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International Law

: IP Dragon

Cheese With A Double Identity Crisis: Dutch, No Chinese, No Kiwi

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Last Saturday this consumer strolled through the Park N Shop Super Store in Tsuen Wan, near the Tsuen Wan MTR line towards Central, Hong Kong, and was confused not once, but twice.

Firstly, because when he saw Edam on the package, he associated the cheese with the city in the Netherlands with the same name. Edam cheese, one assumes, is produced in Edam. However, when he read the promotional line: "A smooth Dutch-style cheese with a light fresh flavour" he knew his association was a mistake, since it is not a real Dutch cheese, but only Dutch-style.

Intrigued by the origin of the cheese, (and flattered by the combination of the words Dutch and style) he was looking for clues of the place of origin of the cheese. When one is in Hong Kong and reads 'Mainland', in the lion's share of cases the People's Republic of China is meant. Therefore yours truly was confused for the second time, since the manufacturer is a New Zealand company named Mainland, based in Dunedin.

Against this kind of confusion the Agreement on Trade-related aspects of Intellectual Property Rights (TRIPs) mandates protection via Geographical Indication (GI)'s. According to the World Intellectual Property Organization (WIPO) a Geographical Indication (GI) is "[...] a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin." Read more here.

The best article I have ever read about GI's was written by Professor Justin Hughes of the Cardozo School of Law, Yeshiva University of New York. Professor Hughes proposes three basic purposes of GI's: (1) to communicate geographic source, (2) to communicate (nongeographic) product qualities, and (3) to create evocative value. Read his excellent article 'Champagne, Feta, and Bourbon - the Spirited Debate About Geographical Indications'.

Professor Hughes describes the two basic approaches in national

law protecting GIs: "either a free-standing appellations law or the use of certification marks within trademark law." So appellations law, which is used in the EU versus certification marks, which is used in the US. China seems to side with EU on this issue, but on second thought it is more complicated.

How does China protect geographical indications?

The State Administration of Industry and Commerce (SAIC) is protecting it via the trademark law, implementing regulations for the trademark law, measures regarding the registration and administration of collective marks and certification marks.
The Administration for Quality Supervision Inspection and Quarantine (AQSIQ) protects it via the product quality law and standardization law
Ministry of Agriculture via administrative measures.

Read more about China's solution to protect GI's in Jinhua Ham's article 'Application of geographical indication systems in China' here.

So China seems to protect GI's via three separate administrative institutions. This could on the one hand cause some coordination problems in the protection of GI's and ambiguity for manufacturers of agricultural produce about how to product their GI, and on the other hand it could increase competition between these administrative institutions, which could ameliorate the quality of protection.

Read more about China's views on GI's here (IP Dragon) and here (WIPO magazine) and here (EU-China trade project).

For a confusing title read 'China owns 600,000 geographical indication trademarks for agricultural products' (People's Daily Online). In the article, however, you will find statistics that China had 531 geographical indications and 600,000 trademarked agricultural products at the time the article was published (2008).

Full post as published by IP Dragon on March 22, 2010 (boomark / email).