Geographical Indications: Ready, Set…Almost Go
Monday 19th June 2017
Article written by: Kate Giddens
The long awaited Geographical Indications (Wine and Spirits) Registration Act 2006 (GI Act), and accompanying regulations, look set to be implemented in New Zealand by late July.
Speaking at a New Zealand Winegrowers event on 30 May, the Minister of Commerce and Consumer Affairs the Honourable Jacqui Dean told winegrowers that “Legislation to enable the wine industry to formally register their geographical indications in New Zealand is on track to come into force in late July”.
What is a GI?
A geographical indication (GI) shows that a wine or spirit comes from a specific region, and possesses particular qualities or characteristics as a result. Often, a GI is the name of the place from which the wine or spirit originates. For example, the name CHAMPAGNE refers to a sparkling white wine originating from the Champagne region of France.
GIs are a ‘collective’ right. This means that any producer who makes goods from a particular area may use the GI on their product so long as the goods meet the particular production and characteristic requirements relevant to that particular GI.
Types of GIs
In addition to New Zealand GIs, the new Register will recognise enduring New Zealand GIs (“New Zealand”, “North Island” and “South Island”), foreign GIs registered and applied for in New Zealand, foreign GIs registered as part of international trade agreements, and GIs recognised by statute.
Who Can Apply?
Any “interested” person can apply to register a GI. Typically this would be a wine or spirits producer or trader or an association of producers or traders.
Ms Dean noted that “[b]ringing the Geographical Indications (Wines and Spirits) Registration Act and Regulations into force will ensure we can maintain and enhance the reputation of New Zealand wines and spirits”.
The ability to register regional names for wine and spirits will enable New Zealand wine and spirit makers to:
- promote and protect their product in competitive overseas markets;
- protect their reputation and build value;
- gain access to overseas markets where government-recognised GIs are required;
- register New Zealand GIs overseas;
- give consumers confidence in a product’s authenticity, assuring them of its value for money; and
- take action against false claims of origin.
What Cannot be Registered?
A GI cannot be registered if its use or registration is likely to be offensive. Care should, therefore, be taken when applying for names with cultural significance. In addition, a GI will not be registrable as such if it is the same as the customary name of a grape variety or has become the common name in New Zealand for the goods; for example, the grape variety ‘syrah’ or the spirit ‘vodka’. In addition, if there is a trade mark on the Trade Marks Register that is similar or identical to the GI, the registered trade mark will have priority.
The Register will be fully electronic (sortable and searchable) and contain information on, among other things, the status of the application and the basis of registration (e.g. under examination, registered by Treaty), renewal dates, maps of the geographical area in question, copies of any documents filed relating to the GI, the registrant/applicant details and any conditions of registration imposed by the Registrar.
How to Apply
In general, foreign GIs will be able to be registered in New Zealand where there is a corresponding GI recognised in the country of Origin. Registration for these GIs should be simpler to obtain as they only require the applicant to furnish proof of this protection.
As they are not already formally recognised, the burden on applicants for a New Zealand GI will be much higher. They will need to supply, among other things, a data file containing the geographical coordinates that define the boundary of the proposed GI and an explanation as to the particular reputation, qualities and characteristics that are ‘essentially attributable’ to the region and evidence to support this. Evidence that is likely to be relevant is information on:
- history relating to the word or expression to indicate the area as a GI;
- history of the founding and development of the area for grape growing for wine or the production of spirits;
- geographic features in the area;
- soil composition in the area;
- climate in the area;
- methods of production (“human” factors) for the wine or spirits originating in the area;
- marketing and sales of wines or spirits originating in the area, demonstrating the reputation of those wines or spirits; and
- qualities of the wine or spirit from the area
Once filed, the application process is very similar to that associated with trade mark applications. The application will be examined within three months of filing to make sure it complies with the requirements of the GI Act. If it does, it will be accepted for registration subject to opposition by third parties. If it is not, a compliance report will be issued detailing how the application does not comply and the amount of time the applicant will have to file a response (being a minimum of 6 months).
It will cost NZD5,000 (approx. EUR3238 or USD3627) to apply for registration of a GI; a fee that will not generally be refundable once the application has been submitted.
A GI is effective for an initial period of 5 years from the deemed date of registration. After these 5 years have passed, the GI may be renewed for further periods of 10 years. The ‘five year’ renewal fee will be NZD2,000 (approx. EUR1295 or USD1451) and each subsequent application to renew will be NZD500 (approx. EUR324 or USD363).
If you are interested in registering a geographical indication in New Zealand, or would like to find out more about geographical indications and what they protect, please contact a member of our team today.
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.