This technical note accompanies “What are geographical indications?”
“If Americans are confused about Gruyère cheese, blame the French”
and “Will ‘Melton Mowbray’ stay protected in the EU?”
By Peter Ungphakorn
POSTED JANUARY 10, 2020 | UPDATED JANUARY 11, 2020
The UK’s agreements with the EU create obligations to rollover protection for geographical indications in the EU into the British system. Some names have to be protected; some don’t. This is based on the two methods the EU uses.
Geographical indications — place names or names associated with places used to identify the origin, characteristics and quality of products — are protected in the EU, either:
- by registration, or
- under a bilateral agreement (a free trade agreement or a deal specifically on geographical indications, usually for wines and spirits)
Protection of origin
Under the Brexit Withdrawal Agreement, Britain has promised to continue to protect all names registered in the European Union at the end of the Brexit transition, no matter where the products come from — whether from inside or outside the EU.
JUMP TO
• Protection of origin
• Origin of protection
• ‘They are not protected as GIs’
• US spirits: Bourbon and Tennessee
• US wines
But Britain is not obliged to protect names protected in the EU via bilateral agreements.
The post-transition EU-UK agreement confirms this. It simply leaves open the possibility of future negotiations on agreed rules.
The European Union has agreements on geographical indications with other countries, either as part of broader free trade deals or separately.
To help trade with non-EU countries continue with as little interruption as possible after Brexit, Britain has rolled the EU’s free trade agreements over into its own. Some of these continuity deals include geographical indications (such as the agreements with Vietnam and Japan); some don’t.
Britain has also signed continuity agreements specifically on geographical indications, particularly for wines and spirits, including with the US (below), Australia and Mexico.
Unlike the European Union’s system, the new British scheme does not distinguish between names protected via registration or bilateral agreement. They are all registered, and all from the end of the Brexit transition, December 31, 2020 at 23:00 UK time, until new registrations are approved.
This can be seen in the UK’s database of geographical indications.
Origin of protection
The database shows where each British registration comes from: either registration in the EU or a bilateral deal between the non-EU country and the UK, sometimes both.
Take US names (although something strange is going on here too). The British database lists 767 US wines and spirits names registered for protection as “American viticultural areas and US spirit drink names of origin”.
For Napa Valley wine the basis for protection is “EU agreement”, meaning the Brexit Withdrawal Agreement and UK-EU post-Brexit deal. Napa Valley is registered in the EU, so the UK is obliged to register it too. The entry in the database includes the registration date in the EU and adds: “Also protected under the UK/United States of America Agreement on Trade in Wine”, signed in January 2019, presented to Parliament but apparently not in force yet:
Registered name: Napa Valley
Register: Wines
Status: Registered
Class or category of product: Wine
Protection type: Protected Designation of Origin (PDO)
Country of origin: United States
Date of registration (UK scheme): 31 December 2020
Time of registration (UK scheme): 23:00
Date of original registration with the EU: 10 May 2007
Reason for protection: EU agreement
But for Bourbon the reason for protection is “UK trade agreement”, explained as “the UK-United States of America agreement on the Mutual Recognition of certain distilled Spirits/Spirit Drinks”, also signed in January 2019, presented to Parliament but also apparently not in force yet:
Registered name: Bourbon whisky/Bourbon whiskey/Bourbon
Register: American viticultural areas and US spirit drink names of origin
Status: Registered
Class or category of product: Spirit drink
Protection type: US Spirit Drink
Country of origin: United States
Date of registration (UK scheme): 31 December 2020
Time of registration (UK scheme): 23:00
Reason for protection: UK trade agreement
Bourbon has been protected in the European Union since 1994 but under a bilateral agreement and therefore with no obligation on Britain under UK-EU agreements.
Or take the case of Vietnam. Buôn Ma Thuột coffee is registered in the UK because of the UK-Viet Nam trade agreement:
Registered name: Buôn Ma Thuột
Register: Foods: designated origin and geographical indication
Status: Registered
Class or category of product: 1.8 Other products of Annex I of the Treaty (spices etc.)
Protection type: Protected Geographical Indication (PGI)
Country of origin: Vietnam
Date of registration (UK scheme): 31 December 2020
Time of registration (UK scheme): 23:00
Reason for protection: UK trade agreement
What about New Zealand wine? They are not protected in the European Union either by registration or agreement, and there is no bilateral UK-New Zealand agreement.
‘They are not protected as GIs’
Meanwhile, according to the UK, American names are a special case. The government website has this intriguing clarification:
“The UK has agreed with the USA to protect certain wines and spirit drinks names in the UK. Whilst they are not protected as geographical indications (GI), the UK will protect use of the relevant product name for these USA-origin goods.
“USA wines: over 700 wines names are protected as an American Viticultural Area (AVA) which describes their origin as a specific grape-growing region. The wines carry an AVA label.
“USA spirit drinks: Bourbon Whiskey and Tennessee Whiskey (and spelling variations) are the 2 protected spirit drinks names.”
Whatever that note says, some wines such as Napa Valley, are fully registered protected designations of origin (PDO), which include standard requirements for geographical indications — the products’ “quality and distinctive characteristics”, in addition to their origin.
The majority of names are not PDOs or similar, and this raises two questions.
First, if the names are not geographical indications, under British law what are they? Normally the alternatives are trademarks or certification marks but it seems they are not those either. Here it simply seems to be a labelling requirement.
Second, Bourbon and Tennessee whiskeys and close to 700 US wines are protected in the European Union as geographical indications, but it seems not in Britain. Why the difference? Why has the UK chosen to exclude them from being geographical indications?
It seems likely (but unconfirmed) that the demand came from the US, which is generally averse to geographical indications. And Britain concurred.
US spirits: Bourbon and Tennessee
The UK-Mexico agreement clearly treats names like Tequila and Scotch as geographical indications by referring to specific provisions in WTO intellectual property rules. The two agreements with the US do not.
US industry has found alternative ways to get around American aversion to geographical indications.
For Bourbon, in 1963/64 the US Congress declared it to be a protected “distinctive product of the United States”, specifically in response to Scotch and Canadian whiskies.
The geographical requirement for Bourbon is to be produced anywhere in the US. Tennessee whiskey is a Bourbon, but only if it’s a “a straight Bourbon whiskey produced in the State of Tennessee” along with some conditions on how it’s produced.
The “distinctive product” description might look like a geographical indication by another name, but under international trade law they are not the same. Geographical indications are a type of intellectual property. Any other labelling comes under “technical barriers to trade”.
The legal basis for protecting Bourbon and Tennessee whiskeys in Britain is footnoted in the agreement with the US on spirits. This simply refers to EU regulations incorporated into UK law by the 2018 Withdrawal Act, and the 2008 UK Spirit Drinks Regulation.
In other words, under the “mutual recognition” agreement with the US, Britain recognises the standards set in the US for using the two names on labels, which includes production methods and geographical origin.
US wines
For wines, the US names are protected as “American Viticultural Areas (AVAs)”. The criteria for recognition is purely as a distinctive geographical area where grapes are grown (or for chapter and verse here’s the law).
“Federal law requires that 75 percent or more of grapes used to make the wine be from that appellation, and that the wine be fully finished within the state in which the county is located,” the US Wine Institute says.
The Viticultural Area can then be used as a label of origin.
But geographical indications are more than origin. The WTO intellectual property agreement’s definition includes: “a given quality, reputation or other characteristic of the good […] essentially attributable to its geographical origin.”
The intellectual property component is the production techniques — including selection of grape varieties for wine — that deliver the quality, reputation and characteristics of the product.
Even though the American Viticultural Area labels do not include production techniques, the EU has accepted them as geographical indications in the European Union — allowed but not required under its agreement with the US — presumably in return for the US protecting EU names.
Like the British-US agreement on spirits, the one on wines is also called “mutual recognition”. In it, each of the two countries recognises each other’s standards, certification and labelling requirements as equivalent to its own.
The text includes lists of names to be protected. But it leaves open the question of whether the names are geographical indications, in Article 10.5 (copied more or less straight out of Article 12.4 of the US agreement with the European Union):
“Article 5 [on the lists of ‘Names of Origin’] shall not be construed in and of itself as defining intellectual property or as obligating the Parties to confer or recognise any intellectual property rights. Consequently, the names listed in Annex III [US wine names] are not necessarily considered, nor excluded from being considered, geographical indications under US law, and the names listed in Annex IV [British wine names] are not necessarily considered, nor excluded from being considered, geographical indications under UK law.”
Unlike the EU, Britain has chosen to exclude the names from being considered geographical indications under UK law.
I have tried and failed to find the regulations that underpin that.
This page on labelling imported wine by the Food Standards Agency simply says: “The main requirements for different categories of wine are set out in Labelling of Wines from Third Countries 2020”, but there is no link and various searches for “Labelling of Wines from Third Countries 2020” produced no results.
● See also “If Americans are confused about Gruyère cheese, blame the French”
Thanks: to Martin Bell (@TheEmbraExpress) of the Scotch Whisky Association for the tip on Bourbon being declared a distinctive product of the US
Updates
January 23, 2021 — adding link to the post on Gruyère in the US
January 11, 2021 — adding the paragraphs on the treatment of US spirits and wines, including “distinctive product of the US”, “American Viticultural Area” and discussion of whether these qualify as geographical indications
Image credits
● Buôn Ma Thuột coffee — by DXLINH, Wikimedia, CC BY-SA 3.0
● Images used in AVA montage — Cabernet Sauvignon and Chardonnay by Agne27, Wikimedia, CC BY-SA 3.0 | L’Ecole by Foodista, Wikimedia, CC BY 2.0 | Vineyard by Mitchell Raman, Pixabay, CC0. Information from Wine Folly
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