Geographical Indications, European Trade and Indigenous Rights – a Fair Exchange?

Earlier this year the Ministry of Foreign Affairs and Trade (“MFAT”) held consultation workshops discussing the inclusion of mutual recognition of geographical indications in negotiations for a free trade agreement with the European Union (“EU”). In this forum, questions were raised around the equity of the proposed exchange. While this article discusses some of these concerns, and proposes an alternative basis for negotiation, the contents are not part of the MFAT negotiation process.

What are Geographical Indications?

The term “geographical indication” refers to a place that is recognised as the origin for product containing special characteristics. This can be a special tang to the wine, or bite to the cheese, or a special method of manufacture that lends the crystal that extra gleam.

The EU has a well-developed portfolio of produce indicative of the place of origin developed from centuries of farming and industry. Laws to identify and protect these geographical indications are already developed and recognised throughout the EU.

In the current negotiations there are over 2000 identified European geographical indications for wine, spirits and food goods.

By comparison, New Zealand (NZ) is a young country. While NZ produce is fast becoming known for its own flavours and styles, formal recognition of geographical indications is still a relatively new concept in law. NZ recognition of geographical indications is at present limited to the Geographical Indications (Wine and Spirits) Registration Act 2006 and registration has only been available since 2018.

NZ currently has 25 recognised local geographical indications for wine – including Marlborough and Matakana.

The Current Proposal

Put simply, the proposal is for mutual recognition of registered geographical indications. In exchange for recognising the EU geographical indications, the EU will provide trade advantages to NZ to make it easier to trade into Europe.

Detail around a regulatory framework is needed and will be subject of a further negotiation if the negotiation has a satisfactory outcome. It is proposed that an agreement could include recognition of future geographical indications pertaining to food and beverages.

MFAT’s Position

MFAT recognises that there is an imbalance of size and power that makes trade into Europe difficult. The impression the writer was left with after the consultation meeting, was the MFAT considers the provision of reciprocal recognition of geographical indications was a small part towards achieving an agreement with significant financial benefits for NZ.

What this Means in Practice

Many terms that may be considered a geographical indication in the EU function more as an indicator of style in NZ – for example, cheese types like camembert and feta, or effervescent wines like prosecco.

Under the current proposal EU geographical indications will be recognised in NZ unless there is a successful objection to recognition of any one term. The onus therefore is on New Zealanders to review the proposed list of over 2000 geographical indications and raise an objection to inclusion.

If NZ recognises EU listed geographical indications, producers and traders will also need to review the list of geographical indications and consider any adjustments to their use. This may mean adopting new “style” terms and taking steps to change the way consumers approach and recognise produce.

Where will NZ “miss out”

Nothing in the current scope of negotiations allows NZ to propose indigenous terms unrelated to geography for recognition by the EU.

NZ holds high cache in its Maori language term for aspects of tapu and taonga and equally for noa terms that carry with them connotations of origin and quality.

Maori words are often exploited by overseas producers, including prominent use of the word HAKA, ta moko and pukana, with seemingly no thought as to whether use of these terms is offensive.

In the event of a successful negotiation on the current grounds, NZ will recognise EU geographical indications, but the EU will not be compelled to recognise NZ’s own special linguistic terms.

A Workable Alternative?

Mis-use and offensive use of Maori terms and images often makes the news headlines. NZ provides a framework to some degree to allow for objection to use of Maori terms as a trade mark. However, in the writer’s opinion, formal recognition in a searchable register would go a long way towards enabling consumers in NZ and abroad to identify and recognised special terms.

International negotiations require a firm frame of reference in order to recognise rights with clarity. So once a register of special Maori terms exists, surely there is an ability to enter this as framework for negotiations?

What Should You Do

The benefits to NZ traders in establishing free trade into EU needs to be carefully weighed up against the potential downfalls of the proposed framework currently under negotiation. As well as questioning whether we should sacrifice the ability for local traders to continue to use terms they’ve used for years, like FETA, we should ask whether these negotiations risk being a missed opportunity to introduce means to prevent the EU from using words significant to NZ such as Maori words which arguably act as GIs.

For NZ food and wine producers: Understand the implications of recognising EU geographical indications and get advice now about your current use of style-based terms. Are these terms likely to be identified as geographical indications? Do you need to adjust your use?

For those who are keen to protection NZ’s special identity: Have your say! Not just for lawyers and producers to weigh in on negotiations – we all need to have a say when invited. Look out for opportunities to be involved in consultation process.