CNIPA publishes sorely needed draft rules on protection of GI products
On 18 September 2023 the China National Intellectual Property Administration (CNIPA) published the Regulations on the Protection of Geographical Indications Products, with a call for comments until 2 November 2023.
The current system for GI product protection in China comprises the Provisions on the Protection of Geographical Indications Products (15 July 2005) and the Measures on the Protection of Foreign Geographical Indications Products (28 March 2016, amended 28 November 2019).
The provisions apply to all GI products, while the measures provide special rules for the recognition and registration of foreign GI products. These two regulations focus mainly on the registration and administration procedures for GIs and refer to other laws such as the Product Quality Law or the Consumer Protection Law when it comes to protection.
On 24 September 2020, the CNIPA published a first draft revising both the provisions and the measures, which stipulated detailed procedures for the registration, opposition and cancellation of GIs, and contained other provisions conferring some limited enforcement powers to the CNIPA (eg, a warning and fine of 30,000 yuan).
While specific legislation on GIs is becoming increasingly necessary, drafting comprehensive laws takes time. Therefore, in order to cope with this growing urgency, the new draft regulations update the current regulation and provide more detailed rules for the registration, use and protection of GI products. The CNIPA also announced that specific rules concerning examination, use of special signs, supervision and administration of foreign GI products will be issued separately (Article 37).
Opposition and cancellation procedures
Article 17 describes the opposition procedure against the registration of new GI products, emphasising transparency and fairness. After receiving an opposition request, the CNIPA will promptly inform the applicant and forward the relevant materials. The draft also encourages dispute resolution through negotiation; in cases where no consensus is found, the CNIPA will convene an expert committee to adjudicate.
According to Article 19, applicants may request that the CNIPA review decisions to reject an application (this request must be filed within 30 days of the decision notification). The CNIPA’s decision is to be made within two months and is subject to appeal before the Beijing IP Court within six months.
Further, Article 30 introduces a cancellation procedure. Any organisation or individual may petition the CNIPA to revoke a registered GI product under certain conditions, such as it becomes generic or deceptive. Cancellation decisions can be appealed to the Beijing IP Court within six months.
With regard to the protection of GI products, the new draft outlines significant – and welcome – measures. While the 2020 draft gave very limited enforcement powers to the CNIPA (a fine of 30,000 yuan), Article 33 gives the authorities the power to immediately stop illegal activities and seize illegal proceeds. Serious violations may incur fines of up to five times the illegal gains, with a maximum fine of 100,000 yuan. For cases involving no proceeds or proceeds under 50,000 yuan, fines of 50,000 yuan may apply. If the infringing product’s seller has no knowledge of the infringement but provides information about the supplier, the seller is exempt from fines but the products should still be seized and destroyed.
Article 33(1)(4) prohibits the unauthorised use of a GI product name, even if the true origin of the product is mentioned. GI product names are not allowed to be registered as enterprise names (Article 38).
A promising future for GIs in China
These new rules will benefit all foreign GIs recognised in China, whether they are registered on their own initiative or whether they are protected under an international agreement to which China is a signatory (such as the EU China Agreement for the protection of GIs, from 14 September 2020).
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