Geographical Indicators ("GIs") are an established way of ensuring that only goods which come from a specific geographical region can use the relevant name. An example of a widely used GI is "Champagne", which identifies a type of sparkling wine that is exclusively produced in the Champagne region of France. While Champagne has been protected as a GI since 2021 in New Zealand, other GIs are about to join the fold with recent legislative changes.
The news of products changing names has begun to get media attention, but with changes to which GIs are now protected being so recent there are still a lot of unknowns and confusion about what is going on. So, we will be writing a series of articles to help shed some light on GIs in New Zealand.
Why some products are getting a makeover
Through the EU-NZ Free Trade Agreement (the Agreement), nearly 2,000 GIs from the EU have been automatically recognised in New Zealand, including "Feta" as specifically reserved for cheese produced in particular regions of Greece. Local producers who currently use the term have nine years, beginning from 1 May 2024, to phase out the term and some businesses have already begun the process with Woolworths announcing its new "crumbly cheese". During this transitional phase, businesses using "Feta" will also need to indicate the geographical origin of the cheese. Cheese produced in New Zealand and marketed as "Feta", must clearly indicate that it was produced in New Zealand.
It is worth noting that, unlike some other cheese terms where prior users may be protected by what are called grandfathering clauses, “Feta” does not have such a provision in New Zealand. As a result, local producers have a timeline to adapt, after which time only cheese originating from the designated Greek regions can lawfully be labelled “Feta” in New Zealand.
What this means for anyone in breach of the Agreement
One method to maintain the integrity of registered GIs is to empower any interested party (such as, in the case of "Feta", Greek producers) to take civil proceedings in the High Court. If a producer in New Zealand labels or markets cheese as “Feta” after the phase-out period ends – and that cheese was not made in the permitted Greek regions – interested parties may seek an injunction to stop the infringement, claim damages and/or secure orders for the disposal of offending goods or marketing material. In addition to breaches specifically from the Agreement, action could also be taken under consumer protection legislation such as the Fair Trading Act 1986 or under common law (passing off).
Enforcement is not limited to civil legal action. The Ministry for Primary Industries (MPI) plays an important role by investigating complaints of GI misuse. An interested party can report the misuse to MPI who will review the complaint and may assign it to a GI officer for investigation. Depending on the outcome of the investigation, the officer may require the user to take actions such as ceasing use of the GI. Where failure to comply with such a notice occurs, MPI may issue an infringement notice, with penalties ranging from $400 to $800 and potential court action for failure to pay these penalties.
With the new rules now in place, there’s never been a "feta" time to ensure your compliance and our next articles will continue our journey exploring GIs in New Zealand. If you would like more information or to chat, please contact one of our team.
Co-authored by Sophie Thoreau (special counsel), Amy Irvine (solicitor) and Jasmine Pinfold (law clerk).
