From Feta and Prosecco to Pisco and Basmati

GIs under the A-EU FTA

As we reported in our Insight in April 2026, Australia and the EU have now agreed the A-EU FTA. Under this agreement, Australia has agreed to protect hundreds of European food, beverage and agricultural terms. Businesses will no longer be able to use these terms in Australia unless the product originates from the relevant EU region and meets its production requirements.

Although this will restrict Australian producers and traders, Australia has negotiated flexibilities to soften the impact. Australia will also establish a new domestic GI registration system, open to local and foreign holders, creating an opportunity for Australian businesses to protect geographically significant product names beyond the existing certification trade mark system.

Continued use

Australia secured the right to continue using certain terms, provided their use is not misleading. For example, ‘parmesan’ can still be used (despite the EU GI for Parmigiano Reggiano), as long as packaged products carry a country-of-origin label. Similarly, other common names of goods and plant varieties are fair game, including kransky, prosciutto, brie, camembert, mozzarella, whisky and kalamata, even though they form part of protected GIs.

Grandfathering

Australia also negotiated grandfathering protections. Producers who can show continuous, good-faith use of a term for at least five years before the treaty enters into force may continue using it indefinitely. Examples include:

• Bavarian (which is related to the protected GI Bayerisches Bier) - used in respect of beer;
• Feta and Gruyere - used in respect of cheese; and
• Grappa (which is related to various protected GIs such as Grappa di Barolo and Grappa Lombarda) - used in respect of spirits.[

Phasing out

Other terms will be phased out over defined grace periods:

• Ouzo and Tsipouro (used in respect of Greek spirits) will be phased out over seven years;
• Sherry vinegar (ie, Vinagre de Jerez) will be phased out over five years; and
• Romano (ie, Pecorino Romano) can continue to be used at the retail level for up to five years if, at the time the agreement takes effect, businesses have used the term in good faith in Australia with a clear and visible indication of the product’s geographical origin. However, prior users of Romano at other levels of the supply chain, who used the term in good faith at the wholesale level for at least five years before the FTA takes effect, are caught by the grandfathering provision and can continue using the term indefinitely.

Standard of protection

Names protected as EU GIs can be used by anyone whose product meets the GI’s specifications (as approved by the EU), including that it is made in the relevant region. GI protection is broad. Use on a product that does not meet the specification requirement is prohibited even where the true origin is disclosed (eg, ‘Australian Feta Cheese’) or the term is qualified with words such as ‘style’ (eg, ‘Australian-style Feta’). Several related aspects of the new regime are worth noting:

• Translations, transliterations and evocations: GI protection extends to translations and transliterations (eg, Bavarian for Bayerisches Bier; Elia Kalamatas for Ελιά Καλαμάτας). However, Australia secured an important concession: protection will not extend to ‘evocation’ of a GI, a controversial EU doctrine that would have significantly broadened GI protection.
• Interaction with trade marks: GIs will be protected even where they conflict with an existing Australian trade mark, but existing trade mark owners who applied in good faith before the A-EU FTA takes effect will retain their rights. Future GIs may also coexist with prior trade marks, though no new conflicting trade mark can be registered once a GI is in place.
• Comparison to TRIPS standard: The A-EU FTA’s standard of protection is higher than the international baseline under the TRIPS Agreement. For example, under TRIPS, ‘Feta-style Australian cheese’ would be permissible because the true origin is indicated and the product name is unlikely to be misleading. Under the A-EU FTA, this would still infringe the GI for Feta (subject to the grandfathering provision).

GIs as certification trade marks: new Federal Court guidance

While the A-EU FTA is yet to be signed and implemented, litigation on GIs is occurring in Australia. The Federal Court of Australia handed down two judgments in quick succession concerning the registrability of two GIs as certification trade marks: Pisco (a type of brandy) and Basmati (a type of rice). These are the first occasions on which the Federal Court of Australia (Australia's main court for trade mark litigation) has ruled on certification trade marks.

Certification trade marks are marks certifying that goods and services comply with certain specifications, available to be used by any producer or trader that has met those requirements. Under Australia's current domestic law, GIs are a subset of certification trade marks. The threshold question for registration of a certification trade mark appears straightforward: can the mark distinguish goods and services certified by the applicant from goods and services not so certified?¹ However, these two cases illustrate the potential complexities in making this assessment, as the court came to opposite conclusions in the cases.

Peru prevails on PISCO

In Republic of Peru (Peruvian State) v Registrar of Trade Marks [2026] FCA 791, the Registrar of Trade Marks had refused Peru's application to register PISCO as a certification trade mark for alcoholic beverages, concluding that the term was merely descriptive of a brandy produced across both Peru and Chile. Peru appealed, contending that PISCO was distinctively associated with a specific region of Peru and the regulated production methods practised there.

Both parties agreed that the test under Cantarella Bros v Modena Trading would apply, but the judge emphasised that the test was modified by the different statutory scheme for certification marks. This test thus had two key limbs:

• the ordinary signification of the word to the ordinary Australian consumer of the relevant goods (as at the priority date), bearing in mind that certification trade marks function as a badge of certification, not a badge of trade origin; and
• whether other traders, without improper motive, had a legitimate need to use the word for their goods, bearing in mind that any legitimate trader of compliant goods from the geographical region would be able to use the mark.

The parties adduced contrary linguistic evidence from dictionaries and books. Peru was, however, able to establish that a large amount of Peruvian Pisco had been imported and sold in Australia in the years preceding the priority date, whereas the amount of Chilean Pisco was much lower and declining sharply. There was clear evidence that the Peruvian origin of Peruvian Pisco was clearly and consistently marked on labels when sold in Australia, whereas the Court considered the Registrar's evidence on imports of Chilean Pisco lacking in context, particularly regarding actual product labelling before the 2019 priority date.

The Court ultimately held that the average Australian consumer would understand PISCO as denoting alcoholic beverages from the Pisco region of Peru, not as a generic descriptor for grape brandy from either Peru or Chile, and thus, the certification trade mark application was allowed to proceed.

India fails to register BASMATI

In Agricultural and Processed Food Products Export Development Authority v Registrar of Trade Marks [2026] FCA 1125, the Registrar had similarly refused registration of BASMATI as a certification trade mark for rice on the basis that the term described a variety of rice grown in a region that spanned north India and Pakistan, rather than goods certified by a single authority (India’s Agricultural and Processed Food Products Export Development Authority (APEDA)). APEDA appealed, arguing that Australian consumers would associate BASMATI specifically with Indian-certified rice.

The court accepted that Basmati is not the name of a place. It is a long-grain rice variety cultivated across the Indo-Gangetic plains, a region straddling both India and Pakistan. All parties accepted that production occurs in both countries. APEDA regulates its export only in India: Pakistani Basmati is not subject to APEDA certification.

APEDA pointed to over 306,000 tonnes of Indian Basmati imported into Australia between 1988 and 2018, but the Court accepted that substantial volumes of Pakistani Basmati had also entered the market over the same period. The Court also looked at Australian publications and culinary texts that reinforced the view that consumers understood BASMATI as referring to rice from both countries. Survey evidence tendered by APEDA did little to shift this view, as a majority of respondents could not identify, or were unsure of, where Basmati rice came from.

The court held that BASMATI functioned as a descriptor of a type of rice, not as a badge certifying Indian origin. Other traders (ie, traders in Pakistani Basmati) had a legitimate need to use BASMATI to describe their products. The Court refused the application.

The recipe for a registrable certification trade mark

At first glance, the two cases look like they could have landed the same way: a well-known food or drink name with production across borders, a foreign government authority seeking certification trade mark registration confined to one of these countries, and a Registrar saying no. The divergent outcomes offer practical guidance for any consortium or authority considering certification trade mark registration:

• Competing use in Australia: Evidence of Chilean spirits sold as ‘Pisco’ in Australia was minimal. Evidence of Pakistani rice sold as ‘Basmati’ was substantial.
• Consumer perception: Evidence (including label evidence) supported the finding of a link in the mind of the Australian consumer between PISCO and Peru. By contrast, both Indian-certified Basmati and Pakistani Basmati were associated with that variety name in the eyes of Australian consumers.
• Australian evidence: In both cases, the court took note of Australian evidence: dictionary definitions, cookbooks and other publications drew the court's attention where there was an Australian link, and evidence of packaging or labelling visible to the Australian consumer was crucial.