UK government guidance on food and drink products protected by an EU geographical indication (GI) in the event of “no-deal” Brexit

United Kingdom

On 24 September 2018, the UK Government published long-awaited guidance on how certain aspects of protection of EU geographical indications (GIs) will be treated in the event that no Brexit deal has been agreed prior to the UK’s exit from the EU on 29 March 2019. This guidance is part of the “series of technical notices setting out information to allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario”. It is important to be aware that the published note is for guidance, only. It is not statutory legislation, which will follow.

New UK geographical indications scheme (GI scheme)

Geographical indications have become an important discussion point in the UK-EU negotiations for which a common agreement in the draft Withdrawal Agreement is yet outstanding.

More recently, the UK government has indicated that it intends to set up an independent UK GI scheme which will be WTO TRIPS compliant – similar to the current EU GI regime.

Nevertheless, the UK government is working towards a Withdrawal Agreement that will ensure the continued protection of EU GIs for UK right holders.

The UK government is intending to publish further guidance on the new GI scheme in early 2019.

Existing geographical indications owned by UK right holders

Under the new UK GI scheme, current owners of EU GIs will be granted an automatic UK GI right. This will apply to all current 86 UK GIs (76 agricultural and food products, five wines and five spirit drinks).

Unless an agreement between the UK and the EU will provide otherwise, current UK GI right holders will lose their EU right. In order to regain protection in the EU and in order for UK right holders to be permitted to use the EU GI logo, they will have to apply for new EU GI protection as “third country” producers. Such EU protection would require the UK Applicant to also own a UK GI right. The UK government intends to provide support and guidance should this scenario arise.

The guidance note also reminds that it may be possible for current UK right holders to apply for EU Collective Marks or EU Certification Marks either in addition to or as an alternative to GI protection.

Existing geographical indications owned by EU right holders

Existing EU right holders would have to apply for UK GI status. Such status would not be granted automatically.

This differs from the position the UK government announced in respect of trade marks since owners of EU trade mark registrations will automatically be granted an equivalent UK trade mark registration.

International protection of GIs through EU agreements

The EU is a member of a number of international agreements, including Free Trade Agreements, which provide international protection for those GIs listed in these agreements. After Brexit, and without any agreement to the contrary, it is likely that UK owned GIs will no longer be included in the list of names for which the EU seeks protection in new trade deals. The EU may also formally revoke its request for protection for UK owned GIs currently included in existing trade agreements.

The UK government intends to replicate many of these international agreements. Some of the countries currently of interest for future trading relations, such as the US, Canada, Australia and New Zealand have traditionally been reluctant to accept the protection of food names originating from Europe. Ultimately, protection granted to UK owned GI’s internationally will depend on individual negotiations between the UK government and any potential future trading partner.

EU GI logo

UK GI right holders will not be permitted to use the current EU GI logo after Brexit unless they also enjoy protection of an EU GI right.

UK GI logo

The UK government is intending to introduce a UK specific GI logo. Right holders are warned that they will need to make preparations to comply with the rules surrounding such logo once it has been introduced.

https://www.gov.uk/government/publications/protecting-geographical-food-and-drink-names-if-theres-no-brexit-deal