What’s in a name?

22 December 2020

In the face of Brexit discussions, the protection of agricultural products and foodstuffs, with regards to the quality we have come to expect, remains unclear.

As a self-proclaimed food-snob, frequenter of whisky bars and connoisseur of fine wines, I caught myself pondering the post-Brexit future of my favourite EU/UK food and drink produce.

Faced with a mixed cheese and charcuterie platter consisting of Parma Ham, Danish Blue, Brie de Meaux, Camembert de Normandie, Gorgonzola and, you guessed it, from my resident country - Teviotdale, I realised that the protection of these food products may be dramatically altered following the end of the Brexit transition period.

You see, all the items on my platter are Protected Designations of Origin (PDO) or Protected Geographical Indications (PGI) in respect of EU Regulation (1151/2012; the regulation) on Quality Schemes for Agricultural Products and Foodstuffs. What this means is that associations, comprised mainly of producers and manufacturers working with agricultural products and foodstuffs, have taken time, effort and capital to register the products as such; thereby safeguarding the product name and ensuring that the premium-quality standards associated with these goods are maintained in the EU.

Consequently, without these registrations, the cheese on my platter called Teviotdale, could instead be a “knock-off”, one day aged substitute containing none of the characteristics associated with my beloved original Teviotdale cheese.

The registration of a name, with respect to the regulation, protects certain agricultural products and foodstuffs originating from particular geographical locations, possessing certain characteristics and being produced in a certain manner. The overriding purpose of the EU regulation is to promote production of agricultural products and foodstuffs with characteristics akin to a particular area and, in doing so, benefitting the rural economy and smaller farmers in outlying areas.

The EU maintains that registration of these product names promotes and protects cultural heritage, encourages investment in the geographical area, ensures products are produced subject to strict processing and preparation processes, to routine inspection requirements, and ensures product quality, origin and method of production to the consumer. In contrast, countries with a more liberal trading approach, such as the US and Canada, place less emphasis on the protection of these product names due to their belief that it stifles competition and inhibits trade.

The UK leaving the EU raises concerns about whether the UK will choose to follow the more liberal approach or maintain its current position.

The withdrawal agreement signed by the UK and EU in 2019 resulted in the mutual preservation of the status of certain of these products including that of Champagne and Scotch whisky. On the face of it, the withdrawal agreement seemed to suggest that the UK’s departure from the EU would not materially affect the protection of any products currently protected in the EU and UK.

The position in respect of new products, however, is less clear; the withdrawal agreement only recognises product names between the EU and UK which are currently registered. Those wishing to secure protection for products in the future, in both the EU and UK will not necessarily be granted this mutual product protection.

In an attempt at providing clarity, the UK revisited the protection of these names in the latest Brexit trade discussions. Michael Barnier, EU chief negotiator for the Brexit talks, believing that this was possibly an attempt by the UK to backtrack on its promises of protection, heavily criticised the revisit, stating that it was not compatible with the basis of a sustainable agreement with a country that is likely to remain a friend and partner. Barnier emphasised the demand that EU protected products need to be recognised in the UK.

If further trade agreements on the mutual recognition of protection of these products are not negotiated between the EU and UK, it would appear that new products seeking protection in both the EU and UK, will need to obtain separate registrations in each territory.

In preparation for this approach, the UK government has confirmed that from 1 January 2021 the UK will be setting up its own geographical indication scheme to protect these products in the UK.  The scheme will be managed by the Department for Environment, Food and Rural Affairs (Defra).

Defra has advised that those seeking protection for new UK products in the EU will first have to secure protection under the new UK scheme and thereafter apply for EU protection. A similar approach will have to be followed by those seeking protection for new EU products in the UK.

Brexit negotiations will be continuing virtually in the upcoming weeks; whether protection of these products is to be revisited remains to be seen 

Take home point: With the current position, in respect of the protection of agricultural products and foodstuffs constantly changing, it’s best to engage a competent IP Attorney specialised in this field who can advise you on how best to safeguard your rights.

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