to Australia’s needs that will appropriately protect the assets that Australia has in regional names which identify food that is qualitatively connected to Australian regions. The implementation of a food GI framework will bring benefits for the Australian food industry and trade at a local, national and international level.

Dr Paula Zito, PhD

Food Geographical Indications Consultant
Legal Practitioner (Intellectual Property & Commercial Law)
Associate Teacher in Law, Adelaide Law School
E: drpaulazito@internode.on.net or paula.zito@adelaide.edu.au
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