Geographical Indications after Brexit

Stilton Cheese

Author: Dominik Hundhammer
Licence: Creative Commons Attribution-Share Alike 3.0 unported

Source Wikipedia  Commons

Jane Lambert

A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.  Examples include Cornish pasties, Scotch whisky and, of course, Stilton cheese (see HM Government Protected Food Scheme: UK registered products 15 Jan 2014). The UK is bound to protect such signs by art 22 of the Agreement on Trae-Related Aspects of Intellectual Property Rights ("TRIPS") and art 10bis  of the Paris Convention for the Protection of Industrial Property.

HM Government discharges those obligations by

• collective and certification marks;
• the extended action of passing off; and
• special European Union legislation for agricultural farm products and foodstuffs and wines and spirits.

The special EU legislation is Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs 14.12.2012.

If and when the UK ever leaves the EU, Regulation 1151/2012 will cease to apply to the UK except in so far as, and to the extent that, it is caught by s.3 of the European Union (Withdrawal) Act 2018.  The draft withdrawal agreement of 14 Nov 2018 provided for EU law, including that regulation, to continue to apply to the UK from the exit date to the 31 Dec 2020. Thereafter art 54 (2) of that agreement provided for at least the same level of protection to continue to apply to products registered under regulation 1151/2012 from 31 Dec 2020 without any re-examination. Paragraph 45  of the political declaration on the future relationship between the EU and UK noted the protection afforded to existing geographical indications in the withdrawal agreement and required  the UK and EU to  seek to put in place arrangements to provide appropriate protection for their respective geographical indications.

Unless the British government revokes its notification of intention to leave the EU of 29 March 2017 before 31 Oct 2019 (or the expiry of such further extension to the notice period as may be agreed by the UK and remaining member states) this country must implement its own scheme for protecting geographical indications before 31 Oct 2019 or 31 Dec 2020 at the latest. The Department for the Environment, Food and Rural Affairs ("DEFRA") has already held consultations on establishing a UK geographical indications scheme after brexit and the enforcement of what it calls "the protected food name scheme". There is as yet no draft legislation but DEFRA has published Guidance on protecting food and drink names if there's no Brexit deal, 

The guidance states that the UK will set up its own geographical indications scheme which will be managed by DEFRA. The department will maintain a register of protected products and process new applications. The new UK scheme will use the same classes as the current EU one, namely:

• Protected Designation of Origin (PDO)
• Protected Geographical Indication (PGI), and
• Traditional Specialities Guaranteed (TSG).

Local authority trading standards officers will enforce the legislation.

All existing UK products registered under the EU scheme will automatically get UK status and remain protected in the UK. Food and drink producers from the UK and abroad will be entitled to apply for protection in accordance with advice to be published by DEFRA in October. DEFRA will design a new set of logos for each of the above classes which may be used by British and overseas food producers alike.

British products will continue to be protected by EU legislation and the legislation of third countries with which the EU has a trade agreement if the UK leaves the EU in accordance with the draft withdrawal agreement or possibly such other agreement as may be negotiated.  The guidance warns that that may not happen if the UK leaves without a withdrawal agreement in which case British food and drink producers will have to reapply to the Commission for EU geographical indication protection or some other form of protection such as a certification or collective EU trade mark,

Anyone wishing to discuss this article or geographical indications generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Plant Breeders' Right after Brexit

A Saline Resistant Wheat Variety

Author US Department of Agriculture
Licence Copyright waived by US government
Source Wikipedia "Plant Breeding"

Jane Lambert

A plant breeders' right is the exclusive right to prevent reproduction, marketing, selling and certain other acts in relation to new plant varieties.  Plant breeders can acquire those rights for the UK alone by registering  the plant variety with the Plant Variety Rights Office in Cambridge. Alternatively, they can obtain such protection in all 28 EU member states including the UK by registering it with the Community Plant Variety Office ("CPVO") in Angers.

The legislation that established the CPVO and provides for plant breeders' rights throughout the EU is Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ("the Plant Variety Rights Regulation").  That regulation will cease to apply to the UK once it leaves the EU by reason of art 50 (3) of the Treaty of European Union.  If HM government concludes a withdrawal agreement substantially on the terms of the draft that has circulated since the end of February the regulation will continue to apply to the UK until 31 Dec 2020.   If this country leaves without such an agreement the regulation will cease to apply after 29 March 2019.

On 12 Oct 2018 the Department for Agriculture, Food and Rural Affairs published a guidance note entitled Plant variety rights and marketing of seed and propagating material if there’s no Brexit deal in case the UK leaves the EU without a withdrawal agreement.  According to the note, existing Community plant variety rights belonging to British rights holders will continue to be recognized and enforced in the remaining EU member states. They will also be recognized and protected in the UK presumably because the regulation will be incorporated into our national law by s.3 of the European Union (Withdrawal) Act 2018.

The guidance states that where an application has been made to the CPVO but not granted before the UK leaves the EU, the applicant must make a fresh application to the Plant Variety Rights Office. However, the applicant will keep the same priority date and rely on the same test for distinctiveness, uniformity and stability.

The CPVO issued a Notice to Stakeholders regarding the withdrawal of the UK and EU rules in the field of Plant Variety Rights on 30 Jan 2018.

Anyone wishing to discuss this article or plant breeders' rights generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.