How are geographical indications protected in Australia?
In Australia, geographical indications are protected by:
- specific legislation
- certification trademarks
- consumer protection laws.
Specific legislation
Pursuant to international treaties and agreements to which Australia is party, specific legislation in Australia regulates the use of both Australian and foreign geographical indications in relation to wine.
It is an offence therefore, if a seller, exporter or importer of wine sells, exports, or imports it with a false description.
A description will be false, for example, if it:
- indicates that wine originated in Australia or another country, when it did not originate in the indicated country
- indicates a registered geographical indication, when it did not originate from the geographical region associated with that registered geographical indication.
In each case, a criminal offence is committed.
Certification trademarks
A certification trademark can be applied for, owned and used much like ordinary trademarks.
The purpose of the certification trademark is to indicate that a product or service is certified as having met a specific standard. The standard that it is required to meet could relate to its quality, its content, the method by which it is made, or its geographical origin.
The following table includes examples of certification trademarks that indicate geographical origin.
| Product | Geographical region associated with that product | Quality, reputation or other characteristic that is protected |
|---|---|---|
| Australian wool | Australia | New wool product made from Australian wool |
| Various food products branded with the distinctive 'Product of Australia' logo | Australia | All of the product's significant ingredients come from Australia; and all of nearly all of the manufacturing or processing is also carried out in Australia |
| Parma ham | Town of Parma, Italy | Distinctive recipe for this ham from this region |
| Darjeeling tea | Darjeeling region of West Bengal, India | The reputation and distinctiveness of the tea |
Consumer protection laws
The Australian Consumer Law makes it unlawful for a person to:
- engage in conduct that is misleading or deceptive or likely to mislead or deceive, or
- make false or misleading representations.
A person engages in misleading and deceptive conduct if, for example, the person makes a statement in trade or commerce that is misleading or deceiving or likely to mislead or deceive.
Accordingly, making a claim that a product has a certain origin, when that is not the case, is misleading or deceptive or likely to mislead or deceive, and contrary to the Australian Consumer Law.
It can also be a false or misleading representation.
That will be so, whether the origin that is incorrectly claimed is an Australian origin, or an overseas origin.
Contravention can lead to:
- damages (paying monetary compensation)
- an injunction (an order that certain conduct stop)
- in some circumstances, a fine (pecuniary penalty)
- other orders.