(Un)Protected Geographical Indications?
As Brexit looms ever closer and the risk of leaving the EU without a deal increases by the day, we consider the implications of a perhaps lesser known form of intellectual property – geographical indications.
Thrown into focus by a recent comment by Boris Johnson as to the perceived wisdom of selling Melton Mowbray Pork Pies to the US post-Brexit, the potential loss of the ability to protect products from misuse or imitation of their origin or other characteristics at an EU level is one that may well be keenly felt by producers in the UK.
A PGI (Protected Geographical Indication), like a PDO (Protected Designation of Origin) is a sign used to identify products with links to a specific geographic region. Both PGIs and PDOs prevent producers from making and marketing products using the PGI or PDO, where their requirements are not met. A PDO describes foods that are produced, processed and prepared in a given geographical area, utilising recognised techniques, whereas a PGI is indicative of a link with the geographical area in question, through preparation, processing or production stage.
PGIs after Brexit
“Melton Mowbray Pork Pie” is registered at the European Commission as a PGI. Therefore, if Britain leaves the EU without a deal, the PGI may no longer be enforceable across Europe.
In anticipation of this, UK legislators have developed a new scheme which mirrors that currently operating in the EU. The scheme will automatically protect PGIs and PDOs which are still valid at the end of the Brexit transition period, without need for re-examination.
However, the proposed system is less comprehensive in that it will not stop anyone from marketing products under the protected name within the EU – the PGI/PDO protected by the UK system will, by its nature, be limited jurisdictionally to the UK.
Therefore, manufacturers in the EU will be able to produce and market products under what used to be an EU PGI/PDO but with little or no regard for the characteristics of the product upon which its reputation is based. Such producers will be able to capitalise on the goodwill generated by the sales in the bloc of PGI/PDO products in years gone by.
This could mean a massive potential loss of revenue for the UK. Melton Mowbray Pork Pies brought around £50million into the UK in 2016 alone. The loss of PGI protection, coupled with the tariffs that will likely apply to any exports to the EU post Brexit, has the potential to be costly.
However, there is a glimmer of hope (in relation to PGIs, not the tariffs). Whilst the existing UK PGIs/PDOs registered at the European Commission may cease to be enforceable when we leave the EU, it will be possible to apply to the European Commission to regain the EU protection and also the right to use the EU GI logo.
What the Commission’s attitude to such applications will be does, of course, remain to be seen. We therefore anticipate that the uncertainty and the additional costs are unlikely to be welcomed by UK businesses.
Current Prime Minister, Boris Johnson, sees this as an opportunity to expand the market of the pie and is keen to establish a trade deal between the UK and US.
However, while the American system utilises GIs, they are much more limited than they are in the EU. The US system does not protect names that it considers ‘generic’ in that they describe categories of goods rather than indicating the origin of the product. For example, Mozzarella is protected under the EU system, but does not enjoy protection in the US.
Therefore, if we open our market more to US trade, we may find that the US consider that products which have historically enjoyed protection through PGI/PDOs are too generic, thereby enabling US manufacturers making and marketing products themselves and using the PGI/PDO.
Matthew O’Callaghan, Chairman of the Melton Mowbray Pork Pie Association emphasised the importance of GI protection, stating that:
“we want trade opened up but only on the basis the pie is protected. We don’t want a deal and to then suddenly find American companies producing it.”
Kristina Ford is a Trainee Solicitor at Nelsons.
If you would like any advice in relation to the subjects discussed in this article, please contact Kristina or another member of our Intellectual Property team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.