Intellectual property
A geographical indication, or GI, identifies a good as originating in a specific territory, region or locality where a particular quality, reputation or other characteristic is essentially attributable to its geographical origin.
GIs can be protected in Australia through either a registered GI (which is only available for wines) or a registered certification trade mark which may function as a GI. Currently, there is no dedicated standalone GI registration for non-wine agricultural (food and beverage) products. Other mechanisms under Australian law, such as passing off, may also be used to protect GI terms.
Registering a GI in Australia
There are two ways of registering a geographical indication (GI) in Australia:
- Certification trade marks, administered by IP Australia, can function as a GI to provide protection for any goods.
- GIs for wines, administered by Wine Australia, can be protected through a separate system dedicated to wine.
Certification trade marks as a GI
Certification trade marks indicate goods or services that meet certain standards, for example of quality, composition or geographical origin. The use of a certification trade mark as a GI indicates to consumers that a product comes from a specific geographical region and therefore can indicate that it has a distinctive set of qualities or reputation attributable to that region.
Applications for certification trade marks are examined by IP Australia. It is important to carefully consider who is best placed to own the GI. While it can be owned by any legal entity, the owner will have the responsibility to manage and enforce the GI.
Each certification trade mark application must be accompanied by a set of rules that define the geographical location your GI covers and a number of other requirements for production or quality standards that must be met for someone to use the GI. IP Australia provides the rules to the Australian Competition and Consumer Commission (ACCC) - the government body responsible for regulating competition and protecting consumers. The ACCC then assess the rules to ensure they meet the legal requirements, won't cause harm to the public, and won't break the law on competition and consumer rights.
Other stakeholders can provide feedback before the ACCC make a final assessment. If the certification trade mark is approved by IP Australia for registration, third parties are able to object to the registration, including on the basis of prior use or that the trade mark is not able to distinguish the covered goods or services from the goods or services of other persons.
Examples of foreign GIs currently protected by registered Australian certification trade marks include 'Stilton' for cheese from the UK, 'Darjeeling' for tea from India, and 'Parma' for pig meat from Italy.
GIs for wines
Wine Australia administer a registration system for wine GIs through the Register of Protected Geographical Indications and Other Terms (the Register). Winemakers, grape-growers and industry associations from anywhere in the world can apply to Wine Australia to have GIs registered and protected.
Applications to register a GI are assessed by Wine Australia's Geographical Indications Committee. Before an Australian wine GI is registered, a range of factors are considered, including the boundary of the GI and the conditions of use. For international GIs, the committee identifies the boundary of the GI and conditions of use that are applicable after considering whether the GI is protected by the laws of the country where the GI is located.
As with certification trade marks, the application undergoes a period of stakeholder comment where third parties can object to the inclusion of a GI on the Register. Objections can be made on the grounds of prior rights to the word(s) or that the GI is the name of a type of wine or variety of grapevine.
Over 100 Australian and more than 2,000 European wine GIs have been entered on the Register. These GIs include terms recognised through the Agreement Between Australia and the European Community on Trade in Wine. Examples of European wines included on the Register include 'Bordeaux', 'Mosel', 'Chianti' and 'Sherry'.