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What New Zealand’s free trade agreement with the EU means for intellectual property

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Florence Lundon-Moore and Kieran O’Connell of AJ Park consider the implications of the New Zealand – EU free trade agreement for wine, cheese, and Mānuka honey

On June 30 2022, New Zealand and the EU concluded negotiations on a free trade agreement (FTA).

For New Zealand, the potential economic benefit of the FTA is significant. The EU is already New Zealand’s fourth-largest trading partner. Two-way trade in goods and services between New Zealand and the EU is estimated to be worth around NZD 17.5 billion ($11 billion) annually. The FTA will see 97% of New Zealand’s exports to the EU eventually become duty-free.

The FTA contains a chapter on IP that complements the existing rights and obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The IP chapter includes the following key provisions:

  • New Zealand will extend the term of protection for copyright by 20 years and will implement this change within four years of the FTA entering into force;

  • New Zealand’s regime for the registration of geographical indications (GIs) will be extended beyond wine and spirits to include agricultural products, foodstuffs and other beverages;

  • New Zealand and the EU will each protect a list of the other’s GIs, including EU protecting a number of New Zealand wine GIs;

  • As was agreed in the UK FTA, the parties will establish and maintain a regime relating to an artist’s resale right;

  • New Zealand will make all reasonable efforts to join the Hague Agreement Concerning the International Registration of Industrial Designs, mirroring the commitment given under the UK FTA;

  • New Zealand will maintain its patent and data protection rules, preventing the increase in costs associated with human or veterinary medicines and agricultural chemicals; and

  • The recognition of Te Tiriti o Waitangi / The Treaty of Waitangi has been a central consideration for New Zealand.

Many of these provisions echo what New Zealand agreed in its FTA negotiations with the UK that were concluded earlier this year, albeit with shorter timeframes for compliance.

Geographical indications

The protection of EU GIs in New Zealand was identified as an essential outcome of the FTA for the EU.

New Zealand has agreed to protect close to 2,200 EU GIs in New Zealand. New Zealand has also agreed to amend its existing GI laws to extend the registration regime beyond the current wine and spirits to other food and beverage products.

The EU has agreed to protect New Zealand wine GIs in the EU, and the parties have agreed that the list may be amended over time. To provide some context for the comparable number, at the time of writing there are 22 New Zealand GIs registered for wine in New Zealand.

Included in the list of EU GIs are terms that many New Zealand consumers would likely think of as generic descriptors. For some of these names, New Zealand producers have been given a longer period of time to adjust and come up with alternative descriptions before the restriction is in place.

The restriction on ‘feta’, for example, will apply within nine years of the agreement coming into force, and ‘gorgonzola’ within five years. For ‘parmesan’ and ‘gruyere’, New Zealand cheese makers can continue to use the terms if they have been using them for five or more years before the FTA is implemented. Terms including ‘mozzarella’, ‘brie’, ‘camembert’, and ‘gouda’ can continue to be used without restriction.

Mānuka honey and Māori interests

The FTA also contains a chapter, separate to the IP chapter, on Māori Trade and Economic Cooperation which aims to advance Māori trade in the EU. The stated purpose of the chapter is for the parties to pursue cooperation to contribute to New Zealand’s efforts to enable and advance Māori economic aspirations and wellbeing.

Included within this chapter are two interesting references to IP:

1. A reference to the parties cooperating and exchanging information and experience on GIs. Outside of wine, New Zealand does not have a strong heritage of reliance upon “geographical indications” as they would be thought of in the European tradition. The reference points to potential growth in GIs with the Māori economy.

2.     A definition of ‘Mānuka’ as “the Māori word used exclusively for the tree Leptospermum scoparium grown in Aotearoa New Zealand and products including honey … deriving from that tree. Mānuka… is culturally important to Māori as a tāonga and traditional medicine.”

This definition appears to allow ‘Mānuka’ to be recognised as something akin to a GI but that has been placed outside of the context of the GIs within the IP chapter.

However, it is not readily apparent from the text how this definition will translate to recognition and protection within the European market.

Next steps

Following the conclusion of negotiations, a number of procedural steps will take place before the FTA is entered into force. Such steps will be taken place between now and 2024, and will include each party carrying out their respective domestic legal processes.

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