A geographical indication identifies a good as originating in a region, area or locality where its quality, reputation or other characteristic is attributable to that geographical origin.
Geographical indications (GI) are a form of collectively owned intellectual property rights usually associated with the production of foodstuffs like wine, spirits, cheeses and meat products from particular regions, areas or localities. For example, Champagne is a wine GI that may only be used on sparkling wine produced in the Champagne region in France.
Protection for geographical indications in New Zealand
In New Zealand, protection for geographical indications is provided by:
- the Fair Trading Act 1986
- the common law tort of ‘passing off’
- trade mark law
- the Geographical Indications (Wine and Spirits) Registration Act 2006.
The Geographical Indications (Wine and Spirits) Registration Act 2006 establishes a registration regime for the geographical indications of wine and spirits. The regime is administered by the Intellectual Property Office of New Zealand (IPONZ).
EU-NZ free trade negotiations
New Zealand is negotiating a free trade agreement with the European Union (EU), one of the world’s largest trading entities. Information about these negotiations is available on the Ministry for Foreign Affairs and Trade (MFAT) website.
As part of these negotiations, the EU is looking for New Zealand to recognise and protect a list of names as GIs to a standard similar to that which currently exists in the EU.
In December 2018, the MFAT published the names the EU are seeking GI protection for and invited submissions on whether any of these should be protected in New Zealand. Consultation on the list closed on 19 March 2019.
In conjunction with the Ministry of Business, Innovation and Employment, MFAT has recently release a discussion paper on the regulatory framework the EU is proposing for New Zealand to adopt to protect GIs. The discussion paper outlines the standards of protection for GIs that the EU is proposing and invites submissions on the likely impact of agreeing to adopt those standards.
The closing date for submissions is 5pm, Friday 27 March 2020.
The discussion paper and information on how to make a submission is available on the MFAT website(external link).
Fair Trading Act 1986
Section 9 of the Fair Trading Act 1986 provides that "No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".
A product that does not originate from the geographical area indicated, or that does not possess the characteristics for which a geographical indication is known, could be found to breach the Act.
Passing off of goods or services
The law of passing off prevents one trader from passing their goods or services off as those of another.
In New Zealand, passing off has been used by French wine interests to prevent non-French winemakers from labelling their sparkling wine with “Champagne”, a term protected as a geographical indication in the European Community.
For a passing off action to succeed:
- there must be goodwill attached to the goods or services
- there must be a misrepresentation, whether intentional or not
- there must be damage to the goodwill.
Trade mark law
A geographical indication may be protected in New Zealand as a trade mark, including as a collective or certification trade mark.