Protection of Geographical Indications in China.

Introduction

As a significant part of intellectual property, geographical indications (GIs) have drawn more attention from the Chinese government and enterprises. China approved 2,391 GI products by the end of 2020, and granted more than 9,400 enterprises permission to use the protected products of the national geographical trademark, said Zhang Zhicheng, head of the protection department of the National Intellectual Property Administration at a press conference on Jan 22.

Geographical Indications in China. [Image Source: Wipo Int]

A GI is a sign to show a product has a specific geographical origin and possesses qualities or a reputation due to that origin. It is a quality guarantee, which distinguishes it from its competitors. Benefits of GIs include standardized processes, increased production, and more employment for locals. More than 1,000 new Chinese enterprises got approval to use GI products last year alone, a 195 percent increase over the same period of the previous year. The output value of enterprises using GIs totalled 639.8 billion yuan in 2020, Zhang noted.

Apart from enterprises, Chinese farmers also harvest benefits of GI products. Since last year, the administration has invested more than 10 million yuan in 43 poverty-stricken counties in 17 provinces in the nation’s central and western regions to cultivate 21 GI project developments. One example is Sangzhi White Tea, which was listed as a GI product in 2019. Since 1994, the administration has dispatched a group of officials to Sangzhi county, Central China’s Hunan province, to assist local poverty alleviation efforts. The white tea industry in the county has developed quickly since it acquired the GI label. More factories and farmers are now involved in tea production and marketing.

On November 6, 2019, China and the EU signed the Joint Statement on Concluding the Negotiation of the Agreement on the Protection and Cooperation of the Geographical Indications between China and the European Union. The mutual recognition protection of the China-EU geographical indication products begins. It is expected that 275 geographical indications from both sides will be mutually recognized by 2024 according to the Agreement. The EU list of GI products to be protected in China includes products such as Champagne, Irish whiskey, Münchener Bier, Barolo Wine, Grana Padano, and Prosciutto di Parma.
Aside from the above way of mutual recognition of geographical indications, geographical indication trademarks could also be protected in the following ways in China.

  • One is to be protected as certification marks or collective marks under the China Trademark Law, regulated by the National Intellectual Property Administration, PRC.
  • One is to be protected as geographical indications under the relevant Regulations on Protection of Geographical Indication Products, regulated by the CNIPA as well.
  • Another one is to be protected as geographical indications under the Administration of Geographical Indications for Agricultural Products, regulated by the Ministry of Agriculture and Rural Affairs of the PRC. Such geographical indications are mainly about agricultural products.

It is efficient to file the applications for the geographical indications before the relevant official institutions to have a better active protection.
However, if the geographical indications have not been officially applied or registered, they will still enjoy some extent of protection against unauthorized use by third party under relevant laws, such as the China Trademark Law, Anti Unfair Competition Law, Food Safety Law, and Products Quality Law.

Article 16, in the event that a trademark containing a geographical indication of goods misleads the public for the goods does not come from the location as stated in the indication, such trademark shall not be registered and shall be prohibited from being used. However, if the registration has been obtained in goodwill, such registration shall continue to be valid.
From this aspect, use of the geographical indications by others not from the place of origin, misleading consumers, and use of the mark containing foreign geographical names well-known to the public will not be allowed.

There are certain documents and requisites for registration in China such as original power of attorney signed by the applicant, tenet of using the trademark, rights and obligations for using the trademark, documents describing in detail the particulars of the applicant’s or its entrusted organization’s professional technicians, professional inspection and testing equipment and regulations for the administration of the use of a certification trademarks.
With regard to fair market access, the US is concerned about the possible negative impact of agreements on geographical indication protection signed between China and other international regions. More directly, the “EU–China Agreement on cooperation on and protection of geographical indications” (China–EU agreement) reached on November 4 2019 should not hinder the export of US goods and services using trademarks and generic terms to the Chinese market.

According to published text of the China–EU Agreement, the agreement contains only 14 articles, but in fact, it sets a quite high level of protection requirements and rules for geographical indications. In the appendix of the statement, 275 geographical indication products (175 of these will be added by China and the EU as planned four years after the agreement comes into force), with regional characteristics that need to be protected by each other are also included.

Conclusion
Regarding respect for the prior trademark rights, it should be noted that the State Intellectual Property Office of China revised “the Measures for the Protection of Foreign Geographical Indication Products” (measures) on November 27 2019. Article 5 of the new measures stipulates the objects to be protected by geographical indication products in China, and additionally adds the provisions that the geographical indication products to be protected shall not conflict with other prior rights. Among them, the so-called ‘other prior rights’ naturally include trademark rights. This means that for new protected geographical indications abroad, if their obliges seek to obtain extended protection in China, they will experience more rigorous examination than before, and the difficulty of obtaining rights will increase.

For the protection of geographical indications, especially for the reasonable scope of protection, China should put forward its own compromise, which is helpful to bridge the differences. In the world market, we need to advocate a more rational, pragmatic and intelligent attitude and way to look at the real needs and expectations of consumers, and continue to promote the formation of a more balanced and reasonable scheme and criteria for geographical indication protection that can be basically accepted by all parties.

Author: Tanya Saraswat, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

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