The delay in Brexit is a prime opportunity to get your IP house in order especially when it comes to Geographical Indications, warns IP solicitors.

What are Geographical Indications?

They are a form of intellectual property right.

Geographical Indications (GIs) identify a product as originating in a country, region or locality where a specific characteristic of the product is attributable exclusively to the place where it was produced. For example, they may afford protection to products having a traditional recipe or method of production in connection with the area or place in which it is made.

In the UK, these labels are governed by EU and WTO rules and ensure that only products genuinely originating from the designated region are allowed to be identified as such in trade. The labels serve to reduce unfair competition among producers (domestic and foreign) and reduce imitation. Authenticated produce will often attract a premium price. The products protected by these labels represent an important proportion of the UK’s food and drink exports by value – approximately £5 billion in UK exports, or roughly 25% of all UK food and drinks exports by value. They also have significant cultural importance.

These labels are not only valuable to businesses – they are considered to be synonymous with quality and consumers are able to purchase labelled products confidently, knowing that they are purchasing a specific product.

Under EU law, there are several geographical indication labels available to protect the heritage of food and drink, namely:

  1. Protected Designated Origin (PDO) – or products produced, processed and prepared within a specific geographical area and with certain features and characteristics traditional to the area;
  2. Protected Geographical Indications (PGI) – for products produced or processed or prepared within a specific geographical area and with certain features and characteristics traditional to the area; or
  3. Traditional Speciality Guaranteed (TSG) – for products with traditional or customary names and that have features which serve to distinguish them for other similar products.

At the time of writing, there were 72 UK products protected by these registrations (27 PDO, 41 PGO and 4 TSG). There are 13 additional pending applications. By way of comparison, France had 249 registered products, Germany had 91 and Sweden had 8.

The normative power of the European Union means that these labels have granted attractive protection for domestic EU products, both within the internal market and when exported abroad. This protection is safeguarded as GIs are often a European “red-line” in international negotiations, an area which the EU is not prepared to compromise.

As the effective use of GIs has spread, we have seen an increase of names indicating that they are similar products (think “Greek-style” cheese or yoghurt). While this may be an attractive solution for a business producing a product that is similar to a GI protected product, there is little guidance over what is or is not acceptable and may not be the safe haven you hope for.

What guidance has the government given on post-Brexit GI protection?

Guidance published by the Department for Environment, Food and Rural Affairs (DEFRA) on 5 February 2019 stated that if the UK leaves the EU without a deal, the UK will set up its own geographical indications schemes. These schemes would mirror the EU schemes and seek to fulfil the UK’s World Trade Organisation (WTO) TRIPS obligations (Trade-Related Aspects of Intellectual Property). Such schemes would be managed by DEFRA and would use the same classes as the current EU schemes listed above.

The guidance suggests that all existing UK products registered under the EU schemes will automatically obtain protection under the new UK schemes. The new UK schemes will accept applications from both UK and worldwide producers.

When the guidance was published, no agreement had been reached as to the continuing status of the UK geographical indications registered in the EU following Brexit. The draft withdrawal agreement contains provisions for the recognition of pre-existing EU GIs in the UK on Brexit. The provisions in the withdrawal agreement are not apparently reciprocal, however DEFRA stated that it anticipated that protection will continue for all UK GIs currently registered under the EU schemes in a deal or no-deal scenario.

If EU GIs were not recognised in the UK it is possible that, faced with the temptation of consumers clamouring for locally sourced products, retailers would seek to use recognisable EU GIs in respect of UK products (for example, use the strongly defended label “Champagne” in respect of British sparkling wine made with the same grapes, grown in similar soils and using the same methods). Unless the geographical name has become generic, this is likely to prove to be dangerous territory. Signatory members of the WTO’s TRIPS agreement are obligated to provide the legal means for interested parties to prevent:

  1. the misuse of a designation that indicates that the goods in question originate in a geographical area other than the true place of origin in a manner which misleads the public; and
  2. any use which constitutes an act of unfair competition;

There are additional requirements in respect of wines and spirits.

In contrast, the government announced in December 2018 that it had reached an agreement with EEA-EFTA states on the continued, reciprocal protection of existing geographical indications. The government said that it would pursue this agreement even in the event of a no-deal Brexit.

Why does this matter?

Delayed EU exit is an opportunity to put your house in order.

If you are a producer in the food and drink sector, now is a good time to consider what intellectual property rights you have in your produce and how you can best protect your product, regardless of the outcome of Brexit.

We can advise you in this respect and also offer IP MOT and IP Audit services which serve to identify your existing intellectual property rights and advise you on how you may strengthen their protection. In particular, you may wish to review (or start!) your domestic and EU trade mark portfolio.

Anything else?

DEFRA has also updated its guidance on preparing the food and drink sector for Brexit. This includes guidance on importing and exporting, food labelling, marketing standards, employees, tariffs, etc.