On 18 September 2023, the China National Intellectual Property Administration (CNIPA) issued the revised Provisions on Protection of Geographical Indication (GI) Products (Revised Provisions) for public comment by 2 November 2023.
According to the revised note concurrently issued by the CNIPA, by the end of June 2023, a total of 2,498 geographical indication products had been approved, and a total of more than 25,000 business entities had been authorized to use the geographical indication special marks, under the current Provisions on the Protection of Geographical Indication Products, which were formulated and implemented by the former General Administration of Quality Supervision, Inspection and Quarantine back in 2005.
To meet the real needs of the protection of geographical indication products, this revision mainly involves the following four aspects: 1) revising the provisions related to the duties of competent department, to match the reform of governmental institutions; 2) perfecting the review process and optimizing the procedures of reviewing and determining, administrative adjudication and use of the special mark; 3) strengthening the management of geographical indication products and clarifying the obligations of the producers and the responsibilities of the local intellectual property rights management departments in the daily supervision of the products; and 4) strengthening the protection of the geographical indication products and upgrading the level of protection.
Specifically, the main revised provisions include:
I. Clarifying the basis of superior law and departmental responsibilities
Article 123 of the PRC Civil Code implemented in 2021 treats geographical indications as one of the objects of intellectual property rights, and the special marks for geographical indications can be protected by the Trademark Law. Therefore, Article 1 of the Revised Provisions further specifies the superior law basis as the Civil Code, the Trademark Law, the Product Quality Law and the Standardization Law.
And Article 5 of the Revised Provisions specifies that the CNIPA is responsible for the management and protection of geographical indication products and special marks throughout the country, it uniformly accepts and examines applications for the protection of geographical indication products, and recognizes geographical indication products, and that local intellectual property administration departments are responsible for the management and protection of geographical indication products and special marks within their administrative regions.
II. Clarifying the applicants’ management responsibilities and the producers’ obligation to produce according to standards
Article 9 of the Revised Provisions states that the governments at or above the county level, or their designated social organizations shall act as the applicants for filing applications for the protection of geographical indication products. Articles 25 and 34 provide that, after a geographical indication product has been granted protection, the applicant shall take measures to manage the use of the name and special mark of the geographical indication products, as well as the quality of the products; producers within the scope of origin shall organize production in accordance with the corresponding standards, and producers failing to produce in accordance with the standards will be deregistered from the register of use of the special mark.
III. Improving examination standards and procedures for geographical indication products
Article 3 of the Revised Provisions specifies that geographical indication products should have authenticity, territoriality, specificity and associativity. According to Article 8, protection will not be granted, if:
i) the product or product name violates the law, is contrary to public order and morals or is detrimental to the public interest;ii) the product name is only the common name of the product;iii) the name of the product is a registered trademark of others, unregistered well-known trademarks, misleading the public;iv) the name of the product is the same as the name of the geographical indication product that has been protected, which leads to the public confusion as to geographical origin of the products;v) the name of the product is the same as the name of the state-validated plant varieties or animal breeding, leading to public confusion as to geographical origin of the products;vi) the product violates the requirements of safety, health and environmental protection, and may cause harm to the environment, ecology and resources.
Further, the Revised Provisions refine the procedures for filing, consultation, consideration and determination (Articles 16 and 17) and provide for relief procedures (Article 19). Procedures for modification and cancellation have also been newly added to the Revised Provision.
IV. Optimizing the authorized use of the geographical indication special marks
According to Article 23 of the Revised Provisions, the applications for authorized use of the special marks are accepted, reviewed, registered and announced by the provincial intellectual property management department, and then recorded by the CNIPA.
In the current practice, the applications for the use of the special marks are examined and announced by the CNIPA, and it is obvious that such a revision is intended to improve the working efficiency and facilitate the parties.
V. Improving the protection system of geographical indication products
The Revised Provisions require that the governments where geographical indication products are located establish and improve the protection system of geographical indication products, including the standard system, testing system and quality assurance system. And intellectual property management departments should actively guide and promote the use of geographical indication products.
VI. Strengthening the protection of geographical indication products
Article 33 of the Revised Provisions lists the following specific illegal acts:
i) using the names of geographical indication products without authorization;ii) using the names of geographical indication products, without complying with the requirements of geographical indication product standards and management specifications;iii) using or forging the special marks without authorization;iv) using the name of the protected geographical indication product for the same or similar products not originating in the region, even if the real place of origin has been indicated, or a translated name is used, or it is accompanied by the words such as “type”, “style” and other such expressions;v) using the names or logos that are similar to the special marks and are easily cause misunderstanding, as well as words or patterns that may mislead consumers, so that consumers will mistake the product for a geographical indication product;vi) selling the above products.
In the case of any acts above, the department responsible for the enforcement of geographical indications will order the immediate cessation of the illegal acts, confiscate the amount of illegal business, and/or impose a fine of up to RMB100,000.