On September 18, 2023, China’s National Intellectual Property Administration (CNIPA) issued the Draft Regulations on the Protection of Geographical Indication Products for Comment (地理标志产品保护规定（征求意见稿)). The Draft moves the examination and approval process from the General Administration of Quality Supervision, Inspection and Quarantine to the CNIPA, introduces a good faith requirement and adds a detailed examination process.
Some highlights of the Draft include:
- New Article 3 explaining the requirements for geographical indication products:
Article 3 Geographical indication products should have authenticity, regionality, specificity and relevance.
Authenticity means that the name of a geographical indication product has been used continuously for a long time and has a reputation that is generally recognized by the public. Regionality means that all or the main production links of geographical indication products should occur within a limited geographical scope. Specificity means that the product has obvious quality features, specific reputation or other characteristics. Relevance means that the specificity and reputation of a product are determined by the natural and human factors of a specific region.
- Per Article 5, CNIPA takes over responsibility for the management and protection of geographical indication products from the General Administration of Quality Supervision, Inspection and Quarantine.
- Article 6 introduces a good faith requirement:
Article 6 …The principle of good faith shall be used when applying for geographical indication product protection and using geographical indication product names and special marks.
- Article 8 adds reasons for rejecting protection of geographical indication products:
Article 8 In any of the following circumstances, geographical indication product protection will not be granted:
(1) The product or product name violates the law, violates public order and good customs , or harms public interests;
(2) The product name is only the common name of the product;
(3) The product name is a registered trademark or an unregistered well-known trademark of others, misleading the public;
(4) The product name is the same as the name of a product that has been protected by a geographical indication, causing the public to misunderstand the geographical origin of the product ;
(5) The product name is the same as the nationally approved plant variety or animal breeding name , causing the public to misunderstand the geographical origin of the product;
(6) Products that violate safety, health, and environmental protection requirements and may cause harm to the environment, ecology, and resources.
- New Article 17 provides a process for resolving third party objections to a geographical indication.
Article 17 After receiving the objection request, the CNIPA will promptly notify the applicant and submit relevant materials . Objections shall be resolved through negotiation between the two parties; or theCNIPA shall organize the parties to negotiate and resolve the objection. If the negotiation fails, the CNIPA shall organize an expert committee on geographical indication products to make a decision after deliberation.
If the objection is established, the application for protection of the geographical indication product shall be rejected, and the opponent and the applicant shall be notified in writing; if the objection is not established, the objection request shall be rejected, and the opponent and the applicant shall be notified in writing.
- Articles 18 and 19 explain CNIPA’s examination procedures
Article 18 The Expert Review Committee for Geographical Indication Products of theCNIPA shall conduct a technical review of applications that have no objections or have objections but the objections are not established. The technical review includes meeting review and necessary origin verification, and the applicant shall cooperate.
During the review process, if theCNIPA believes that the content of the application for geographical indication product protection needs explanation or correction, it may require the applicant to make explanations or corrections.
If the application passes the review, theCNIPA will issue a recognition announcement; if the review fails, the application for protection of the geographical indication product will be rejected and the applicant will be notified in writing.
Article 19 If the applicant is dissatisfied with the decision to reject the protection application, he may request a review from theCNIPA within thirty days from the date of receipt of the notice. The CNIPA will make a decision within two months from the date of receipt of the reexamination application and notify the applicant in writing.
If the applicant is dissatisfied with the review decision, he may file a lawsuit with the People’s Court within six months from the date of receipt of the notice.
- New Article 25 introduces an annual reporting requirement:
Article 25 Producers within the scope of production areas shall organize production in accordance with corresponding standards. Other units or individuals may not use protected geographical indication product names or special signs without authorization.
After a geographical indication product is protected, the applicant shall take measures to manage the use of geographical indication product names and special marks, product characteristics and quality, etc.
An annual reporting system is implemented for the protection of geographical indication products. Before the end of March each year, applicants must report to the CNIPA the status of geographical indication product protection in the previous year.
New Article 30 introduces an invalidation process for granted geographical indication products:
Article 30 From the date when the CNIPA issues an issuance announcement, any unit or individual may request the CNIPA to revoke it and provide relevant evidence and materials:
(1) It is a common name in my country or has evolved into a common name;
(2) The product name violates the law, violates public order and good customs, or harms public interests;
(3) Products that violate safety, health, and environmental protection requirements and may cause harm to the environment, ecology, and resources;
(4) Obtaining protection by deception or other unfair means.
- Article 33 allows for fines of up to 100,000 RMB and confiscation of illegal revenue for several reasons:
Article 33 Anyone who commits the following acts shall be ordered by the department responsible for the law enforcement of geographical indications to immediately stop the illegal activities. If there is an illegal business amount, the illegal business amount shall be confiscated. If the circumstances are serious, a fine of not more than five times the illegal business amount and no more than ten years may be imposed. A fine of 10,000 yuan; if there is no illegal business volume or the illegal business volume is less than 50,000 yuan, a fine of less than 50,000 yuan may be imposed:
(1) Using the name of a geographical indication product without authorization;
(2) Using the name of the geographical indication product without complying with the requirements of geographical indication product standards and management regulations;
(3) Using or forging special signs without authorization;
(4) Use the protected geographical indication product name on the same or similar product that is not produced in this region, even if the true place of origin has been indicated, or a translated name is used, or it is accompanied by words such as “species”, “type”, and “style” and other expressions;
(5) Using names or logos that are similar to special marks and are easily misleading, as well as text or pattern marks that may mislead consumers, causing consumers to mistake the product for a geographical indication product;
(6) Selling the above products.
The full text is available here (Chinese) and here (English): Draft Regulations on the Protection of Geographical Indication Products. Comments are due November 2, 2023.