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. Among the Chinese products, the list includes Ku'erle Xiang Li (Korla Pear), Pixian Dou Ban (Pixian Bean Paste), Pu'er Cha (Pu'er Tea) and Qianjiang Long Xia (Qianjiang Crayfish).
Geographical indication is becoming more important in international trade. What is geographical indication? According to Article 16 of China Trademark Law, the geographical indication refers to a sign indicating the place of origin of the goods of which the special quality, reputation or other characteristics are primarily determined by the natural conditions or other humanistic conditions of the location involved.
Since geographical indication is so important, how to protect it in China?
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 ("CNIPA").
- 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.
In the following, we discussed the geographical indications from the aspect of trademarks. We list the relevant articles from the China Trademark Law as reference:
Article 10.1.7, the signs of fraud that may easily mislead the public in the characteristics such as the quality of goods, or place of production shall not be used as trademarks.
Article 10.2, the geographical names of administrative divisions at or above the county level and foreign geographical names well-known to the public shall not be used as trademarks, except for geographical names that contain other meanings or constitute parts of a collective mark or certification mark. Where a trademark bearing any of the above-mentioned geographical names has been registered, it shall continue to be valid.
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.
<> In the table below, we list some examples of geographical indications registered as certification marks or collective marks in China.
Required information and documents
We list below the information and documents required for applications for collective marks or certification marks before the CNIPA.
- Collective mark of geographic indication:
1) Original Power of Attorney signed by the applicant;
2) Original certified copy of certificate of incorporation of the applicant (also known as "business license") or the notarized and legalized copy to prove their qualification;
3) Detailed name and address of the members of the association;
4) Regulations for the administration of the use of a collective mark in which the following information should be included:
A. Tenet of using the trademark;
B. Specific quality of the designated goods;
C. Procedure for using the trademark;
D. Rights and obligations for using the trademark;
E. Liability of violation;
F. System for supervising the quality of the goods.
5) Documents which could describe in detail the particulars of the applicant's or its entrusted organization's professional technicians, professional inspection and testing equipment, in order to show that the applicant has the capability to monitor the special quality of the commodity with the geographical indication;
6) Documents proving that the same mark has been registered and protected as a geographic indication under the same name of the applicant in the home country.
- Certification mark of a geographic indication:
1) Original Power of Attorney signed by the applicant;
2) Original certified copy of certificate of incorporation of the applicant (also known as "business license") or the notarized and legalized copy to prove their qualification;
3) Documents which could describe in detail the particulars of the applicant's or its entrusted organization's professional technician, the examining equipments and so on, in order to show that the applicant has the capability to supervise the quality of the commodity with the certification trademark;
4) Regulations for the administration of the use of a certification trademark in which the following information should be included:
A. Tenet for using the trademark;
B. Specific quality of the designated goods;
C. Qualification for using certification trademark;
D. Procedure for using the trademark;
E. Rights and obligations for using the trademark;
F. Liability of violation;
G. System for supervising the quality of the goods.
5) Documents proving that the same mark has been registered and protected as a geographic indication under the same name of the applicant in the home country.
Furthermore, when applying for registration of a geographic indication as a collective or certification trademark, the following details should be stated when filing applications:
A. Special quality, reputation or other characteristics of the commodity branded with the geographical indication;
B. Relation between the natural and cultural factors of the region indicated by the geographical indication and the special quality, reputation or other characteristics of the commodity; and
C. Scope of the region indicated by the geographical indication.
We will be happy to see that more geographical indications are protected in China, which will benefit the agricultural and food sectors and consumers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
