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13 February 2017
On March 28 2016 China's quality watchdog, the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), promulgated the long-awaited Measures on the Protection of Foreign Geographical Indications Products.
The drafting of these measures had been announced almost 11 years previously, in Article 26 of the Provisions for the Protection of Products of Geographical Indication, promulgated by the AQSIQ on May 16 2005. This stated: "The AQSIQ shall accept the applications for registration of foreign geographical indications in the People's Republic of China and accord the protection thereto. Specific provisions to this effect shall be separately formulated."
The new measures stipulate rules for the application, examination, approval, supervision, protection, modification and revocation of foreign geographical indications for which registration is sought in China.
However, as noted in Article 6, registration of geographical indications is granted "on the basis of reciprocity" (ie, to products originating from countries that have "established the corresponding communicative and cooperative relationship with China").
While under the 2005 provisions the applicant for the registration of a domestic geographical indication should be designated by the local people's government, the Measures on the Protection of Foreign Geographical Indications Products provide that the applicant for the registration of a foreign geographical indication should be the "original applicant in the originating country or region" and that such applicant should be recommended by the competent authority in the originating country or region.
The AQSIQ requires a point of contact for the registration and management of the geographical indication. Article 8 provides that the applicant may designate "its Chinese branch" or "an official at the embassy of the originating country or region in China" – excluding Chinese law firms or IP agencies.
While the 2005 provisions provide for only one round of examination, the Measures on the Protection of Foreign Geographical Indications Products provide for two:
Articles 9 and 10 of the new measures detail the formality and substance requirements of an application, including:
All documents must be duly and officially translated into Chinese.
Article 11 provides that the AQSIQ must conduct the formality examination within maximum 30 days. The AQSIQ may accept the application, order the applicant to make supplements or amendments (followed by a second formality examination) or reject the application.
Once accepted, the application is published on the AQSIQ website. Oppositions can be filed during a period of 60 days after the publication date.
The opposition and review procedure is laid out from Articles 12 to 16. Any foreign or domestic organisation or individual may submit a written opposition to the AQSIQ within the opposition period.(1) If the opposition is deemed to be justified, the AQSIQ will notify the applicant. The opponent and the applicant may then negotiate either privately or under the AQSIQ's coordination. If the negotiation fails, the opposition is decided by a geographical indication expert panel convened by the AQSIQ.(2)
The AQSIQ may also reject the opposition if it is not filed within the statutory timeframe or if it lacks clear grounds or factual or legal basis.(3)
If the opposition is rejected, the opponent may apply for review with the AQSIQ within 30 days of receiving the notice. The AQSIQ will render a review decision within 60 days and notify the applicant in writing. The review decision is final.(4)
Although the new measures do not specify whether the AQISQ's decision to reject an application or opposition is subject to appeal before the judicial authority, this is certainly the case pursuant to the Administrative Procedure Law of China.
If there is no opposition, if the applicant and the opponent reach a consensus or the opposition is rejected by the AQSIQ, the application will undergo a technical examination,(5) which consists of "meeting examination and necessary production place verification".(6) The measures further provide that the "technical examination team shall consist of 5 to 7 members". The applicant must provide translators and invite technical experts familiar with the product to be present during the examination.(7)
The AQSIQ may accept the application, order the applicant to modify the application documents (followed by another technical examination) or reject the application if it fails the technical examination.(8)
Once the geographical indication is registered, the owner "may apply to AQSIQ for the right to use a symbol" or "special mark" created by the AQSIQ to indicate that the relevant products are protected by a geographical indication.(9) Use of the special mark is not obligatory for foreign geographical indication owners – unlike domestic geographical indication owners, which may lose the geographical indication if they do not use the special mark for two years.
A foreign geographical indication owner "must announce to the public in Chinese the laws and regulations and technical standards executed by the products".(10) The same obligation applies where a foreign geographical indication is filed as a collective trademark.
The foreign geographical indication owner must also formulate and implement management measures, submitting to the AQSIQ an annual report on the measures adopted for the upcoming year and measures implemented in the past year.(11)
In the case of a major negative incident, the AQSIQ may undertake further verification of quality characteristics and conditions at the place of production.(12)
Regarding protection, the new measures on foreign geographical indications do not elaborate on the provisions for domestic geographical indications, which state that the "AQSIQ and provincial quality inspection authorities shall accept complaints on infringement and shall investigate and punish in accordance with the law". Foreign geographical indication owners may also seek judicial remedy from the people's courts.
Foreign geographical indications that are registered in China may be subject to revocation under any of the following conditions:
"(1) the protection in the originating country or region is revoked, (2) the protection in China is revoked by a decision of the judiciary, (3) the product is in grave violation of China's laws, regulations or other provisions".(13)
It is still too early to review the practice of registering foreign geographical indications with the AQSIQ.
The new measures seem to have been inspired, to some extent, by the precedent opinions on the registration of domestic geographical indications. For example, the opposition procedure seems to make more sense for a domestic application, since it is easily conceivable that several owners might be competing for the exclusive right to use a certain geographical indication in China. However, since the only possible applicant of a foreign geographical indication in China is the owner that has already been granted exclusive use in its originating country, the grounds for opposition are less foreseeable.
The other main difference is the technical examination, with a team of five to seven members charged with checking the place of production. It is unclear why so many members are necessary. Once the national competent authority has granted a geographical indication, it is difficult to foresee the technical grounds on which a team of foreign visitors could decide to verify or challenge such grant.
For further information on this topic please contact Paul Ranjard, Yongjian Lei or Nan Jiang at Wan Hui Da Law Firm & Intellectual Property Agency by telephone (+86 10 6892 1000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Wan Hui Da Law Firm & Intellectual Property Agency website can be accessed at www.wanhuida.com.
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