Cheers! New Zealand now accepts geographical indications (GIs) registration for wines and spirits. Launched just last month, the register allows brand owners to register a product from a particular geographic region if it has certain characteristics or qualities attributed to the location. Famous GIs from other parts of the world include Scotch whisky and champagne.
Before the register was created, producers had to prove market recognition of their products on a case by case basis. New Zealand wine exports reached NZ$1.6 billion ($1.18 billion) in 2016, a 14% jump compared to 2014. The need for brand protection against counterfeits is stronger than ever.
“The registration of GIs will provide a solid platform for New Zealand wine producers to promote our wines and regions in international markets and ensure investment in our regional identities are better protected globally,” says Jeffrey Clarke, acting CEO, New Zealand Winegrowers. “Having a formal registration system in New Zealand will also make it much easier for us to register our GIs within other countries’ GI registration systems.”
The Geographical Indications (Wine and Spirits) Registration Regulations 2017 is modelled after Article 23 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement which offers additional protection for GIs for wines and spirits. “The Act is very broadly supported by the entire New Zealand wine industry because it does not impose red tape, but instead implements a pure GI registration system that exactly follows the concept of GIs set out in TRIPS,” says Clarke.
He adds: “The system is absolutely not an appellation contrôlée system, instead, it fully protects our winegrowers’ ability to innovate and does not impose European-style growing restrictions, or production restrictions or winemaking practice restrictions.” The appellation d’origine contrôlée is a French GI system that has a rigorous set of standards for products.
What constitutes a wine or spirit?
For wine, the GI Act only applies to grape wine. The definition in the Act cross-references to the definition of “grape wine” in the Wine Act 2003:
“the product of the complete or partial fermentation of fresh grapes, or a mixture of that product and products derived solely from grapes”.
For spirits, the Act includes this definition:
means a potable alcoholic distillate, including whisky, brandy, rum, gin,
and vodka, produced by distillation of fermented liquor derived from food
sources, so as to have the taste, aroma, and other characteristics
generally attributable to that particular spirit.
What’s the difference between registering for New Zealand and foreign products?
The registration processes for New Zealand and foreign wines/spirits are different as the objectives for each are different.
“For foreign geographical indications, the process is designed to ensure that the geographical indication meets the definition of geographical indication in the Act, is protected as a geographical indication in its home country, and does not fall foul of one of the exceptions in the Act such as being considered a generic term or being already registered as a trade mark in New Zealand,” says Kieran O’Connell, a senior associate at AJ Park.
“Additional information like transliterations/translation of the GI and a statement that the GI is protected in its country of origin and has not fallen into disuse is also required for foreign GIs,” says Richard Watts, a partner at Simpson Grierson.
For New Zealand geographical indications, the process is more complex.
“The government is for the first time assessing whether a sign should be recognised and protected as a geographical indication,” explains O’Connell. Applicants are required to provide details of the quality, reputation, or other characteristic being relied upon to meet the definition of geographical indication. They also have to provide details of the boundaries to which the geographical indication relates. “The government will want to ensure that the process results in geographical indication status being conferred correctly without prejudicing winemakers with an interest,” adds O’Connell.
“A New Zealand GI can only be used in relation to wine if at least 85% of the wine is obtained from grapes harvested in the geographical place to which the GI relates,” says Watts. “The remainder of the wine, if any, must be obtained from grapes harvested in New Zealand.”
How much does it cost?
The government fee to register a geographical indication (foreign or New Zealand) is NZ$5,000 ($3631). To renew a registration after the first five years, it will cost NZ$2,000 while the fee to renew a registration after each subsequent 10 year period is NZ$500.
Pitfalls to watch for
As countries have different approaches to GIs, there are discrepancies in how countries implement their TRIPS obligations on GIs. A foreign one will need to be protected in its home country or it will not be registerable in New Zealand.
“Establishing protection at home should be easy for those with a registration system, but it might be more challenging where protection is furnished in some other way, such as through more general consumer protection laws,” explains O’Connell.
At the moment, the register is only limited to wines and spirits and no plans have been announced to include other products. “However, because the Fair Trading Act 1986 separately provides prohibition on misleading and deceptive conduct, other GIs could still potentially have legal recourse to protect them from misleading misappropriation,” says Watts.
For New Zealand GIs, there could be disputes about boundaries. “The New Zealand wine representative body has indicated that it will take responsibility for the co-ordination and filing of applications for the most recognisable wine regions in New Zealand, meaning that most conflicts should be avoided,” says O’Connell. “However, where a boundary is proposed to lie will undoubtedly be carefully considered by winemakers the country over.”
While no GIs registered in accordance with international trade agreements are on the register, it could open up doors for New Zealand if and when it includes GIs in free trade agreements, such as one with the EU. “Exactly how this will work has been kept pretty loose in the legislation,” says O’Connell. “I expect that this drafting is deliberate in its flexibility given lists of GIs are often the subject of free trade negotiations.”
The ability to register wines and spirits in New Zealand is welcome news for brand owners both within the country and in countries where GIs can be registered. However, much coordination is needed on determining boundaries. As countries have different standards on meeting TRIPS requirements, potential issues such as interpretation may come up as New Zealand handles these cases and how GIs negotiated in free trade agreements are registered.