On 4 October 2018, The Department for the Environment, Food and Rural Affairs (DEFRA) opened a consultation on ‘Establishing a UK Geographical Indications (GI) scheme’ post-Brexit. The consultation sought feedback on the proposed UK Scheme but did not invite substantial changes to the proposed scheme which will not change substantially from the existing EU Scheme.
Geographical Indications (GIs) are a form of Intellectual Property granted to products with a specific geographical origin having been either produced, processed and/or prepared in a specific region and/or by using specific know-how. Notable examples produced within the UK are the Cornish Pasty, Scotch Whisky and Jersey Royal Potatoes.
These products can be of enormous value to economies such as the UK. Earlier in the year, HM Revenue and Customs reported that exports of Scotch Whisky generated overseas sales of £4.36bn. Poor imitations could harm not only the cultural value of these products, but also reduce revenue streams. Champagne is after all not just any old sparkling wine.
The current system
The current EU system (regulated by EU Regulation No.1151/2012) for registering and protecting such products against imitation and misuse throughout the EU, ensures EU countries comply with international regulation (specifically, the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)). GIs can be obtained for agricultural products and foodstuffs, wines, spirits and aromatised wines. EU-recognised GIs are enforced in every EU Member State and in third countries through trade agreements.
To obtain a GI in the EU, an application is made and considered within an EU Member State, which must also review any opposition before sending the application to the European Commission for further scrutiny. Once satisfied the Commission will, subject to any amendments, grant a GI. Once granted, those products must carry the appropriate GI logo; in the case of agricultural and food products, carrying the logo is mandatory whereas for wine, aromatised wine and spirits, carrying the logo is optional.
Non-EU Member States can also apply to the EU for a GI provided certain conditions are met; including the mutual protection of such products via trade agreements.
New UK GI scheme
The current proposal is that when the UK leaves the EU it will set up its own GI scheme which will broadly mirror the current EU regime, and introduce a new UK GI Logo and appeals process
To obtain a UK GI under the new scheme, applications will be made within the UK to the relevant UK authority. The UK authority will then approve or reject applications and enter successful applications onto a publically accessible register of recognised UK GI products. UK products currently registered under the EU GI schemes would receive automatic protection under the new UK scheme.
At present it is anticipated that UK products registered under the EU Scheme will continue to be recognised by the EU post-Brexit. In the event they are not, and should future UK applicants wish to register their GIs in the EU, they can apply direct to the EU as ‘third country producers’ once registered in the UK.
It is proposed that the UK Scheme will have its own logos to replace the EU logos. The rules regarding the use of the UK logos will mirror those for the use of the EU Logos. In recognition of the costs producers will incur to switch to the new UK Logos, a 3-year ‘adoption period’ is proposed to reduce the cost burden for businesses.
For those who wish to appeal decisions made by the relevant UK authority in relation to the grant of UK GIs, the proposal is for appeals to be dealt with by a first-tier tribunal.
A fee, yet to be decided, will be payable for making an application for either UK or EU GIs.
The consultation invites stakeholders, i.e. current and future GI rights holders, to provide views on the introduction of the UK’s GIs scheme post-Brexit.
The consultation is asking for input on what the UK GI logos should represent and how this can be reflected in the design, whether the 3-year ‘adoption period’ is long enough and whether the proposed appeals process is suitable.
The consultation closed on 1 November 2018 and a response will be published within 12 weeks of the consultation closing.
The UK scheme will echo the current system under the EU. It is hoped that UK GIs will continue to be recognised by the EU post-Brexit, but if not UK GI holders will have to apply to the EU, at an additional cost, for GI recognition in the EU. The UK Government has stated that it is working with its global trading partners to try to accommodate the protection of UK GIs in third countries.