Tizard Judith: Geographical Indications (Wine and Spirits)  Registration Bill — First Reading 
Tizard Judith: Geographical Indications (Wine and Spirits)  Registration Bill — First Reading 
[Volume:628;Page:1028] 
Hon JUDITH TIZARD (Associate Minister of Commerce) 
: 
 I move  
That the Geographical Indications (Wine and Spirits) Registration Bill be now read a first time. 
 At the appropriate time I intend to move that the bill be referred to the Foreign Affairs Defence and Trade Committee for its consideration. 
The bill repeals and replaces the Geographical Indications Act 1994. The Act was passed in response to obligations arising from the World Trade Organization Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). The Act established a registration system for the protection of geographical indications and accorded a level of protection consistent under the TRIPs agreement. However the Act has never been brought into force in part because there was no strong interest in New Zealand and in part because other developments internationally did not eventuate. This has resulted in the 1994 Act being out of date. The purpose of the bill then is to put in place a modern efficient and cost-effective process for the registration of geographical indications of wines and spirits which both serves the purposes of our industries and meets our obligations under the TRIPs agreement. 
The geographical indications as defined by the World Trade Organization TRIPs agreement indicate that a good originates from a place where a certain quality reputation or some other characteristic is essentially attributable to its geographical origin. The most obvious example is champagne. In New Zealand over recent years regions such as Marlborough Martinborough Hawke’s Bay and Central Otago have also become synonymous with great wine production. For producers geographical indications can be a helpful marketing tool along with trademarks in the promotion of products. They support regional efforts for establishing and developing both a geographical branch and excellence. A geographical indication can help consumers to make informed choices about the products they are buying. Over the past decade New Zealand’s reputation as a producer of great wine has gone from strength to strength. Our sauvignon blanc is regarded as the finest in the world. We may well need to move to protect Hawke’s Bay or Marlborough’s sauvignon blanc for example against producers passing it off as theirs in other places around the world. 
The bill reaffirms New Zealand’s commitment to providing a strong intellectual property regime that offers clarity for users and fully complies with New Zealand’s obligations internationally. The TRIPs agreement establishes minimum standards for the protection of intellectual property rights including geographical indications which World Trade Organization members are required to provide. But we do have flexibility on how we choose to give effect to those obligations. The bill will provide a clearer more coherent framework for honouring New Zealand’s international obligations. At present we implement our TRIPs obligations via the Fair Trading Act 1986 and the tort of passing off. This has necessitated legal action in order to clarify the status of geographical indication—for example in the champagne case. By establishing a register for geographical indications the bill will provide a less costly method of establishing legal certainty as to the status of geographical terms. 
The bill contains a new definition of geographical indication to ensure that only those places that meet the standards of the TRIPs agreement are able to register under the Act. This means that a registered geographical indication needs to be able to indicate that a good is originating from a particular area where a particular quality reputation or other characteristic of the good can be attributable to its geographical indication. 
The bill limits registration to geographical indications for wines and spirits only. The TRIPs agreement accords two levels of protection for geographical indications: a standard level which applies to all goods and requires Governments to provide measures to prevent the misleading or confusing use of geographical indication; and a higher level which applies only to wines and spirits. This requires us to provide measures to prevent the use of a geographical indication on a wine or spirit that does not originate from the area indicated. The prohibition applies regardless of whether the use misleads or confuses as to the origin of the product. 
The protection accorded to registered geographical indications by the bill is consistent with this higher level of protection for wines and spirits. A person who uses that indication on a wine or spirit that does not originate from the geographical area indicated will be deemed to have contravened section 9 of the Fair Trading Act 1986 and the provisions of that Act will apply accordingly. However registration will not be compulsory. Unregistered geographical indications for all products—wines spirits and others—will continue to be protected through the Fair Trading Act 1986 and through the common-law tort of passing off. 
The TRIPs agreement establishes a balance of rights and obligations for the protection of geographical indications. This balance includes limitations and exceptions for geographical indication protection. The bill incorporates all of the limitations and exceptions to protection provided for by the TRIPs agreement—for example the protection is not to be afforded to terms that are considered generic in the New Zealand market nor will the bill influence the way in which common descriptive terms are used in the New Zealand market. Similarly the bill also clarifies the relationship between trademarks and geographical indications consistent with the New Zealand position internationally on those issues. 
The bill implements a first-in-line first-in-right principle for determining which right has priority. A later-filed geographical indication will in most instances be prevented from registration by an earlier-filed trademark and vice versa. In very limited circumstance the bill allows for the potential of a later-filed geographical indication to be considered despite a pre-existing trademark having priority. 
Homonymous geographical indications refer to geographical indications that are identical in name but relate to different geographical areas. Provided that both are legitimate the bill allows for the possibility of registration for both geographical indications. Conditions may be imposed on the registration to ensure that the use of both terms does not lead to confusion in the market place. As registration is not compulsory the bill introduces an exception to protect unregistered homonymous geographical indications to be used in the event that someone subsequently registers the geographical indication. 
More generally the Geographical Indications (Wine and Spirits) Registration Bill represents a comprehensive reform of key aspects of New Zealand’s intellectual property regime. It forms part of a wider reform process to ensure that our intellectual property legislation is up to date taking into account international developments. The wider process includes the updated Trade Marks Act 2002 and reviews an updating of the Patents Act 1953 the Plant Variety Rights Act 1987 and the Copyright Act 1994. 
Geographical indications are an important aspect of New Zealand’s intellectual property rights framework. The bill will assist our burgeoning wine industry by ensuring that a modern efficient and cost-effective registration process is in place for geographical indications of our wines and spirits. A registration system will provide legal certainty for producers without stifling the innovation that has marked the rise of the New Zealand wine industry. The bill does not make registration compulsory. Existing legal mechanisms will continue to apply and the bill will also help consumers to make informed choices. 
The bill will provide a clearer and more coherent framework for honouring New Zealand’s international obligations. It considers the changes that have taken place in the international context since the 1994 Act was passed and puts in place measures that ensure the continuing use of terms in common use in New Zealand.