October started with a week of celebrations for the 75th anniversary of People's Republic of China and a new GossIP number!

You might have heard that recently Fabbri entered the very exclusive "club" of foreign companies having a famous packaging that enjoy a "certain (high) reputation" in China.

Read how HFG managed to win the litigation and helped Fabbri to gain the recognition.

The second article deal with the important agreement on Geographical Indication finally signed, after 8 years, between Europe and China. The agreement will ensure a protection of 100 EU geographical indications in China, and 100 China GI's in Europe.

Loads of data-based information products have fully integrated in our daily life, and a law that can manage and supervision the data security and protection is required. In July 2020 the Draft of the Data Security Law has been published, putting forwards clear requirements for the security.

The last article is about all you must know on prepackaged food labeling standards. There are some interesting news regarding definitions, nutrition value and labeling contents, that contribute to make this Draft for comments a more precise and stricter list of rules for the national food safety.

Enjoy the reading! Stay warm and safe!

Fabbri's Packaging recognized "famous" in China

By Fabio Giacopello and Summer Xia

With decision issued on July 29 2020 and notified to the parties on August 11 2020 Shanghai Yangpu District People's Court (herein refer to as the Court) has recognized Fabbri's packaging -bearing the famous blue-and-white "faentino" decoration- as enjoying high reputation to the extent of art. 6.1 of Anti-Unfair Competition Law ("AUCL").

In November 2019 Fabbri (Shanghai) Food Trading Co., Ltd. (herein referred to as Fabbri Shanghai) has initiated a civil litigation against Yi Pai Chocolate (Tianjin) Co., Ltd. (herein refer to as Yipai) and Beijing Jin Mai Xing Long Food Co., Ltd. (herein referred to as Jinmai) claiming the violation of the art. 6.1 of Anti-Unfair Competition Law due to a slavish imitation of its famous packaging.

The Italian century-old Fabbri brand has set up a company in Shanghai in the year 2009 and since then has constantly developed the Chinese market.

In the year 2019, Fabbri Shanghai sued Yipai and Jinmai for use of packaging with decorative features with a "blue-and-white theme" which are confusingly similar to those used in the Fabbri's packaging.

The case at issue relates to the packaging of certain Fabbri products such as ice cream preparations.

Herein a photo of the original Fabbri packaging where the distinctive faentino decoration has been applied to the side of the packaging.

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The photo herein on the contrary shows the use done by Yipai of the similar unregistered decoration.

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Reading the Court decision, we found that the judges approached the decision through a three steps reasoning.

  1. Is Fabbri Shanghai's product packaging enjoying certain influence in the Chinese market?
    The court held that, due to Fabbri Shanghai's long-term and extensive promotion as well as a large number of marketing and selling activities, Fabbri packaging enjoys certain influence.
  2. Is Yipai product packaging similar to Fabbri Shanghai's product packing?
    The court held that based on overall visual effects, Yipai product packaging is similar to Fabbri Shanghai's product packaging.
  3. Would there be confusion among the relevant public?
    The court held that relevant public might confusingly believe that there are connections between the defendants and Fabbri Shanghai due to the similarity of both parties' product packaging.

Comments

It is worth mentioning that a typical bottle neck in such kind of cases is the difficulty to obtain the recognition by the Court that the packaging is largely known to consumers.

Under the previous legislation (in force until 2017) it was required that the object of protection was "famous". Under the current AUCL the word "famous" has been substituted with the sentence "enjoy certain (high) reputation".

To prove such high reputation, it is necessary to provide the court with a large amount of evidence of use. Therefore, in such kind of cases the plaintiff has to contribute with a massive work of evidence collection starting from the time in which the company entered the market and with special focus on the last 3-5 years.

Overall, we wish also to comment that cases decided by Chinese Courts under art. 6.1 of Anti-Unfair Competition Law due to a slavish imitation of unregistered product/packaging shape or passing off are rare and even more rare are cases in which foreign companies are awarded with such kind of protection.

We might be not-perfectly exhaustive due to certain characteristics of the publication system of the Court decisions, but we are only aware of the following prior cases involving foreign companies:

  • Ferrero Rocher (2006),
  • Crocs (2013),
  • Lego Friends (2017),
  • Rimowa (2016),
  • L'Occitane (2019),
  • Foreo (2019)
  • Ferrero Kinder Joy (2019).

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A very exclusive club in which a Shanghai Court - with a fair and clever judgement - has welcomed Fabbri Faentino decoration in the Covid summer of 2020.

HFG Law Firm represented Fabbri in the case.

100-100 GI Agreement China – EU: finally official!

By Summer Xia

On 20 July 2020, the EU Council adopted an agreement on Geographical Indications (GIs), namely the "Agreement between the European Union and the Government of the People's Republic of China on cooperation on, and protection of, Geographical Indications".

This agreement, which took eight years to be negotiated, is the first comprehensive and significant bilateral agreement signed between the EU and China in this field.

The agreement is of milestone significance for economic and trade cooperation between China and the EU. It will ensure that 100 EU GIs, such as Asiago, Prosciutto di Parma, and Soave, are protected in China, and 100 China GIs, such as Anji White Tea, Pixian Bean Paste and Yantai Apple, are protected in the EU (for a full list please refer to List of Geographical Indications).

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Further, the scope of protection will expand from 100 GIs to 275 GIs form each side after the agreement comes to force for four years. The agreement also has a mechanism which allows expansion of protectable GIs1 . European Commission Trade Commissioner Phil Hogan said that the agreement is a double win2.

It will help strengthen trade relations between Europe and China, benefit the agriculture and food industries as well as consumers on both sides.

The signature of the agreement has significant meanings.

First, the agreement shows that China-EU economic and trade relations have entered a stage of high-quality development. Both the EU and China have a long history of food culture with enriched agriculture industries and high-quality GIs.

For a long time, the scale of trade in agriculture and agricultural products between the EU and China is increasing steadily and quickly. The signature of the GIs agreement will bring more trading opportunities. The agreement shows a win-win spirit in bilateral trade relations.

Second, the agreement will benefit consumers by guaranteeing the origin, quality and authenticity of the product. GIs indicate goods that originated or produced in special areas and with certain conditions, such as special temperature, humidity, soil and so on. Thus, the goods produced there can have a special quality.

For example, only whiskeys that distilled and matured in Ireland can be labelled as "Irish Whiskey" and sold to China.

Further, according to this agreement "Once a geographical indication is protected under this Agreement, the products covered by that geographical indication may bear the official symbols of the geographical indication of the other Party in the territory of that Party"3. Symbols of GIs, especially from local authorities, help consumers to quickly identify high quality goods.

Third, the agreement shows that China has made positive progress in intellectual property rights protection. In China, GIs are mainly protected as certification and collective marks by the "China National Intellectual Property Administration" ("CNIPA"). This is a widely used form of protection in many countries.

There are also two other ways for GIs registration namely through the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China or the Ministry of Agriculture.

There are also two other ways for GIs registration namely through the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China or the Ministry of Agriculture.

However, after the agreement comes to force, GIs trademarks protected by this agreement can be protected under its identical or similar designated goods, even without registering in any of the above three regulatory bodies4.

In sum, the Agreement demonstrates the efforts made by both China and the EU to protect GIs and promote trade between the two sides.

It is foreseeable that the signing of the Agreement will provide stronger protection for GIs by both the CNIPA and the EU IP Offices and courts.

The Agreement is expected to enter into force by the end of 2020, we look forward to the implementation of it.

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Footnotes

1. Agreement between the European Union and the Government of the People's Republic of China on cooperation on, and protection of, geographical indications, Article 3 and Article 10 (3).

2. https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6200

3. Agreement between the European Union and the Government of the People's Republic of China on cooperation on, and protection of, geographical indications, Article 5.2.

4. Agreement between the European Union and the Government of the People's Republic of China on cooperation on, and protection of, geographical indications, Article 5.3 and Article 6.

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.