The fettering of “feta” and other product names under the NZ-EU Free Trade Agreement

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New Zealand has secured a free trade deal with the EU, which is set to remove barriers to trade by eliminating tariffs for certain exporters. As part of the exchange, New Zealand’s existing geographical indications (GIs) regime will expand from wines and spirits to also cover food. The sting in the tail is that Kiwi traders will need to give up using some household names, such as "feta", "parmesan", "sherry" and "port".

The text of the FTA and a full list of GIs are not yet finalised, but we’ve put together some key points for food and beverage producers, distributors and exporters in New Zealand.

What is a geographical indication (GI)?

A GI is a name that identifies a product as coming from a specific geographical territory or region. A GI indicates that a product has certain qualities which are unique to the location and way in which the product is made – "champagne" for example. Under New Zealand’s existing GI system (which only covers wines and spirits). Any person who produces or trades in products that meet the defined requirements can use the applicable GI. For example, to use a New Zealand registered GI for wine, such as "Kumeu" or "Waiheke Island", at least 85% of the wine must be from grapes harvested from the GI location and the rest from New Zealand.

It remains to be seen how our laws will change in order to comply with our obligations under the FTA. Food will probably be incorporated into the existing GI regime, but existing IP laws could also potentially be used as a mechanism for protecting new GIs.

Key points for New Zealand food and beverage producers, distributors and exporters

  • Fettered rights: Kiwi traders will need to stop using terms including "sherry", "port", "feta", and "prosecco" on their products within the next 5-9 years. During the phase-out period, traders in these products should clearly indicate the location of origin on their packaging. Those using GIs as flavour indicators (e.g. feta flavoured potato chips and parmesan flavoured crackers, pasta and soups) should also take care.
  • "Gruyère" and "parmesan": Existing cheese-traders can keep using these names, provided they’ve been doing so for at least five years before the FTA comes into effect. Such traders will need to include on their packaging a clear indication of the geographical origin of the product. Cheese traders should also consider their obligations if exporting these products.
  • Safe spaces: Traders using "gouda", "edam", "mozzarella", "havarti", "haloumi", "brie" and "camembert" can continue to do so...for now. The EU and New Zealand can both add new GIs to the list in the future, and there are already discussions about adding "havarti" in particular.
  • The devil may be in the (still to be determined) detail: Especially as the EU has previously asked for rules that would stop an unauthorised cheese producer labelling its cheese as being "like" or "in the style of" a GI protected cheese name. Use of words or images that call to mind or evoke a protected GI may also be problematic.

There is still a lot we don’t know

There are many interesting issues around the interplay between new GIs and existing names and trade marks, such as:

  • How soundalike names should be treated. Commentators have suggested New Zealanders adopt the Te Reo word "wheta" as a replacement for "feta". We assume, but it’s not clear yet, that use of phonetically equivalent trade names will not avoid liability. And what of similar names - could the GI "Steinhäger" for spirits impact the iconic Steinlager brand? One would think surely not.
  • How competing interests will be treated, for example "cava" is a GI for wine from Spain. How will this impact use of kava, a ceremonial drink popular in the South Pacific, including in New Zealand?
  • The FTA includes a provision that any future proposed GI may be opposed if it is "offensive", including if it is offensive to Māori. It’s unclear whether the first batch of GIs will be subject to the same scrutiny.

Opportunities for New Zealand

Although there will be some winners and losers from the expansion of GIs, there is plenty of upside. New Zealand traders are already considering the FTA as an opportunity to achieve recognition of New Zealand GIs in Europe. There is also scope for food producers to develop and protect GIs for Te Reo names that are associated with certain products and places.

Notable GIs from the working draft

While the final list of GIs hasn’t been agreed yet, the EU has put forward over 2,100 names for consideration in a working draft. By contrast, NZ currently has 23 GIs for wines or spirits. The following are some of the EU GIs most likely to have an impact on New Zealand traders.

Geographical Indication Type of Product Restriction on use
Feta Cheese To be phased out within 9 years.
Gorgonzola Cheese To be phased out within 5 years.

Gruyère

Cheese* Immediate effect. *unless used for 5 years before the FTA comes into force.
Parmesan Cheese* Immediate effect. * unless used for 5 years before the FTA comes into force.
Prosciutto di parma Meats Immediate effect. Traders can continue to use 'Prosciutto' on its own.
Kalamata Oil Immediate effect.
Port Wine

To be phased out within 9 years.

Sherry Wine To be phased out within 5 years.
Cava Wine Immediate effect.
Prosecco Wine To be phased out within 5 years.
Grappa Wine To be phased out within 5 years.

Some traders will need to dream up replacement brand names, and it’s worth bearing in mind that choosing Te Reo words is not necessarily the easiest or most appropriate approach.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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