Tizard Judith: Geographical Indications (Wine and Spirits)  Registration Bill — Second Reading 
Tizard Judith: Geographical Indications (Wine and Spirits)  Registration Bill — Second Reading 
[Volume:633;Page:4723] 
Hon JUDITH TIZARD (Associate Minister of Commerce) 
: 
 I move  
That the Geographical Indications (Wine and Spirits) Registration Bill be now read a second time 
. I would like to thank the Foreign Affairs Defence and Trade Committee for its detailed consideration of the bill as well as all of those people and organisations that provided submissions to the committee. The committee’s consideration has resulted in a number of amendments and I consider those to be useful improvements to the bill. 
The bill repeals and replaces the Geographical Indications Act of 1994. That Act was passed following negotiation of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights known as the TRIPs agreement. The TRIPs agreement establishes minimum standards for the protection of intellectual property rights including geographical indications which World Trade Organization (WTO) members are required to provide. Member States can choose how they decide to give effect to those obligations. 
The 1994 Act on geographical indications established a registration system for the protection of geographical indications and accorded a level of protection consistent with the level provided for wine and spirit geographical indications under the TRIPs agreement. However that Act has never been brought into force. In part this was because there was no strong interest by New Zealand producers to register geographical indications at that time. They were content to rely on New Zealand’s general consumer protection laws provided under the Fair Trading Act and the tort of passing off. Through the select committee process the industry has voiced its strong support for the new legislation—and I appreciate that endorsement of the Government’s actions. 
Another reason the 1994 Act was not brought into force was that it was drafted in anticipation of further developments occurring within the context of the WTO and its negotiations around the protection of geographical indications. As it happens those developments have not eventuated and as a result the 1994 Act is now out of date. 
The purpose then of the bill is to put in place modern efficient and cost-effective processes for the registration of geographical indications for wines and spirits that serve to meet the needs of our wine and spirits industries and ensure that New Zealand continues to meet its obligations under the TRIPs agreement. This is a clearer and more coherent framework for honouring New Zealand’s international obligations. The select committee has recommended that the purpose clause of the bill should explicitly recognise the role of New Zealand’s rights and obligations under the TRIPs agreement in applying the bill. I support this recommendation of the select committee. 
At present New Zealand implements its TRIPs agreement obligations primarily as I have already said through the Fair Trading Act 1986 and the tort of passing off. In addition the Trade Marks Act 2002 enables geographical indications to be protected as certification marks and collective marks. Under the current system interested parties may take legal action to confirm their rights to a specific geographical indication as has already happened for example for Champagne. The bill will complement this existing system by providing a specific avenue for protecting geographical terms for wines and spirits in New Zealand. 
However the registration mechanism provided by the bill is voluntary and the bill does not affect existing mechanisms already in place to protect current or future geographical indications. The select committee has therefore taken on board wine industry concerns and has recommended that a new provision be added to the bill to clarify further that the bill does not affect existing mechanisms in place. I endorse this recommendation of the committee. 
The bill limits registration to geographical indications for wines and spirits alone. The TRIPs agreement accords two levels of protection for geographical indications: a minimum level applying to all goods which requires Governments to provide measures to prevent geographical indications being used to a misleading or confusing manner and a higher level that applies to wines and spirits only. The higher level requires Governments to provide measures to prevent the use of a geographical indication on a wine or spirit that does not originate from the area indicated. This prohibition applies regardless of whether any use misleads or confuses consumers as to the origin of the wine or spirit. The protection accorded to registered geographical indications by the bill is specifically tailored to meet this higher level of protection for wines and spirits only. 
The TRIPs agreement establishes a balance of rights and obligations for the protection of geographical indications. This balance includes certain 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 protection is not to be afforded to terms that are considered generic in the New Zealand market—for example vodka or gin. 
This bill contains a new definition of geographical indication to ensure that only those geographical indications for wines and spirits that meet the standards of the TRIPs agreement are able to be registered under the Act. This means that a registered geographical indication needs to be able to indicate that a wine or spirit originates from a defined area and that the particular quality reputation or other characteristic of the wine or spirit is essentially attributable to its geographical origin. The bill also contains updated and modern definitions of the terms “wine” and “spirit”. [ 
Interruption 
] I would have thought that the member for East Coast Bays or wherever he is from would be fascinated by any discussion of wines and spirits. 
In relation to what constitutes a spirit the select committee has recommended that the definition be amended to remove the word “tequila”—I am sure the member will be deeply concerned about that—which is considered to be a geographical indication by Mexico because it describes a village in Mexico. The select committee considered that the use of the term in the definition in the bill may imply that tequila is considered to be generic in New Zealand and therefore is not registrable as a geographical indication. It is not intended that this question should be prejudiced by the bill’s definition of the term “spirit”. Consideration of whether a term like “tequila” is registrable as a geographical indictor should be an issue for the registration process to determine and not necessarily for the legislation. 
Similarly the bill clarifies the relationships between trademarks and geographical indications. Consistent with New Zealand’s position internationally on this issue the bill implements a “first in time 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 circumstances the bill allows for the potential of a later filed geographical indication to be registered despite a pre-existing trademark having priority. 
Provision is made in the bill for geographical indications that are identical in name or sound but relate to different geographical areas. Provided that both geographical indications are legitimate the bill allows for the possibility of both to be registered. Conditions may be imposed on the registration to ensure that the use of both terms does not lead to confusion in the market place. For example it may be necessary to state not just the geographical indication but also the country the product is from. As registration is not compulsory the bill introduces an exception ensuring that unregistered identical geographical indications remain unaffected by the legislation. 
The select committee process has resulted in a number of amendments to the bill as introduced. Those clarify and strengthen the range of technical and operational issues. Changes to the bill as reported back include clarifying a number of clauses to ensure that the provisions are more closely aligned with the wording used in the TRIPs agreement. We have added a new clause to provide that on registration of a geographical indication the date of registration be deemed to be the date of application for registration consistent with the trademark regime. 
We have clarified that the grounds for refusal of a geographical indication include where an application to register a trademark has been made in good faith but has not yet been granted and we have clarified that a geographical indication’s scope of protection in the country of origin may include conditions as to its use. We have also clarified the definition of “bottled” to capture different types of containers used for packaging wines and spirits and have included a provision to allow the registrar to establish a committee to advise on issues regarding the removal of a geographical indication from the register. I am very happy to support those amendments and other minor and technical recommendations made by the select committee. 
I thank the Foreign Affairs Defence and Trade Committee for its work on this bill. This bill is legislation that demonstrates yet again this Government’s willingness to work with industries with business and with communities to make sure that international obligations work for New Zealanders and that New Zealanders are able to trade from the strongest position internationally. I thank the committee for the work it has done because I think it has strengthened the bill. 
This bill will assist our growing wine industry and our emerging spirits industry to ensure modern efficient and cost-effective registration processes are in place for wines and spirits in New Zealand. A registration system will provide legal certainty for producers without I hope stifling innovation. The bill does not make registration compulsory. Existing legal mechanisms within legislation and the market will continue to apply and the bill will also help consumers to make informed choices about the origins of the wines and spirits they buy. 
I apologise that this speech has been somewhat technical and obviously a little too much for the Opposition but given that it is necessary to be very precise in this area I hope that those members will take it as seriously as I know the wine industry consumers and the spirits industry in New Zealand do. I commend the Geographical Indications (Wine and Spirits) Registration Bill to the House.