Two Sino-Swiss Memoranda of Understanding on IP and upgrade of FTA

Bern 16 January 2017, Diedier Burkhalter (Federal Councillor) and WANG Yi (Minister of Foreign Affairs) signed a Memorandum of Understanding (MoU) between Switzerland and China.

The text of the MoU consists of laudatory calls to cooperate, and only a commitment to “determine the detailed activities”. The most interesting point was that the parties endeavor to exchange of information and views on the latest developments of their respective IP system and the legislation and administrative procedures. With China’s scattered way of promulgating rules and regulations different legal channels, such as the Supreme People’s Court, the State Council, State Administration for Industry and Commerce, State Intellectual Property Office and several provincial courts, to make this more transparent is a daunting task. The results of the meetings, that will be held in both countries, and will be summed up in the minutes, will be especially attractive to peruse. Whether these will be made public is the question.

 

On the same day, the Chinese Minister of Commerce Gao Hucheng and the Head of Department of Economic Affairs, Education and Research of Switzerland Johann N. Schneider-Ammann signed The Memorandum of Understanding between the Ministry of Commerce of China and the Federal Department of Economic Affairs, Education and Research of Switzerland on the Upgrading of China-Switzerland FTA, announcing that the joint study on China-Switzerland Free Trade Agreement (FTA) upgrading was launched. The China-Switzerland FTA was signed by the same people in July 2013 (after another MoU), and was implemented in July 2014.

 

In the existent Sino-Swiss FTA IPRs (Chapter 11 (page 60) and Annex IX in connection with Article 11(10) of Chapter 11) the countries committed themselves to protect the level that is prescribed by those international treaties that both have in common. This means that for example even though in Switzerland the copyright duration is 70 years after the death of the author, the protection level between the countries becomes 50 years after the death of the author, because that is the duration of copyright in China. However, besides “lowest denominator” standards some important changes were made:

 

  • Protection must be provided for acoustic trademarks as a new category of trademark;
  • In the field of patents, the patentability of biotechnological inventions is specified in accordance with the European Patent Convention;
  • Furthermore, the Parties may require in case a patent application is filed and the invention is based on genetic materials or traditional knowledge, such materials and knowledge are indicated;
  • The confidentiality of test data in relation of marketing approval procedures for pharmaceutical and agro-chemical products must be protected for at least six years;
  • The level of protection for geographical indications for wines and spirits under Article 23 TRIPS (this means that the anti-usurpation where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” is still prohibited) is extended to all products;
  • Goods and services must be protected from misleading indications of origin;
  • Country names, national flags and coats-of-arms of the Parties must be protected from misleading use and registration as company or brand names;
  • Compared to the UPOV Convention (1978 version, of which China is a signatory) the protection for new varieties of plants is extended to the exportation of such varieties. In the 2016 revision of the national list of protectable varieties China declared that it is prepared to give priority to certain plant varieties which are important to Swiss industry.

 

Let us see how both countries will upgrade IP protection and especially enforcement to which they will commit themselves in relation to each other.
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