AGREEMENT BETWEEN THE EUROPEAN UNION AND THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA ON COOPERATION ON, AND PROTECTION OF, GEOGRAPHICAL INDICATIONS
THE EUROPEAN UNION, of the one part,
and
THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA, of the other part,
hereinafter jointly referred to as the "Parties",
CONSIDERING that the Parties agree to promote between them harmonious cooperation and the development of geographical indications as defined in Article 22(1) of the Agreement on Trade‐related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and to foster the trade of products carrying such geographical indications originating in the territories of the Parties;
HAVE DECIDED TO CONCLUDE THIS AGREEMENT:
Article 1
Scope of the Agreement
1. This Agreement applies to the cooperation on, and protection of, geographical indications of products which originate in the territories of the Parties.
2. The Parties agree to consider extending the scope of geographical indications covered by this Agreement after its entry into force to other product classes of geographical indications not covered by the scope of the legislation referred to in Article 2, and in particular handicrafts, by taking into account the legislative development of the Parties.
For the purposes referred to in the first subparagraph of this paragraph, the Parties have included in Annex VII names identifying products originating and protected in their territory that, upon enlargement of the scope of protection of this Agreement, shall be given priority for protection in accordance with the procedures set out in Article 3 of this Agreement.
The Parties shall review the progress made in enlarging the scope of protection of this Agreement within two years from the date of entry into force of this Agreement and conduct a review every two years thereafter.
Article 2
Established geographical indications
1. The Parties conclude that their respective legislation listed in Annex I to this Agreement establishes the essential elements for the procedure for registration and protection of geographical indications as defined by Article 22(1) of the TRIPS Agreement.
The Parties agree that the essential elements referred to in the first subparagraph of this paragraph are the following:
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(a) |
one or more registers listing geographical indications protected in the territory concerned; |
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(b) |
an administrative process verifying that a geographical indication identifies a good as originating in a territory, region or locality of one of the Parties, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin; |
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(c) |
a requirement that a registered name shall correspond to a specific product or products for which a product specification is laid down which can only be amended by due administrative process; |
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(d) |
control provisions applying to production; |
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(e) |
enforcement of the protection of registered names by appropriate administrative action by the public authorities; |
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(f) |
a right for any producer established in the area who submits to the system of controls to market products labelled with the protected name provided that the producer complies with the product specifications; |
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(g) |
an opposition procedure that allows the legitimate interests of prior users of names, whether those names are protected as a form of intellectual property or not, to be taken into account. |
2. Having examined the technical specifications set out in the form laid down in Annex II for the geographical indications of the People's Republic of China listed in Annex III, which have been registered by the People's Republic of China under its legislation listed in Annex I, the European Union undertakes to protect those geographical indications according to a level of protection no less than that laid down in this Agreement.
3. Having examined the technical specifications set out in the form laid down in Annex II for the geographical indications of the European Union listed in Annex IV, which have been registered by the European Union under its legislation listed in Annex I, the People's Republic of China undertakes to protect those geographical indications according to a level of protection no less than that laid down in this Agreement.
4. This Article applies without prejudice to any previous commitments of the Parties derived from the application of Article 3 of the TRIPS Agreement regarding National Treatment.
Article 3
Addition of geographical indications
1. As regards geographical indications listed in Annex V or VI, the Parties understand that they will be processed in accordance with the terms of this Agreement during the first four years after the entry into force of this Agreement (1).
2. Additions to the geographical indications listed in Annexes III and IV shall, after having examined their technical specifications set out in the form laid down in Annex II, be subject to the relevant procedures referred to in Article 10(3) (2).
Article 4
Scope of protection of geographical indications (3)
1. In respect of the geographical indications listed in Annex III or IV, including geographical indications added thereto pursuant to Article 3 of this Agreement, each Party shall protect them against (4):
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(a) |
the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; |
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(b) |
any use of a geographical indication identifying an identical or similar product not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation, transcription (5) or transliteration, or accompanied by expressions such as "kind", "type", "style", "imitation" or the like; |
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(c) |
any use of a geographical indication identifying an identical or similar product not compliant with the product specification of the protected name. |
2. In the case of wholly or partially homonymous geographical indications, protection shall be accorded to each indication. However, a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory shall not be protected.
Each Party shall, as far as possible, consult the other Party prior to determining the practical conditions under which the homonymous indications concerned will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
3. As regards the addition of geographical indications pursuant to Article 3, a Party shall not be required to protect as a geographical indication a name that conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product.
4. Where a Party, in the context of negotiations with a third country, proposes to protect a geographical indication of that third country, and the name is homonymous with a geographical indication of the other Party protected under this Agreement, the latter shall be informed and be given the opportunity to comment before the name becomes protected.
5. Nothing in this Agreement shall oblige a Party to protect a geographical indication of the other Party which is not, or ceases to be, protected in its country of origin, or which has fallen into disuse in that country. Each Party shall notify the other Party if one of its geographical indications ceases to be protected in its country of origin or has fallen into disuse in that country.
6. This Agreement shall in no way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public.
Article 5
Right of use of geographical indications
1. A geographical indication protected under this Agreement may be used on any legitimate product conforming to the technical specification of that geographical indication and following all the requirements of the relevant legislation of the Party in which the geographical indication originates as listed in Annex I.
2. Once a geographical indication is protected under this Agreement, the products covered by that geographical indication may bear the official symbols of the geographical indication of the other Party in the territory of that Party, in accordance with the relevant legislation listed in Annex I.
Geographical indications listed in Annex III shall be incorporated in the relevant European Union register with effect from the date of entry into force of this Agreement (6). The products covered by a geographical indication protected under this Agreement and listed in Annex III, including those geographical indications entered into Annex III in accordance with Article 3 of this Agreement, may bear the European symbol corresponding to a Protected Designation of Origin or to a Protected Geographical Indication in the territory of the European Union. Following a case-by-case assessment, the European Union shall decide on entering the geographical indications listed in Annex III, including those geographical indications entered into Annex III in accordance with Article 3 of this Agreement, in the relevant European Union register either as a Protected Designation of Origin or as a Protected Geographical Indication. Those geographical indications shall be incorporated in the register with effect from the date of application of such decision.
For the geographical indications listed in Annex IV, the symbols corresponding to Geographical Indication Products as laid down by the legislation of the People's Republic of China may be used.
Once a geographical indication is protected under this Agreement, the products covered by that geographical indication may bear the official symbols in accordance with the legislation of the originating Party listed in Annex I, in the territory of the other Party, provided that general labelling requirements of the latter are met.
This paragraph shall be without prejudice to the right of either Party to adopt or maintain a system for authorising the use of official symbols for geographical indications originating in its territory.
3. Once a geographical indication is protected under this Agreement, the use of such protected name by any user in the territory of the other Party shall not be subject to any administrative approval of users, or further administrative charges. The right holder or the control body of a geographical indication is encouraged to provide the list of users to the competent authorities of the other Party to facilitate enforcement under this Agreement.
Article 6
Relationship with trade marks
1. The Parties shall, ex officio or at the request of an interested party, refuse or invalidate the registration of a trade mark which consists of (7) a geographical indication or its translation or transcription, with respect to identical or similar products not having the origin indicated by that geographical indication, in accordance with their respective rules, provided that the application for registration of the trade mark has been submitted after the date of protection for the geographical indications listed in Annex III or IV, or after the date of application for protection for the geographical indications referred to in Article 3 of this Agreement, in the territory concerned.
2. The Parties shall also, at the request of an interested party, refuse or invalidate the registration of a trade mark which indicates that the good in question originates in a geographical area other than the true place of origin with respect to identical or similar products, provided that the application for registration of the trade mark has been submitted after the date of protection for the geographical indications listed in Annex III or IV, or after the date of application for protection for the geographical indications referred to in Article 3 of this Agreement, in the territory concerned (8).
3. Nothing in this Agreement shall oblige a Party to protect a geographical indication of the other Party under this Agreement where, in the light of a reputed or well-known trade mark, the protection would be liable to mislead the consumers as to the true identity of the product.
4. The protection provided to the geographical indications listed in Annexes III and IV, under this Agreement, is without prejudice to the continued use and renewal of a trade mark which, in good faith, has been applied for, registered, or established through use if such possibility is provided for in the legislation of the Party concerned, prior to the date of protection for the geographical indications listed in Annex III or IV, or prior to the date of application for protection for the geographical indications referred to in Article 3 of this Agreement.
The trade marks referred to in the first subparagraph of this paragraph may continue to be used and renewed provided that no grounds for the trade mark's invalidity or revocation exist in the legislation on trade marks of the Parties. It is understood that protection of geographical indications may be provided under legislation other than trade mark laws and regulations, such as legislation providing for sui generis protection of geographical indications.
The date of protection and the date of application for protection are determined in accordance with paragraph 5.
5. For the purposes of paragraphs 1, 2 and 4 of this Article, the "date of protection" and the "date of application for protection" shall be the following:
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for geographical indications listed in Annex III or IV, the date of protection shall be no later than the date of entry into force of this Agreement; |
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for geographical indications listed in Annexes V and VI, the date of application for protection shall be the date of entry into force of this Agreement and the date of protection shall be no later than the date of entry into force of the respective modification to the Annex III or Annex IV; |
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for geographical indications referred to in Article 3(2), the date of the publication for the protection of a geographical indication shall serve as the date of application for protection of that geographical indication and the date of protection shall be no later than the date of entry into force of the respective modification to Annex III or Annex IV. |
6. As regards geographical indications listed in Annexes V and VI on the date of entry into force of this Agreement, trade marks applied for after the entry into force of this Agreement and corresponding to one of the situations referred to in paragraph 1 shall be rejected.
As regards geographical indications listed in Annex III on the date of entry into force of this Agreement, trade marks applied for in the European Union between the date of publication for opposition and the entry into force of this Agreement and corresponding to one of the situations referred to in paragraph 1 shall be presumed to have been applied for in bad faith.
As regards geographical indications listed in Annex IV on the date of entry into force of this Agreement, trade marks applied for in the People's Republic of China after 3 June 2017 and corresponding to one of the situations referred to in paragraph 1 shall be rejected.
Article 7
Enforcement of protection
The Parties shall enforce the protection provided for in this Agreement through appropriate action by their authorities. They shall also enforce such protection at the request of an interested party. This Article is without prejudice to the rights of interested parties to seek judicial enforcement.
Article 8
General rules
1. The provisions of this Agreement shall apply without prejudice to any previous commitments of the Parties derived from international agreements on the protection of geographical indications and the enforcement thereof.
2. Import, export and marketing of products bearing geographical indications listed in Annex III or IV shall be conducted in compliance with the laws and regulations applicable in the territory of the Party in which the products are placed on the market.
3. Any matter arising from the technical specifications of registered products shall be dealt with in the Joint Committee established pursuant to Article 10.
4. The information on geographical indications, in particular the technical specifications for registration of a geographical indication as set out in Annex II, including any future amendments, shall be that examined and approved by the authorities of the Party in the territory in which the geographical indication concerned originates.
Article 9
Transparency and exchange of information
1. The Parties shall, either through the Joint Committee established pursuant to Article 10 or directly through the established contact points when the Joint Committee is not in session, maintain contact on all matters relating to the implementation and functioning of this Agreement. In particular, a Party may request from the other Party information relating to relevant laws and regulations, information on geographical indications, and their modification, and information on contact points for control provisions. The contact points shall also be responsible for receiving the necessary documentation relating to the names listed in the Annexes.
Each Party shall identify and communicate the contact point to be used for matters identified in the first subparagraph.
For the Government of the People's Republic of China, the contact point is Department of Treaty and Law, Ministry of Commerce of China.
For the European Union, the contact point is the European Commission Directorate General for Agriculture and Rural Development.
2. Each Party may make publicly available the information on geographical indications referred to in Article 8(4), including the technical specification or a summary thereof, and on contact points for control provisions corresponding to geographical indications of the other Party protected under this Agreement.
Article 10
Joint Committee
1. The Parties hereby establish a Joint Committee consisting of representatives of both Parties with the purpose of monitoring the implementation of this Agreement and of intensifying their cooperation and dialogue on geographical indications.
2. The Joint Committee shall adopt its decisions by consensus. It shall determine its own rules of procedure. It shall meet at least once a year or at anytime agreed by the Parties, alternately in the European Union and in the People's Republic of China, at a time and place and in a manner (which may include by videoconference) mutually determined by the Parties, but no later than 90 days after the request.
3. The Joint Committee shall also see to the proper functioning of this Agreement and may consider any matter related to its implementation and operation. In particular, it shall be responsible for:
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(a) |
amending Annex I as regards the references to the law applicable in the Parties and amending the other Annexes to this Agreement; |
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(b) |
exchanging information on legislative and policy developments as regards geographical indications and on any other matter of mutual interest in the area of geographical indications; |
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(c) |
exchanging information on geographical indications for the purpose of considering their protection in accordance with this Agreement. |
Article 11
Cooperation
The Parties agree to cooperate with a view to supporting implementation of the commitments and obligations undertaken in this Agreement. Areas of cooperation include, but are not limited to, the following activities:
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(a) |
exchanging information with a view to supporting the functioning of the Joint Committee; |
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(b) |
exchanging experiences of enforcement at the request of the other Party; |
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(c) |
capacity building including with regard to enforcement of protection, and to the relation between trade marks and geographical indications; |
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(d) |
exchanging information in order to optimise the operation of this Agreement; and |
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(e) |
promoting and disseminating information on geographical indications among, inter alia, business circles and civil society, as well as promoting public awareness of consumers and right holders. |
Article 12
Territorial scope
This Agreement applies, on the one hand, to the territories in which the Treaty on European Union and the Treaty on the Functioning of the European Union are applied and under the conditions laid down in those Treaties and, on the other hand, with regard to the People's Republic of China, to the entire customs territory of China.
Article 13
Authentic texts
This Agreement is drawn up in duplicate in English and the Standard Chinese language. It will also be translated into Bulgarian, Croatian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish. Each above-mentioned text shall be equally authentic. In the event of inconsistencies of interpretation, the English and Chinese texts shall prevail.
Article 14
Entry into force, amendments and termination
1. This Agreement shall enter into force on the first day of the second month following the date of receipt of the last notification from the Parties in writing through diplomatic channels certifying that their respective legal procedures necessary for the entry into force of this Agreement have been completed.
2. The Parties may amend this Agreement by mutual written consent. An amendment to this Agreement shall enter into force on the first day of the second month after the written consent has been expressed by the Parties. Amendments to the Annexes shall be effected by a decision by the Joint Committee established pursuant to Article 10.
3. Either Party may terminate this Agreement by giving the other Party one year's written notice through diplomatic channels.
IN WITNESS WHEREOF, the undersigned Plenipotentiaries, duly authorised to that effect, have signed this Agreement.
Съставено в Пекин на четиринадесети септември две хиляди и двадесета година.
Hecho en Pekín el catorce de septiembre de dos mil veinte.
V Pekingu dne čtrnáctého září roku dva tisíce dvacet
Udfærdiget i Beijing den fjortende september to tusind og tyve.
Geschehen zu Peking (Beijing) am vierzehnten September zweitausendzwanzig.
Kahe tuhande kahekümnenda aasta septembrikuu neljateistkümnendal päeval Pekingis.
Έγινε στο Πεκίνο, στις δεκατέσσερις Σεπτεμβρίου δύο χιλιάδες είκοσι.
Done at Beijing on the fourteenth day of September in the year two thousand and twenty.
Fait à Pékin, le quatorze septembre deux mille vingt.
Sastavljeno u Pekingu četrnaestog rujna dvije tisuće dvadesete.
Fatto a Pechino, il quattordici settembre duemilaventi.
Pekinā, divtūkstoš divdesmitā gada četrpadsmitajā septembrī.
Priimta Pekine du tūkstančiai dvidešimtųjų metų rugsėjo keturioliktą dieną.
Kelt Pekingben, a kétezer-huszadik év szeptember havának tizennegyedik napján.
Magħmul f'Beijing fl-erbatax-il jum ta' Settembru fis-sena elfejn u għoxrin.
Gedaan te Peking, veertien september tweeduizend twintig.
Sporządzono w Pekinie dnia czternastego września dwa tysiące dwudziestego roku.
Feito em Pequim, aos catorze dias do mês de setembro do ano de dois mil e vinte.
Întocmit la Beijing, la paisprezece septembrie două mii douăzeci.
V Pekingu štrnásteho septembra dvetisícdvadsať.
V Pekingu, štirinajstega septembra dva tisoč dvajset.
Tehty Pekingissä neljäntenätoista päivänä syyskuuta vuonna kaksituhattakaksikymmentä.
Utfärdat i Peking den fjortonde september år tjugohundratjugo.
二零二零年九月十四日在北京签署。
(1) The Parties understand that in all but exceptional or particularly complex cases, the geographical indications shall be considered processed when all procedures relating to their examination, publication, opposition, appeals or any other procedures established for the purpose of their protection have been exhausted and the administrative decision to reject or protect that geographical indication has been taken.
(2) The Parties agree that geographical indications listed in Annex V and in Annex VI on the date of entry into force of this Agreement will be subject to the same procedures referred to in Article 10(3).
(3) The parties confirm that they will meet their obligations under this Agreement via the enforcement of the legislation listed in Annex I. The Parties take note that in implementing the protection of the other Party's geographical indications as set out in this Agreement, the Parties may use all or any of their domestic systems. It is noted that none of the Parties will use the provisions of their respective trade mark laws and regulations to publish the geographical indications of the other Party or to grant status of geographical indication to the names set out in the Annexes to this Agreement. The extent to which the Parties use their trade mark laws and regulations to implement this Article is set out in Article 6.
(4) For the purpose of this Article and to the extent it does not contradict the provisions of Section 3 of Part II of the TRIPS Agreement, the Parties agree that "any use" or "use of any means" may encompass any direct or indirect commercial use of a protected name, including imitation, or use that would suggest or indicate a connection or an association between the product in question and the protected name. The "designation or presentation of a good" may include any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin.
(5) The term "transcription" covers the transcription of the geographical indications protected under this Agreement in Latin or non-Latin characters into the characters of the People's Republic of China, on the one hand, and the transcription of the geographical indications protected under this Agreement in the characters of the People's Republic of China into the Latin or non-Latin characters used in the European Union, on the other hand. Annexes III, IV, V and VI specify the original name and its transcription to be protected by this Agreement, and its translation for information purposes.
(6) The geographical indications numbered from 55-68 in Annex V shall enjoy the same protection as that provided to all other geographical indications under this Agreement, including the same rights to bear the European symbol corresponding to a Protected Designation of Origin or to a Protected Geographical Indication in the territory of the European Union as foreseen in this Article. The geographical indications numbered from 55‐68 in Annex V could be entered into the register if and when the EU legislation is widened to cover them.
(7) For the purposes of this Article, with respect to the protection of geographical indications, "consists of" shall be deemed to be synonymous with "identical or almost identical to".
(8) Article 6(1) does not apply if an applicant applies for a trade mark which is identical to the registered trademark owned by himself with respect to the identical product.