Geographical Indications in the UK after 31 Dec 2020
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Jane Lambert
As the United Kingdom is a member of the World Trade Organization, Her Majesty's Government is required to protect geographical indications by Section 3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"). Until the end of 2020, those obligations will continue to be discharged on the United Kingdon's behalf by the European Union pursuant to art 127 (1) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ("the withdrawal agreement"). The arrangements by which the obligations are discharged at present are described in the following DEFRA guidance note, EU protected food names: how to register food or drink products 22 May 2015 and summarized in my article Geographical Indications - "If it's outside Yorkshire it's not worth ..................!" 30 Aug 2913 IP Yorkshire. From 1 Jan 2021, the UK government will have to create new legal and administrative frameworks. The updated guidance Protecting food and drink names from 1 January 2021 of 28 Sept 2020 sets out what they will be.
What are Geographical Indications?
In Geographical Indications (27 May 2010 updated 27 Sept 2017 NIPC Brading) I wrote:
"A geographical indication' is defined as a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin (see the "Geographical Indications" page of the WIPO website). The sign must identify a product as originating in a given place. In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production. Examples include 'Scotch' for whisky from Scotland, 'Champagne' for sparkling wine from the Champagne region of France and 'Parma. ham for dry-cured ham from the Parma region of Italy."
The article explains that geographical indications may be protected by registration as collective or certification marks, the law of passing off or sui generis legislation such as Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ L 343, 14.12.2012, p. 1–29 ). The products from the UK that are currently protected by that legislation are listed in Protected food name scheme: UK registered products of 15 Jan 2014 (last updated 7 Aug 2019).
The EU Legislation
Regulation 1151/2212 establishes three types of protection:
- protected designation of origin (PDO) for products originating in a specific place, region or, in exceptional cases, a country whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors and the production steps of which all take place in the defined geographical area;
- protected geographical indication (PGI) for products originating in a specific place, region or country whose given quality, reputation or other characteristic is essentially attributable to its geographical origin and at least one of the production steps of which take place in the defined geographical area; and
- traditional speciality guaranteed (TSG) for products or foodstuffs that results from a mode of production, processing or composition corresponding to traditional practice for that product or foodstuff or produced from raw materials or ingredients that are those traditionally used.
Replacing EU Legislation
Council Regulation 1151/2012 was adopted under the EU Treaties. Art 50 (3) of the Treaty on European Union provides that the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement. However, art 126 of the withdrawal agreement provides for a transition or implementation period, which will end on 31 Dec 2020 during which time EU law will continue to apply to the UK. S.3 (1) of the European Union (Withdrawal Act) 2018 incorporates Council Regulation 1151/2012 into the laws of England and Wales, Scotland and Northern Ireland with effect from 1 Jan 2021. S.8 (1) permits ministers to make such provision by regulation as they consider appropriate to prevent, remedy or mitigate any failure of retained EU law to operate effectively, or any other deficiency in retained EU law arising from the withdrawal of the UK from the EU.
The UK Legislation
In Oct 2018, DEFRA carried out a Consultation on establishing UKGeographical Indications (GI)schemes after EU Exit. The views of the public were canvassed on the following issues:
"1. What should UK logos of the PDO, PGI and TSG schemes represent, and how might this be reflected in their design?
2. Is three years an appropriate adoption period for existing UK GI holders to update their packaging to reflect the new logo? If not, how long should the adoption period last?
3. Do you consider that the First-tier Tribunal is an appropriate destination for the handling of appeals against decisions by the Secretary of State?
4. Do you consider that the General Regulatory Chamber Rules will suit the handling of these appeals? If not, why not?
5. Do you agree that the right to appeal should apply to all decisions listed at 4.12? Are there any others that should be added?
6. Do you have any other comments on the new UK GI schemes, or the wines and spirits regulations, as set out in this document?"
DEFRA received 92 responses which it published in a Summary of Responses on 25 Jan 2019.
Following the consultation, the government made The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 SI 2019 No 1366 which modify Council Regulation 1151/2012 with effect from 1 Jan 2021.
The UK Scheme
The new UK scheme is essentially a continuation of the EU scheme. Food and drink, agricultural products including beer, cider and perry, wines, spirits and aromatized wines will continue to be protected as PDO, PGI or TSG registered products. Such protection will be available to both UK and overseas producers. Producers registered under the EU scheme will continue to be protected under the British scheme after 1 Jan 2021.
DEFRA will administer the new scheme. It will keep registers of PDO, PGI and TSG protected product names and process new applications for registration. The Department will publish details of the operation of the British scheme before 31 Dec 2020.
Products such as Irish whiskey and Irish cream will be protected in both Great Britain and Ireland regardless of whether they are produced in the Irish Republic or Northern Ireland. Unlike producers in Great Britain who will need to apply for protection in the UK before they can apply for protection in the EU, Northern Irish producers need not apply for EU protection before applying for UK protection.
It will be mandatory for producers and retailers of products that are protected under the EU scheme to continue to use the EU logos for sales in Northern Ireland, It will be optional for producers and retailers of products registered under the UK scheme to use the logos in Northern Ireland.
Protection of British Products Overseas
Geographical indications that are protected under the EU scheme before 31 Dec 2020 should continue to be protected in the EU under that scheme after that date. British producers that are not protected by the EU scheme can also seek the registration of certification and collection trade marks in the EU or individual member states. Geographical indications may be protected under bilateral or multilateral free trade agreements (see Jane Lambert Agreement in Principle on a Comprehensive Economic Partnership with Japan 12 Sept 2020 NIPC Brexit).
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