A geographical indication is used to identify a good as being from a particular place where the good also possesses a certain quality, reputation or other characteristic attributable to its geographical origin.
Generally, geographical indications are collectively owned intellectual property rights associated with primary or traditional products, like wine, cheese and meats.
International law on geographical indications
As a member of the World Trade Organisation (WTO), New Zealand is party to the TRIPS Agreement.
Under the TRIPS Agreement, WTO members are required to provide the means for interested parties to protect geographical indications against use that misleads consumers as to the true origin of the goods, or use that amounts to unfair competition.
For wines and spirits, TRIPS obligates WTO members to provide the means to prevent the use of a geographical indication irrespective of whether the true origin of the goods is indicated and even where the geographical indication is accompanied by expressions such as ‘kind’, ‘style’ or ‘like’.
Find out more about international geographical indication-related issues on the Ministry of Foreign Affairs and Trade website.
Protection for geographical indications in New Zealand
In New Zealand, protection for geographical indications is provided by the Fair Trading Act 1986, the common law tort of ‘passing off’ and through trade mark law. The Geographical Indications (Wine and Spirits) Registration Act 2006 establishes a registration system for wine and spirit geographical indications but this Act is not yet in force.
Fair Trading Act 1986
Section 9 of the Fair Trading Act 1986 provides that "No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".
A product that does not originate from the geographical area indicated, or that does not possess the characteristics for which a geographical indication is known, could be found to breach the Act.
Passing off of goods or services
The law of passing off prevents one trader from passing their goods or services off as those of another. Passing off has been used in New Zealand by French wine interests to prevent non-French winemakers from labelling their sparkling wine with “Champagne” (a term protected as a geographical indication in the European Community).
For a passing off action to succeed:
- There must be goodwill attached to the goods or services.
- There must be a misrepresentation, whether intentional or not.
- There must be damage to the goodwill.
Trade mark law
A geographical indication may be protected in New Zealand as a trade mark, including as a collective or certification trade mark. Find out more about New Zealand trade mark registration and protection on the IPONZ website.
Protection for geographical indications overseas
The TRIPS Agreement doesn’t prescribe how countries should protect geographical indications and so different countries protect geographical indications in different ways: through trade mark law, through specific geographical indication legislation, or through general consumer protection laws.
Where to find legal advice
The Ministry of Economic Development is not able to provide legal advice. If you have questions about your legal position, please contact an intellectual property lawyer. You’ll find them in:
Find out more
To find out more about intellectual property protection in New Zealand, contact the Intellectual Property Policy Group.