China trademark: China improves rules on protection of foreign GI products
Protection of geographical indications (GIs) has attracted increasing attention from the governments of various countries, and GIs have become one of the key issues that led to the creation of an important component of bilateral and multilateral international trade agreements. According to the 1994 Agreement On Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement), GIs are defined as "indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."
In China, a GI can be protected as a certification or a collective trademark. In addition, to facilitate equal protection of foreign GIs and domestic GIs in China, the China General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) issued Measures on the Protection of Foreign GI Products (measures) on March 28 2016. In response to the recent development and practice in this area, on November 28 2019, the China National Intellectual Property Administration (CNIPA) promulgated the revised measures.
In general, the revised measures reflect the restructuring of Chinese government bodies. In 2018, the AQSIQ was restructured as part of the State Administration for Market Regulation, and all GI-related affairs were transferred to the CNIPA. Accordingly, in the revised measures, replacing the AQSIQ, the CNIPA has become the regulatory body that centrally and uniformly manages the protection of foreign GI products in China.
To simplify the application process, the revised measures eliminate the requirement for a GI applicant to submit recommendation documents issued by the competent authority of the country of origin, together with a Chinese translation of such recommendation documents which needs to be notarised.
Under the old measures, the protection of GIs was granted on the basis of reciprocity, which is limited to products that originate from countries that have established the relevant cooperative relationship with China. In addition to the principle of reciprocity set forth in the old measures, the revised measures specify that applications for foreign GI product protection in China should also be processed in accordance with the agreements signed by their countries and China or the international treaties which both countries have joined. Typically, bilateral agreements or international treaties provide direct protection for foreign geographical indications, while the principle of reciprocity will allow foreign geographical indications to obtain protection after the CNIPA's examination and approval. It is worth mentioning that the EU and China recently concluded a landmark agreement on the reciprocal protection of Geographical Indications (GIs) on November 6 2019. According to the agreement, there are 100 GIs from each side to be protected. The EU list of GIs to be protected in China includes well-known wines and foods such as Cava and Bordeaux wines, and Feta cheese. Four years after the agreement takes effect, an additional 175 GI products will be added to their respective lists.
Notably, the old measures stipulated that the applicant of a foreign GI may designate its Chinese branch or an official at the embassy of the originating country or region in China as a point of contact, which is required for the registration procedure and management of the GI. In comparison, the revised measures explicitly added the designation of an agent, which will permit Chinese law firms or IP agencies to be a point of contact and involved in the entire process.
Other primary differences between the old measures and the revised measures are summarised as follows:
The revised measures provide additional grounds for the CNIPA to revoke protection for a recognised foreign GI product. Pursuant to Article 33 of the revised measures, the CNIPA may revoke protection of a recognised foreign GI product if the GI is considered as a generic name in China or if it is becoming a generic name. The revised measures added Articles 34 and 35 to prescribe more comprehensive procedures related to revocation of GI protection. According to Article 34, the CNIPA will not accept the request for revocation if (1) there are no clear and specific reasons and facts for revocation, or (2) the GI only evolves into a generic name abroad. In this regard, the CNIPA shall notify the requester in writing and explain the reasons. Article 35 stipulates that the CNIPA shall organise a GI expert committee to review and make a determination on the revocation request. If the decision is to revoke, the CNIPA shall issue a public announcement; if the determination is not to revoke, the interested parties shall be notified.
The measures emphasise the strict protection of geographical indications, which is conducive to strengthening the protection of foreign geographical indications in China, so as to fulfil Chinese international protection obligations. Through strict protection, the interests of foreign geographical indication applicants and consumers can be better protected, which inevitably optimises the business environment and demonstrates China's determination to strengthen the protection of intellectual property rights and further expand opening up.
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