Geographical Indications: Protection Without Registration

Geographical indications (GI) of origin are also protected in China if they are recognised as geographical indications in their country of origin but are not registered in China as a certification or collective trademark. GIs are protected against applications in bad faith by Article 16 of the Trademark Law. Article 123 of the General Provisions of the Civil Law of the PRC lists GIs of origin as a fundamentally protected intellectual property right. There is no law that states that GIs must be registered to enjoy protection. Therefore, in practice, the most relevant factor in deciding whether protection is granted is whether the GI actually enables the relevant public to identify the source.

Example wines: when assessing whether protection is granted, the courts examine not only whether the GI is legally protected in its country of origin, but also the standards for the wines of the area in the Official Journal and the place of origin, including its natural and humanistic characteristics. The degree of familiarity in the relevant public is also important, and thus an assessment of whether the use of the GI by producers from other countries and regions would lead to confusion among Chinese consumers.

The courts take into account numerous different kinds of evidence on how a GI is perceived by the Chinese public. This gives original manufacturers the opportunity to take action against infringers of their rights. The protection of GIs in China is therefore not per se dependent on registration as a collective or certification trademark. Registration is nevertheless recommended to facilitate the enforcement of rights.

 

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