Chaining ‘feta’ and other product names under the New Zealand-EU Free Trade Agreement | Denton
New Zealand has a free trade agreement with the EU, which aims to remove barriers to trade by eliminating tariffs for certain exporters. As part of the swap, New Zealand’s existing Geographical Indication (GI) regime will extend from wine and spirits to also cover food. The sting in the tail is that kiwi fruit traders will have to forego using some household names, such as “feta”, “parmesan”, “sherry” and “port”.
The text of the FTA and a full list of GIs are not yet finalized, but we have put together some key points for New Zealand food and drink producers, distributors and exporters.
What is a geographical indication (GI)?
A GI is a name that identifies a product as coming from a specific territory or geographical region. A GI indicates that a product has certain qualities that are unique to where and how the product is made – “champagne” for example. Under New Zealand’s existing GI system (which only covers wines and spirits). Anyone who produces or markets products that meet the defined requirements can use the applicable GI. For example, to use a New Zealand registered GI for wine, such as “Kumeu” or “Waiheke Island”, at least 85% of the wine must come from grapes harvested at the location of the GI and the rest from New Zealand. -Zeeland.
It remains to be seen how our laws will change in order to comply with our obligations under the FTA. Foodstuffs will likely be incorporated into the existing GI regime, but existing intellectual property laws could also be used as a mechanism to protect new GIs.
Key points for New Zealand food and drink producers, distributors and exporters
- Restricted rights: Kiwi fruit marketers will have to stop using terms such as “sherry”, “port”, “feta” and “prosecco” on their products within the next 5 to 9 years. During the phase-out period, traders of these products should clearly indicate the place of origin on their packaging. Those who use GIs as flavor indicators (eg, feta-flavored potato chips and Parmesan-flavored crackers, pastas and soups) should also be careful.
- “Gruyere” and “Parmesan”: Existing cheese traders can continue to use these names, provided they have done so for at least five years before the entry into force of the FTA. These traders must include on their packaging a clear indication of the geographical origin of the product. Cheese traders must also consider their obligations if they export these products.
- Secure spaces: Merchants using “gouda”, “edam”, “mozzarella”, “havarti”, “haloumi”, “brie” and “camembert” can continue to do so…for now. Both the EU and New Zealand may add new GIs to the list in the future, and there are already discussions about adding “havarti” in particular.
- The devil may be in the detail (yet to be determined): Especially since the EU has already called for rules that would prevent an unauthorized cheese producer from labeling their cheese as being “like” or “in the style” of a GI-protected cheese name. The use of words or images that recall or evoke a protected GI can also be problematic.
There’s still a lot we don’t know
There are many interesting questions regarding the interaction between new GIs and existing names and trademarks, such as:
- How lookalike names should be treated. Commentators have suggested New Zealanders adopt the Te Reo word “wheta” as a replacement for “feta”. We assume, but it is not yet clear, that the use of phonetically equivalent trade names will not avoid liability. And what about similar names – could the “Steinhäger” GI for spirits have an impact on the iconic Steinlager brand? We would probably think not.
- How competing interests will be dealt with, eg ‘cava’ is a GI for wine from Spain. What impact will this have on the use of kava, a popular ceremonial drink in the South Pacific, including New Zealand?
- The FTA includes a provision that any proposed future GI can be objected to if it is “offensive”, including if it is offensive to Maori. It is unclear if the first batch of IG will be subject to the same scrutiny.
Opportunities for New Zealand
While there are winners and losers from IG expansion, there are plenty of benefits. New Zealand traders are already seeing the FTA as an opportunity to gain recognition for New Zealand GIs in Europe. Food producers also have the option of developing and protecting GIs for Te Reo names associated with certain products and places.
Notable Work Project GIs
While the final list of GIs has not yet been agreed, the EU has proposed over 2,100 names for consideration in a work project. In contrast, New Zealand currently has 23 GIs for wines or spirits. Here are some of the EU GIs most likely to impact New Zealand traders.
Some traders will need to think up alternative brand names, and it should be kept in mind that choosing the words Te Reo is not necessarily the easiest or most appropriate approach.