IP Australia has released a consultation paper on Australia-European Union Free Trade Agreement: Consultation on a Possible New Geographical Indications Right.
The paper states
In June 2018, the Australian Government launched negotiations for a comprehensive and ambitious Free Trade Agreement (FTA) with the European Union (EU). Currently, the only way to improve access to the EU market, is through FTAs. The EU is Australia’s third largest trading partner and two-way investment partner. Securing improved access will deliver new trade and investment opportunities across Australia, including for our rural and regional areas. Creating more opportunities, on preferential terms, in a large, stable market such as the EU, with its population of 440 million potential consumers is more important than ever as we recover from the global COVID-19 pandemic, and will support and drive our economic and trade interests well into the future.
In order to secure Australia’s interests in the FTA, the Government is engaging with the EU on its Geographical Indications (GI) interests. The Government has made no commitment to protect specific EU GIs and has made clear it would only consider doing so if the overall FTA deal was good enough for Australia, including by delivering on Australia’s agricultural market access interests. Nothing in this consultation paper means the Australian Government has agreed, or will agree, to make any changes to its existing GI regulatory framework or policy.
This consultation seeks industry, business and community views on the type of system changes that may be considered in the event a negotiated outcome gave rise to changes to the way we currently protect GIs.
Consistent with its approach toward other FTA partners, the EU has identified the protection of GIs as one of its key objectives in the negotiations. As part of the FTA, the EU has asked Australia to agree to protect 236 spirit names and 172 agricultural and other names as GIs. The EU has also proposed a number of ways in which it would like Australia to protect EU GIs. You can find the proposals that the EU put forward on GIs on the European Commission website.
The EU’s proposals on how its GI terms would be protected or the standard of protection to be afforded to those GI terms also remains subject to negotiation. We note that the EU has agreed different outcomes on GIs in its other FTAs, including with Canada, Vietnam, Singapore, Japan, and Mexico for example, reflecting the specific interests and circumstances at play.
Should Australia agree to protect specific EU GI terms through the FTA and change the way we currently protect GIs, we would need to amend our law. Were we to do so, the Government would amend the Trade Marks Act 1995 to create a GI right.
The Government will continue to engage closely with industry, business and interested stakeholders as part of the Government’s efforts to enhance the transparency in the A-EUFTA negotiations. This covers all aspects of the FTA negotiations, including GIs. For example, from 13 August to 13 November 2019, the Australian Government held a public objections process on the GI terms the EU has asked Australia to protect as part of the FTA.
This consultation builds on our existing engagement by seeking views on core elements of an Australian GI system we consider relevant and appropriate to our circumstances. Some of these elements have been raised by the EU in the negotiations, some have not, as noted throughout the paper.
IP Australia is seeking comments addressed to the following questions:
Registering a GI
Q.1 What types of goods should be eligible for protection as a GI?
Q.2 Should GIs filed under a new system cover a single good or multiple goods?
Q.3 Are there particular safeguards that should be considered for a new GI right?
Q.4 Under what circumstances should two rights, for example a new GI and an earlier trade mark, be able to co-exist?
Q.5 What level of detail should be required for any conditions of use, such as production methods, boundaries and what it means for a product to come from the region?
Standard of protection
Q.6 Should a new GI right extend the international standard of protection for wines and spirits to all goods? Are there other practices that should be prevented?
Using a GI right
Q.7 Who should be able to apply for a GI in Australia?
Q.8 Should those who meet the requirements of a GI be able to use the GI automatically, or should they need approval from the GI right holder?
Q.9 Should any user be able to enforce a GI or should it be limited to the GI right holder?
Q.10 Should criminal enforcement be available for GIs registered in Australia? Costs and Benefits
Q.11 What would be the costs and benefits to Australian industry, producers, and consumers of creating a new GI right?