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Submission to Object to Terms Proposed by the European Union for Protection As Geographical Indications in Australia

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Submission to Object to Terms Proposed by the European Union for Protection As Geographical Indications in Australia SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE EUROPEAN UNION FOR PROTECTION AS GEOGRAPHICAL INDICATIONS IN AUSTRALIA Submitter’s contact information Name: Shawna Morris Company represented, including ACN or ABN, if any: Consortium for Common Food Names (CCFN) Other representative: E-mail address: [email protected] Mailing address: 2107 Wilson Blvd., Suite 600, Arlington, VA, 22201, United States of America Phone number: +1 (703) 528-4818 EU GI name you are objecting to (please use a new form for each term objected to) ΦΈΤΑ (Transcription into Latin alphabet: FETA) Ground(s) of objection to the protection of the EU GI name (please tick all the grounds that apply) 1. The EU GI name is used in Australia as the common name for the relevant good. X (See details below regarding grounds for our objection based on this element.) 2. The EU GI name is used in Australia as the name of a plant variety or an animal breed. (Please provide any relevant information that shows the name is also a plant variety or animal breed, such as studies, articles, copies of websites or any other relevant information) 3. The EU GI name is identical to, or likely to cause confusion with a trade mark or geographical indication that is registered or the subject of a pending application in Australia. (Please include the details of the GI or the trade mark including the trade mark number) 4. The EU GI name is identical, or likely to cause confusion with, an unregistered trade mark or geographical indication that has acquired rights through use in Australia. (Please identify the trade mark or GI and provide information that demonstrates how it is being used in the Australian marketplace.) 5. The EU GI name contains or consists of scandalous matter. (Please identify examples of how the name could be used in an offensive manner and who it would be offensive to.) Information or evidence supporting objection 1. The Opponent, the Consortium for Common Food Names (“CCFN”) is an independent, international non-profit alliance whose goal is to work with leaders in agriculture, trade, and intellectual property rights to foster the adoption of high standards and model geographical indication guidelines throughout the world. It is committed to working closely with all stakeholders as well as policymakers in the world to assist in amongst others, developing a clear and reasonable scope of protection for geographical indications as well as to foster adoption of a high-standard and model geographical indication guidelines worldwide. 2. The word “feta”/”fetta” is a common name, describing a particular style of cheese. It has been used extensively by many cheese manufacturers in packages of and documents relating to cheese being exported to Australia. As far as we are aware, the spelling of “feta/fetta” as “Φέτα”, i.e. the Greek characters, is not being used by non-Greek producers. On the other hand, use of “feta”/”fetta” as a generic term is widespread. The term has been used in that sense for many years in a number of countries, including for cheese which does not originate in Greece. “Feta”/”fetta” is a kind of soft cheese that can be made from a variety of milks, but most typically is produced from either cow’s or goat’s milk. In support of grounds number 1, above (the EU GI name is used in Australia as the common name for the relevant good), CCFN presents the following evidence and information in support: • In Australia there are several companies that produce and sell “feta/”fetta” products either on their websites or at well-known supermarkets like Coles and Woolworths, examples of the products sold in these retailers can be found in Exhibit 1, as well as a non-exhaustive list of Australian “feta/fetta” producers. • Apart from the above, “feta” and “fetta” cheese is included in several trademarks that are currently registered in Australia, this can be found in Exhibit 2. The registrants include Australian registrants and other registrants from outside the EU PDO "feta" region. Australian trade mark registration 304198 filed in 1977 includes the disclaimer "Registration of this trade mark shall give no right to the exclusive use of the surname 'GAGANIS' and the terms 'FETTA', 'TELEMES', or 'WHITE FETTA CHEESE' The Greek words appearing in the mark are translated as 'MACEdONIAN FETTA', the word 'TELEMES' is a specific type of 'MACEdONIAN FETTA'." A disclaimer was a pre-1995 Trade Marks Act means of disclaiming non-distinctive elements such as common names for goods. • A standard product description in the World Intellectual Property Organization (WIPO) features “feta” to describe a generic class of goods: WIPO is one of seventeen specialized agencies of the United Nations and was established to promote the protection of intellectual property worldwide. WIPO maintains the Madrid Goods & Services Manager database, which illustrates what is an acceptable standard description for the designated products of the international trademark registration application. The Madrid Goods & Services Manager includes the current Nice Classification, as well as other terms approved by WIPO and IP Offices around the world. Under descriptions for international applications based on the Madrid system, "feta cheese" is given as a standard description in the Madrid Goods and Services Manager. The given standard description in international standards provides proof that the name of the product to be included for designation in foodstuffs is recognized as the normal name of a cheese. (https://webaccess.wipo.int/mgs/) Australian trade mark registrations for goods including "feta"/"fetta" are also included in Exhibit 2. Again, the registrants include Australian registrants and other registrants from outside the EU PDO "feta" region. • Today, “feta”/”fetta” cheese is produced in various countries, including the U.S, Denmark, Australia, Bulgaria, South Africa, New Zealand, Mexico, France, and Argentina, amongst others. It is notable that the U.S. – not Greece – is the world’s largest single country producer of “feta” in the world. It is also notable that even within the EU, other EU countries export "feta"/"fetta" to Australia. Due to this long- standing and widespread production in other countries, including Australia, the term “feta”/“fetta” has become the generic name for a certain type of cheese. “Feta” has been produced and sold in the U.S., Argentina, France, Mexico, New Zealand and South Africa, among other countries, attached as Exhibit 3 is a non-exhaustive list of companies from outside Australia, that offer cheeses under the generic term “feta/fetta”. Pages from each of the websites showing use of the generic terms is also attached as part of Exhibit 3. It is important to note that each of these websites can be accessed by the Australian consumer. • Australia media articles are listing “feta”/”fetta” as a type of cheese, including references to it being made in Australia, that’s at threat of restriction. In these media reports there are references to both Australian production and at times production in other countries as well. Link to the articles can be found in Exhibit 4. • In The Federal Court case of Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd [2010] FCA 1367 Yarra Valley dairy’s registration 828542 PERSIAN FETTA was cancelled on the basis it was devoid of distinctive character pursuant to section 41(6) of the Trade Marks Act 1995 (as it then was). It was accepted between the parties at [202] that "the word “ Fetta ” is wholly descriptive of a type of cheese". Both parties offered fetta cheese products at the time. • "Fetta" is the name of a category for the Sydney Royal Cheese & Dairy Produce Show, the 2019 winners of which interchangeably described their products as "feta" or "fetta": • Even the European Union has a documented record of previously treating “feta” as a generic term for a type of cheese as evidenced by the fact that “feta” is listed in the EU tariff schedule. The Integrated Tariff of the European Community (“TARIC”) applies to all members of the EU and contains more than 14,000 codes for goods. TARIC designates the tax rate for each code of imported goods, other fees payable upon import, and licenses/special licenses (if requested) for importing goods into the EU. “Feta” cheese is listed in TARIC under code 0406903200 and can be found in Exhibit 5. If “feta” was not a type of cheese and could only be produced under the EU geographical indication for “feta”, there would be no need to include the term in the tariff schedule. • The United States and Australia brought a World Trademark Organization dispute resolution procedure (DS174; dS290) against the EU’s geographical indication protection regime (the predecessor to the current EU protection regime). The EU defended its protection of geographical indications even when those protections would be in conflict with prior trademark rights. The EU was successful in defending its geographical indication regime based solely on the grounds that use of the geographical indications registered pursuant to that regime would be considered a “fair use” under Article 17 of the TRIPS Agreement. It is striking that the EU now tries to deny the “fair use” of generic terms based on those same geographical indications. Specifically, the EU stated: “Moreover, Article 17 [of the TRIPS Agreement] mentions expressly as an example of "limited exception" the "fair use of descriptive terms". Geographical indications are "descriptive terms"…. The use of a geographical indication in order to indicate the true origin of the goods and the characteristic associated to that origin is certainly a "fair" use of that descriptive term.” WT/dS174/R/Add.2 Annex B-2, page B-81, ¶318 174RA2-01.pdf This bad faith on the part of the EU clearly indicates that its efforts to protect “feta”/”fetta” as a geographical indication in Australia is nothing more than an attempt to monopolize generic terms for the benefit of its producers and to the detriment of other producers from around the world and to the detriment of Australian supply chain purchasers and consumers who would be denied greater competition and more choices of cheese products.
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