In September 2020, the Australian government opened a public consultation on a possible new Geographical Indications (GI) right that could provide GI protection to goods other than wines and spirits.
The consultation sought industry, business and community views on “the type of system changes that may be considered in the event a negotiated outcome” with the European Union (EU), in relation to the Australia-European Union Free Trade Agreement (A-EUFTA), gives rise to changes in the way Australia currently protects GIs. In its consultation paper, the Australian government disclosed that a new GI right could be introduced as a new “Part in the Trade Marks Act 1995 and be administered by IP Australia… and could protect both Australian and international GIs,” including any EU GIs agreed under the A-EUFTA. The public consultation closed on 30 November 2020.
The Australian Department of Foreign Affairs and Trade (DFAT) and IP Australia facilitated a course of roundtable discussions during the course of the public consultation period. At each roundtable, DFAT and IP Australia facilitators underscored that nothing in the consultation process “means that the Australian government has agreed, or will agree, to make any changes to its existing GI regulatory framework or policy” and that only views were being sought from participants on policy considerations for a possible new GI right: https://consultation.ipaustralia.gov.au/policy/geographical-indications/user_uploads/virtual-roundtable-paper—standard-of-protection-5.pdf
The policy considerations addressed in the roundtables included what the standard of protection offered by a new Australian GI right should be and what should a GI right be able to prevent others from doing? Discussions focused on whether a possible new GI right should apply the same standard for all goods, including food products, as currently provided to the protection for wine and GI spirits. This prevents ‘any use’ of a GI on wine or spirit products not originating in the place indicated, even if the true origin is indicated. Views on whether there were any other uses of a GI that should be protected were obtained from participants, as well as whether there was a way for Australia to provide protection for translations of GIs while still providing certainty as to what terms could and could not be used. Furthermore, participants’ views were gathered on what they would like a possible new GI right to achieve and whether they thought Australian producers and consumers could benefit from a new GI right. IP Australia emphasised that design objectives of a possible new Australian GI right included minimising cost to Australian consumers, facilitating Australian producers registering GIs overseas and ensuring that a new GI system is simple to navigate.
The general operations of a possible new GI system were also addressed, including what evidence should be required to file a GI application. For example, participants deliberated about what it means for a product to ‘originate’ in a region. Some of the discussions focused on how a product might be connected to a region and the evidence that would be required to prove that connection existed before an application could be made for GI registration. Moreover, views were sought about who could enforce a possible GI right and under what circumstances a prior trade mark could prevent registration of a GI. Views were also obtained on how a GI could protect authentic Indigenous products, including bushfoods grown in a particular area or locality and arts and crafts with a close connection with country, protecting a local image or identifier. Particular attention was given to how a GI might apply where more than one Indigenous community shares knowledge. The ability to define a GI boundary and use homonymous GIs were possible options discussed to cater for instances of shared knowledge across various Indigenous communities.
As the consultation period has now ended, IP Australia is in the process of drafting and publishing a response to the consultation. Any non-confidential submissions made during the consultation period will shortly be made available on the IP Australia website. The Australian government “will also consult on any draft legislation for GIs at a later date, should a decision be made to progress GI reform to that stage in Australia.” We look forward to knowing the outcome of the consultation and developing a possible new GI right for Australia that could provide GI protection to goods other than wines and spirits.
