Consultation outcome

Government response

Updated 25 January 2019

1. Introduction

This document contains the UK government’s response to the consultation on: Geographical Indications – creating UK schemes after Brexit.

The consultation ran for four weeks between 4 October and 1 November 2018. It set out proposals for the new UK GI schemes, and gathered a range of views on the new UK GI logos and appeals process. It also addressed wine and spirit sector standards, and provided stakeholders and the public with an opportunity to give general comments on the future of the UK GI schemes.

We received 92 responses from a range of organisations and individuals including current and potential GI producers, trade associations, trading standards bodies and non-profit organisations. Defra welcomes the interest in this consultation and thanks all those who contributed.

2. Overview

The UK government welcomes the feedback received from stakeholders and the public on the GI logo and appeals process, and the wider comments on the proposals for UK GI schemes after Brexit. This sets out what we have done as a result of consultation feedback.

2.1 Logo

Feedback from the consultation on the logos was included in the design brief for the new set of GI logos. Some of the key points we reflected in the brief to the design agency from the consultation included: that logos should convey heritage, quality and provenance; represent a range of products; build recognition of GIs, and be suitable for use on a wide range of packaging types. Stakeholder and consumer research will be conducted to ensure that the logos are appropriate for use by producers, as well as being recognisable and eye-catching to consumers. The majority of respondents said they were content with the three year adoption period for the logos, so we will be proceeding with this.

2.2 Appeals

The majority of respondents who expressed a preference for or against our appeals process were happy with our proposals for using First-tier Tribunal and General Regulatory Chamber Rules. Therefore, we will be proceeding with this approach. We will be publishing guidance on the UK schemes before 29 March 2019 in a ‘no deal’ scenario and before the end of the implementation period in a ‘deal’ scenario. We will ensure that we provide further detail and clarity on the appeals process because consultation responses showed this would be helpful.

2.3 Other comments

We also received several more general comments on the UK schemes which we respond to in this document. These are summarised below:

• in all scenarios, we anticipate that existing UK GIs will continue to be protected by the EU’s GI schemes after we leave the EU
• the new UK framework will comply with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
• devolved Administrations will have a significant role in the design and operation of the new schemes
• we will ensure that there is a good communications strategy, which promotes the new UK schemes and recognition of the new UK scheme logos
• the EU spirit drinks legislation that applies in the UK at the point we exit the EU will be converted into UK law by the EU (Withdrawal) Act
• wider comments in the consultation responses about the future of the UK schemes will be collated and used as the foundation for any future scheme development post-Brexit

3. UK logos

In creating the UK GI schemes, we intend to replace the EU logos with UK logos for use in the UK after we leave the EU. We wanted stakeholders and the public to have the opportunity to input ideas on the new logos in this consultation, as the people who will be using them on their products and buying GIs in shops.

There were a range of responses on the UK scheme logos, which played an important role in the logo design process. Feedback from the consultation was collated, analysed and included in the design brief we provided to the design agency working on creating our new set of logos. Some of the key points raised in the consultation responses that we emphasised to the design agency were that logos should convey heritage, quality and provenance, represent a range of products, build recognition of GIs, and be suitable for use on a wide range of packaging types. The contrasting viewpoints on the use of flags in the logo demonstrated that this was a controversial issue. Therefore, we asked the design agency to include a variety of options to take forward to producer testing.

As respondents put forward a range of viewpoints, sometimes conflicting, the challenge is preparing a logo, within a small space, which meets requirements stipulated in the regulation. Defra is carefully pursuing this to ensure the final logo conveys the qualities and characteristics emphasised by respondents.

Several respondents said that the logos should be tested with consumers and producers. Therefore, once several design options are drafted, stakeholder and consumer research will be conducted to ensure that the final set of logos are appropriate for use by producers and recognisable and eye-catching to consumers.

The majority of respondents said they were content with the three year adoption period for the logo, so we will be proceeding with this. There will be a strong communications strategy for the new UK schemes that promotes the logo, which was something respondents said they would like to see. We will be publishing scheme guidance further detailing the transition to the new logos. If there is ‘no deal’, this will be before March 29 2019. If there is a ‘deal’, this will be before the end of the implementation period.

4. Appeals process

New appeals arrangements need to be put in place as a result of the UK assuming new responsibilities and functions for GI applications currently exercised by the European Commission. We asked a number of questions to assess whether stakeholders were content with our proposals for a new appeals process.

We proposed that appeals should go to the First-tier Tribunal and use General Regulatory Chamber Rules. The First-tier Tribunal is part of the UK court system. It is independent and completely separate from the UK Government. General Regulatory Chamber Rules determine how cases are handled in the General Regulatory Chamber, which deals with appeals against government regulators. The rules include how to appeal, how hearings are conducted, and how the tribunal reaches decisions.

The majority of respondents who expressed a preference for or against our appeals process were happy with our proposals for using First-tier Tribunal and General Regulatory Chamber Rules. Therefore, we will be proceeding with this approach.

A large number of respondents answered ‘unsure’ to our questions on the appeals process, demonstrating that we need to make the appeals process clearer. Additionally, several respondents commented that the appeals process should be easy to understand and operate. The process will be clarified in the scheme guidance. We will ensure that we provide further detail and clarity on the appeals process where consultation responses showed this would be helpful.

Several respondents had concerns about the cost of launching an appeal. Using a First-tier Tribunal is not deemed to be an expensive or burdensome destination for appeals. Currently, the Ministry of Justice do not charge applicants to launch an appeal.

A minority of respondents suggested alternative destinations for the appeals process, for example that these could be dealt with by the Intellectual Property Office (IPO). We concluded that the First-tier Tribunal and General Regulatory Chamber Rules approach is transparent, independent and more financially viable than alternative destinations.

A minority of respondents thought that the right to appeal should include additional decisions to the ones listed in the consultation. Two of the suggestions will already be provided for in legislation – Secretary of State deciding on significant amendments to GIs, and decisions granting or rejecting applications when there is no opposition. One of the suggestions was that decisions should include recourse following investigation of businesses in breach of the protected scheme. This will be provided for in the new enforcement legislation that we also consulted on: Protected Food Name scheme – improving enforcement.

There was also a comment that GI producers should have a right to appeal against inspection bodies following an auditing process. The relationship between a producer of a PFN and control bodies is a commercial one. Control bodies operate according to accreditation standards and independently of any government influence. Therefore, any issues about the service provided by a control body to producers would need to be resolved between the contracting parties.

A minority of respondents suggested that the First-tier Tribunal should include members with GI expertise. We explored this option, but found that it incurred high costs. As we expect appeals to be rare we think maintaining a pool of suitably qualified experts capable of covering any of the varied GI issues that could arise would not be cost-effective. Instead, we propose that the First-tier Tribunal should make use of its existing ability to call upon expert witnesses on a case by case basis.

5. Other comments

Defra welcomes the engagement on a wide range of GI issues and topics in this section of the consultation.

Respondents emphasised that the schemes should be easy to use, understand and operate. We will be publishing scheme guidance which will clarify the requirements of the schemes. This will be published before March 29 2019 in a ‘no deal’ scenario and before the end of the implementation period in a ‘deal’ scenario.

There were several comments on the protection of UK GIs in the EU and EU GIs in the UK. The government values the cultural and economic importance of GIs, which is why we will establish UK GI schemes to protect them in the future. In any scenario, we anticipate that existing UK GIs will continue to be protected by the EU’s GI schemes after we leave the EU. This is because UK GIs are already protected by virtue of being on the EU’s various GI registers. That protection will continue automatically in the EU unless relevant entries are removed, which would require additional EU legislation.

In the Withdrawal Agreement, the protection of EU GIs in the UK will continue unless and until the future economic partnership determines otherwise. The UK has always maintained that the protection of EU GIs in the UK should be negotiated as part of our future economic partnership - this resolution acknowledges that. The potential long-term protection of EU GIs in the UK will be determined as part of the negotiations under the future economic partnership. In a ‘no deal’ scenario, the UK would no longer be required to recognise EU GI status. EU producers would be able to apply for UK GI status.

In the event that the EU takes steps to no longer recognise UK GIs, UK producers wishing to regain the protection offered by EU GI status, and the right to use the EU GI logo, would need to submit their applications to the European Commission as ‘third country’ producers. The application process would be similar to that used by EU countries, with the additional need to show that the GI is protected in the UK. The UK government would provide support and guidance for this process.

Stakeholders wanted reassurance that their GIs would receive the same high level of intellectual property protection provided by the EU schemes in the new UK schemes. The new UK framework will comply with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and go beyond it in line with the EU schemes. Both UK and international producers will continue to have the legal means to prevent the misuse of GIs in the UK.

Some respondents wanted further information on how Defra and the Devolved Administrations are working together on the future UK GI schemes. The UK Government is working with the Devolved Administrations to ensure that the new UK schemes are developed with the interests of all producers, from all regions of the UK, taken into account. Geographical indications are a reserved policy area. However, the UK government is committed to giving the Devolved Administrations an active role in the administration of the new schemes.

One stakeholder suggested that there needs to be the option to cancel a GI. This already exists in the current EU schemes and will be included in the legislation for the new UK GI schemes.

We received comments that the new schemes should be accompanied by a good communications strategy from Defra. We will ensure that we have a communications strategy that promotes the launch of the new UK schemes and its logos, encourages a rise in consumer awareness and ensures that industry is aware of changes to the GI system in the UK.

Respondents expressed a desire for continuity with the spirit drinks regulations, and for the new EU spirit drinks regulation to be implemented as soon as possible. This is dependent on the date of application of the new regulation, as the EU (Withdrawal) Act will only convert the regulation that is applicable at the time of exit. Whilst much of the new regulation will apply two years after entry into force, the GI provisions must be implemented two weeks after they apply. Parts of the regulation that apply before 29 March 2019 will be incorporated into UK law. There are no plans to amend the regulation, definition and protection of spirit drinks as a direct result of EU Exit other than for operability, and we note the desire to avoid divergence where possible. This will require further consideration ahead of spring 2021 when the rest of the new regulation will apply in the EU.

All comments in this section of the consultation on the future UK GI schemes will be used as a foundation for any future schemes development post-Brexit, to make policy changes to improve the schemes for producers/consumers.