This article was first published by LexisNexis in September 2016 and is reproduced by kind permission.
IP & IT analysis: David Thompson, partner and Freya Lemon, solicitor at Michelmores, explain the EU protected food name scheme and how this could potentially be affected by Brexit.
Under the EU’s Protected Food Names (PFN) scheme, certain regional and traditional food products are afforded legal protection throughout the EU against unauthorised production and reproduction.
Akin to a trade mark, the PFN scheme serves to validate an intellectual property (IP) right in a product description, which is then ‘owned’ by producers in a particular region, using specific methods and ingredients.
There are three types of PFN under the scheme for food (and some drink) products:
If an applicant wishes to register a UK product under the PFN scheme, they must first seek approval from the Department for Environment, Food and Rural Affairs (Defra) (as the current national authority). Defra’s approval then paves the way for consideration and, if successfully approved, registration by the European Commission. Such registrations are indefinite in the EU and also serve to supersede any trade mark which may previously have been registered with the same product name.
PFN products can now be easily distinguished by the presence of a mandatory designated EU logo indicating the requisite PGI, PDO or TSG registration. These logos were introduced on 4 January 2016.
In comparison to other EU countries such as France, Spain and Italy, the UK has relatively few PFNs, at 77 currently (including those pending registration). Nonetheless, the PFN scheme is valuable to the UK economy and to those involved in the production and sale of protected foods.
Cornwall and the wider south west region benefit from a number of well-known PFNs. The humble Cornish pasty was the first British product granted PGI status. The industry associated with the Cornish pasty is vital to its region’s economy, employing over 2,000 people and generating £300m of trade per annum, according to the Cornish Pasty Association.
Other West Country household products include West Country farmhouse cheddar cheese and Cornish clotted cream (each PDOs).
Salmon is Scotland’s largest export food and both Scottish farmed and Scottish wild salmon have been awarded PGI status. According to the Scottish Salmon Producers’ Organisation, the worldwide retail value of Scottish farmed salmon is over £1bn.
Other well-known PFNs include:
There is also an equivalent protected Geographical Indication (GI) register for spirit drinks, such as Scotch whiskey, Irish whisky and Irish cream.
The effect on British products currently protected under the PFN scheme is, understandably, a concern for many.
It is important to note that PFN registrations will not, necessarily, fall directly away when Britain withdraws from the EU. The PFN scheme is not restricted exclusively to products originating in EU countries. For example, Columbian coffee is a registered PGI, as are a number of other non-EU products.
For British products to benefit from PFN registration and continued protection, however, there must be reciprocal protections afforded by the UK to EU PFNs. In short, we must protect theirs if we want them to protect ours. Without this, applications to the European Commission will be rejected.
It is not currently known whether or not existing registrations would be withdrawn, although this is a risk if no reciprocal arrangement is implemented.
Product protection within the UK also risks being eroded following Brexit, even for registrations under the EU PFN scheme. This is because the scheme only protects products within the EU market and will not be enforceable in the UK.
Of course, some may see this as an opportunity to produce ‘protected’ products in the UK without being held-back by EU restrictions (for example, by marketing sparkling wine under the esteemed ‘Champagne’ name). However, passing-off rules will still apply. Even pre-PFN scheme, the British courts ruled in favour of ‘Champagne’ being reserved for use by producers in the protected French region.
In light of the above factors, Brexit, without a UK equivalent and reciprocal arrangement with the EU, risks the following outcomes:
The government has previously acknowledged the above industry concerns. Former Environment Secretary of State, Liz Truss, highlighted the need to develop a ‘British protected food name status’ to replace the EU PFN scheme and we would expect to see a similar scheme established in the UK.
Little more has been said on the issue at state level, however, and the question of ‘what happens next’ is unlikely to be answered in the near future. There is little doubt that food and drink trade associations (not least those linked to existing PFN registrations) will continue to lobby Defra, who will need to put the issue on their agenda pre-Brexit.
In the interim, there are fears that PFN registrations may stagnate due to the uncertain national strategy.
Clients in the sector, who are concerned about the status of protected food names post-Brexit, should avoid panicking at this stage. The EU scheme is currently ‘business as usual’, with a UK equivalent likely to be negotiated before any such protection ceases to apply to the UK.
Nonetheless, clients should be advised to make their concerns known—either to their relevant food or drink association, or directly to the UK Protected Food Names Association or Defra.
Those in the process of, or thinking about applying, should continue with their submissions unless and until such a time as Defra and/or the European Commission suggests otherwise. There is currently no formal indication that applications are being, or will be, rejected as a result of Brexit.
Those already registered will continue to be afforded EU protection, although look out for word from Defra about any substitute scheme—particularly if there is any requirement to re-apply or register.
It is also important to remember that the EU PFN scheme does not afford an ‘all-inclusive’ level of protection. Food and drink clients can and should also take other steps to identify and protect their rights as part of a fuller IP strategy.
For more information please contact David Thompson.