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Geographical Indications in the UK post Brexit

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05/10/2020

The end of the transition period is fast approaching and producers should be aware of the new rules that will come into force from 1 January 2021 surrounding the protection of GIs within the UK. Alan Harper, Director in the Intellectual Property Team at Walker Morris provides a helpful overview of the current position.

What is a Geographical Indication?

The description of a geographical indication (GI) as provided by the World Intellectual Property Organization (WIPO) is that it is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to being produced in that origin. Traditionally this protection is applied for in the food, drink and agricultural sectors – well-known examples include, Scotch Whisky and Cornish Pasties. It means, for example, Whisky could not be sold using the word ‘Scotch’ unless it originated from Scotland and was produced in a certain way.

What does a Geographical Indication do?

GI’s protect products against misuse or imitation of the registered name and guarantee the true geographical origin of the products to customers.  A GI may be used by producers in a certain geographical area and they are afforded collective rights over the product, as long as certain requirements are met. At present, the names of products meeting the GI criteria are protected under the EU schemes, these schemes include:

  • Protected designations of origin (PDO) for agricultural products and foodstuffs, and wines;
  • Protected geographical indications (PGI) for agricultural products and foodstuffs and wines; and
  • Geographical indications (GI) for spirit drinks and aromatised wines.

The UK is set to establish its own GI schemes following from the end of the transition period on 31 December 2020. The UK scheme will adhere to obligations imposed by the World Trade Organisation (WTO) and ultimately be managed by the Department for Environment, Food and Rural Affairs (Defra), including the processing of new applications and maintaining the register of protected product names.  The new UK scheme is set to use the following designations:

  • Protected Designation of Origin (PDO);
  • Protected Geographical Indication (PGI); and
  • Traditionally Speciality Guaranteed (TSG).

Despite the UK’s departure from the EU, all existing UK products registered under EU GI schemes will remain protected in the UK under the UK GI schemes. It is anticipated that the EU will reach agreement for all currently registered UK GIs to remain protected under the EU GI scheme. Should agreement not be reached to this effect, UK producers can submit new applications as ‘third-country’ producers to gain this protection within the EU. This application process will be aided by the UK Government by the provision of evidence that a GI is already protected in the UK.

Ireland is slightly different from the rest of the UK and has cross border GIs which relate to goods that can be produced anywhere on the island of Ireland and include:

  • Irish Whiskey
  • Irish Cream
  • Irish Poteen

Following Brexit the above GIs will continue to be fully protected in the UK and the EU.

What about GIs in the Future?

GIs have been in the spotlight recently as they are a key element of the recently announced free trade deal between the UK and Japan. Under the outline terms of the deal, there will be new protection in Japan for more iconic UK goods – increasing the number of GIs from just seven under the terms of the EU-Japan deal to potentially over 70 under the new agreement. As an example of those goods which are covered, the outline covers Yorkshire Wensleydale, Scottish salmon, beef and lamb and Welsh lamb, Conwy mussels and Anglesey sea salt. The DIT believes that this would lead to improved recognition of key UK brands in the Japanese market resulting in them being more attractive and desirable to customers in Japan.

Practical Suggestions:
  • The end of the transition period is fast approaching and producers should be aware of the new rules that will come into force from 1 January 2021 surrounding the protection of GIs within the UK. From 1 January 2021, GB producers seeking to apply for protection of a new product name in Great Britain must apply to the UK scheme. Once secured, producers can then apply to the EU scheme to obtain protection within the whole of the island of Ireland and the EU. Application guidance is set to be published by Defra following the end of the transition period.
  • Producers in Northern Ireland should be aware that Northern Ireland will not have its own national GI scheme as they will be protected in the EU and Northern Ireland under the EU GI schemes. They will also be able to apply for protection under the UK schemes, but they need not have already secured protection under the EU schemes to do so.
  • Producers and retailers of food and agricultural GI products currently for sale in Great Britain should also consider the changes that will come into force after the end of the transition period relating to the use of UK GI logos. New logos will be required to be used from 1 January 2021 for such products registered after the transition period. Producers and retailers of such existing GI products will have until 1 January 2024 to make changes to incorporate the new UK GI logos on all packaging and marketing materials. There will be three UK GI logos in operation which will mark the UK designations, as set out above, the logos are available for download from the UK Government website.
  • It will be mandatory for producers and retailers of food and agricultural GI products in Northern Ireland to continue use of the EU logos when the product is being sold in Europe and Northern Ireland and is registered under the EU GI schemes. It is however optional as to whether the new UK GI logos are used if the product is registered under the UK GI schemes.
  • After the transition period, GI products protected in the EU can continue to use the EU logo in the UK and the logos will remain wholly optional for producers of wine and spirit GIs.
  • Further guidance from Defra regarding the end of the transition period and the upcoming changes to GIs can be found here. Additional and updated guidance may be issued in the coming months depending on the precise terms upon which the UK departs from the EU, stakeholders are therefore advised to keep monitoring the Government guidance for any updates.
  • The recently agreed UK- Japan trade deal offers reduced barriers to entry to the Japanese market by UK brands through a tariff free quota and increased geographical indications, GB producers could benefit from the increased access and it would be prudent for such producers to take note of the full scope of the agreement once it is published.

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