China’s quality watchdog, the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) promulgated on March 28, 2016, the long-awaited “Measures on the Protection of Foreign Geographical Indications Products” (the Measures).
The drafting of these Measures had been announced almost 11 years ago, in article 26 of the “Provisions for the Protection of Products of Geographical Indication” promulgated by AQISQ on May 16, 2005: “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”.
These Measures stipulate rules for the application, examination, approval, supervision, as well as protection, modification and revocation of foreign GI products seeking protection in China.
A restriction may be noted at first, in article 6 : the protection of GIs is granted on the basis of reciprocity i.e., to products that originate from a country that has established the corresponding communicative and cooperative relationship with China.
Who may apply for the registration of a foreign GI:
While in the 2005 Provisions the applicant for the registration of a domestic GI is designated by the local People's Government, the Measures stipulate that the applicant of a foreign GI shall be the "original applicant in the originating country or region", and that such applicant should be recommended by the competent authority in such country or region.
AQSIQ needs a point of contact for the registration procedure and management of the GI. 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.
Examination: formal and technical
While the 2005 Provisions only provide for one round of examination, the Measures provide for two: first a formality examination of the application documents (Chapter II) leading to acceptance of the application, and second a technical examination of the place of production, in the country of the applicant (Chapter III), leading to approval.
The formality examination:
Article 9 and 10 of the Measures detail the formality and substance requirements of an application (name, address, official certificate of the GI granted in the originating country, recommendation document by the competent authority, geographical scope of the GI, examination report by the originating country, quality characteristics and their relevance, evidence showing reputation etc.). All documents needs to be duly and officially translated in Chinese.
Article 11 provides that AQSIQ shall make the formality examination within (maximum) 30 days. It may either 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 Article 12 to Article 16. Any foreign or domestic organization or individual may submit a written opposition to AQSIQ within the period of opposition (Article 12). If the opposition is deemed justified, the administration notifies the applicant. The opponent and the applicant may negotiate either on their own or under AQSIQ’s coordination. If the negotiation fails, the opposition is decided by a GI expert panel convened by the administration (Article 14).
AQSIQ may also reject the opposition if 1) the opposition is not filed within the statutory time limit, or 2) the opposition lacks clear grounds, or factual or legal basis (Article 15).
If the opposition is dismissed, the opponent may still apply for review with AQSIQ within 30 days upon receipt of the notice. The AQSIQ shall render a review decision within 60 days and notify the applicant in writing. The review decision, however, is final (Article 16).
The Measures do not specify that AQISQ refusal decisions (refusal of a foreign GI application or rejection of an opposition) are subject to appeal before the judicial authority, but this is of course the case, pursuant to the Administrative Procedure Law of China.
The technical examination:
If there is no opposition, or if the applicant and the opponent have managed to reach a consensus or if the opposition is eventually dismissed by AQSIQ, the application goes through a technical examination (Article 17), which shall consist of meeting examination and necessary production place verification (Article 18). It is further stipulated that the technical examination team shall consist of 5 to 7 members. The applicant needs to provide translators and invite technical experts familiar with the product to be present during the examination (Article 19).
AQSIQ may either approve the application, or order the applicant to modify the application documents for another round of technical examination, or reject the application should it fail the technical examination (Article 20)
Supervision by AQSIQ
Once the GI is registered, the owner may apply to AQSIQ for the right to use a symbol, a "special mark" created by AQSIQ indicating that the product is protected by GI (Article 22-24). This is not an obligation (as this seems to the case for domestic GI owners, who may lose their GI if they do not use the special mark for a period of 2 years).
The foreign GI owner must announce to the public in Chinese the laws and regulations and technical standards executed by the products (Article 25). (It may be noted that the same obligation applies to cases where a foreign GI is filed as a collective trademark).
The foreign GI owner has the obligation to formulate and implement management measures, and to submit to AQSIQ an annual report on such management measures adopted for the year, and the implementation of such measures implemented in the preceding year (Article 27).
In case of major negative incident, the AQSIQ may organize further verification of the quality characteristics and conditions of the place of production (Article 28).
As to the protection, the Measures do not provide much more details than the Provisions for domestic GIs. AQSIQ and provincial quality inspection authorities shall accept complaints on infringement and shall investigate and punish in accordance with the law.Foreign GI owners may also seek judicial remedy from the people’s courts.
Foreign GI products that are granted protection in China may also be subject to revocation if any of the three below conditions is met (Article 33): (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.
It is probably too early to review the practice resulting from foreign GI owners applying for a registration with AQSIQ.
The Measures seem to have been inspired, to a certain extent, by the precedent Opinions regarding the registration of domestic GIs. The opposition procedure, for example, seems to make more sense for a domestic application, since it is easily conceivable that several entities might be competing, in China, for the exclusive right to use a certain geographical indication. However, since the only possible applicant of a foreign GI in China is the entity that is already granted such exclusive use in its own country, the grounds of oppositions are less foreseeable.
The other main difference is the technical examination, with the team of 5 to 7 members (why so many?) in charge of checking the production place. Once the national competent authority has granted a GI, it is rather difficult to understand on what technical grounds a team of foreign visitors could decide to verify and challenge such grant.