Insight
The concern about the naming of foods is currently in the Australian news, as it has been raised as a possible stumbling-block in negotiations between the European Union and Australia for a free trade agreement between them.
Specifically, the EU is concerned about Australian traders using “geographical indications” and “designations of origin” that are protected in the EU, but are used generically and without any restriction in Australia.
Geographical indications and designations of origin are distinctive signs used to identify a product as originating in the territory of a particular country, region or locality where its quality, reputation or other characteristic is linked to its origin.
In return for the EU opening-up its markets to Australian food producers, the EU insists that Australian producers cease using these protected names.
Geographical indications and designations of origin are distinctive signs used to identify a product as originating in the territory of a particular country, region or locality where its quality, reputation or other characteristic is linked to its origin.
These names create value for local communities and promote rural socio-economic development. Examples include Feta cheese, Parmesan cheese and Prosciutto ham. Therefore, in the EU, the term Feta cheese can only be used for cheese produced in Greece using a blend of sheep and goat's milk and in accordance with other criteria.
Yet many cheeses sold as “feta” in Australia are Australian-made or made only of cow’s milk. If the EU is successful in its negotiations, Australia will need to enact specific laws to prohibit the use of such foods names (as Australia has done for certain EU wine names). For “feta” cheese, for example, Australian cheese-makers will then need to adopt alternative terms such as white cheese, salad cheese or Greek-style cheese.
Protecting the names of foods
Currently, foreign food producers can seek to protect their foods names in Australia through the Certification Trade Mark system. For example, Certification trade mark registrations have been granted in Australia for Stilton cheese, Darjeeling tea and Parma ham. However, Certification registration is costly and complex, and needs to be sought and examined on a case-by-case basis.
A recent decision of the Australian Trade Marks Office considered the cheese name ‘Asiago’, a term that is a protected designation of origin in the EU, as a cow’s milk cheese made around the Asiago Plateau region in Italy in accordance with specific criteria.
A US cheese-maker had sought to register the trade mark SARTORI ASIAGO for cheese, and the application was opposed by an Italian association of Asiago cheese-makers.
The Italian association argued that use of the ASIAGO element in the trade mark would cause confusion in the marketplace, by falsely suggesting an association with the Italian region or with the genuine cheeses from that region.
The decision maker found against the Italian association on the basis that, in Australia, the evidence showed that the term Asiago had been used so openly that consumers considered the term to be descriptive for a particular type of cheese.
The Australian Trade Marks Office decision confirms the importance to European food producers for specific laws to protect food names in Australia.
