China: China Provides Further Protection of Geographic Indications

By Natasha Guo and Matthew Murphy – MMLC Group, Beijing

Since early in the 20th century, many countries have adopted regulatory systems to protect geographical indications. The "Agreement on Trade-Related Aspects of Intellectual Property Rights" (TRIPS) stipulates that geographical indications are indications which identify a good as originating from 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. TRIPS requires its members to provide legal tools to protect its geographical indications. China already has in place various regulations that provide some protection to geographical indications such as various provisions in the PRC Trademark Law and its Implementing Regulations and other geographic management regulations. The new Regulation on Protection of Products of Geographical provides certain powers to the particular government agencies to enforce various rights and regulations relating to geographic indications – they will supplement the legal regime providing various rights and avenues of recourse to entities wishing to obtain greater protection of special geographic indications (both Chinese and foreign).

France was the first country to enact legislation to protect geographic indications in 1935, given its wine industry and branding concerns. On July 14, 1992, the European Economic Community enacted Directive 2081/92 to protect geographical indications in relation to edible and non-edible farm produce. In 1999, India issued a "Law on Commodity Geographical Indications" to protect geographical indications. South Korea protects geographical indications by various provisions in its competition laws.

The USA usually treats geographical indications, whether domestic or overseas, as certification trademarks for protection. Whilst in Australia, geographical indications are protected according to national and state laws, foodstuff criteria and common law, etc.

At present, there are two ways to protect geographical indications in China, either under the PRC Trademark Law and/or by the State General Administration of Quality Supervision, Inspection and Quarantine under various administrative regulations and rules to protect the geographical indications

Article 16 stipulates that it is not possible to register a mark as a trademark for a product (or to use such a mark in commerce in the PRC), if that mark includes a geographical indication, the products do not actually originate from the place of geographical indication as indicated by the mark and the public will be misled as a result. Further, the Implementing Regulations state that geographic indicators can be registered as certification marks or collective marks.

The State General Administration of Quality Supervision, Inspection and Quarantine issued the Regulation on Protection of Products of Geographical Indications published on June 7, 2005. This new regulation provides a definition of products of geographical indication as follows – "Products of geographical indication refer to those products nominated by a geographical name after being examined and approved, originating from the specific region, whose quality, reputation or other characteristics depend on natural factors and humane factors of this producing area". This regulation provides that the State General Administration of Quality Supervision, Inspection and Quarantine is responsible for the protection of national products of geographical indication. Regional Entry-Exit Inspection and Quarantine Bureaus and local bureaus of quality and technical supervision are to be in the frontline in relation to ensuring compliance with the regulation. If a product needs to be protected, an application must be filed with the relevant government office and approval/registration for protection obtained. Both foreign and Chinese geographical indications can be protected under the new regulations.

If an entity obtains permission to use a geographical indication, but does not organize production according to the corresponding standards and management norms, or has not used the geographical indicator within 2 years, then the State General Administration of Quality Supervision, Inspection and Quarantine can cancel their geographical indication registration. In addition, for those who have violated provisions of the regulation, the Department of Quality and Technical Supervision and the Entry-Exit Inspection and Quarantine Department can fine them for their violations. If the violation is so serious that the acts constitute a crime, then those persons violating the regulation can be punished under the relevant criminal law provisions.

With the implementation of this regulation, it will be possible to protect Chinese products using geographical indications – it will be easier to check on the quality and characteristics of the products by noting the geographic indication – this has great benefits in relation to Chinese tea, Chinese medicine and herbal remedies, wins and beverages, etc. What’s more, the reputation and the market competitive ability of the product of geographical indication will be enhanced. The enacting of the regulation promotes the development of the industrialization of the products of geographical indication and establishes production standards and conditions.

This regulation came into force on July 15, 2005. We are looking forward to seeing how this regulation is implemented across the country. There could be some interesting developments:

• Hopefully, the Chinese government will harmonize the relationship between the Department of Quality Supervision, Inspection and Quarantine and the Administration of Industry and Commerce in order to iron out any inconsistencies that might exist in the application of the PRC Trademark Law provisions and the new regulation.
• If the new regulation is well promoted, Chinese citizens should increase their consciousness of obeying and using this regulation and be active in registration of geographical indications.
• The departments in charge of the protection of the products and the registration of geographic indications should be duteous and handle affairs impartially – there is significant scope for subjective decisions in the new regulations, so it is hoped that further objective criteria will be established and made public in the near future.

Given China’s entry into the WTO is a relatively event and that it is still refining regulations relating to some of the most basic WTO requirements, it is encouraging to see that due attention is being given to protecting geographic indicators – obviously as more and more Chinese companies export their products, it is vital that their famous geographical indicators are protected in order to ensure quality and reputation for years to come.

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