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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IP Dragon Teaches CPD Course in HK: Transnational Trademark Issues: Observations from a Century of Budweiser Conflicts

By Dr. Danny Friedmann

 

In 2006 Professor Justin Hughes of Cardozo Law School wrote one of the defining articles on Geographical Indications: “Champagne, Feta, and Bourbon: The spirited debate about geographical indications”, you can find here and an excellent presentation here.  In his presentation Professor Hughes also mentions the Budweiser cases, starting at 42 minutes see here.

 

Dr. Christopher Heath of the European Patent Office, wrote a great chapter about “The Budweiser Cases: A Brewing Conflict”, in Christopher Heath and Anselm Kamperman Sanders (eds) Landmark Intellectual Property Cases and Their Legacy, 2011, 181-244, see here.

 

Inspired by Hughes and Heath this author is teaching on March 8, 2014 a CPD course (3 points) in Hong Kong for The Profectional Company, see here, on these Budweiser cases, since they are a great tool to teach about the following topics:

 

  • Rationales of Trademark Law
    1. By the end of this course the participants will know the rationales of trademark law, the essential function of trademark against confusion or a likelihood of confusion: source of origin, quality and product distinctiveness and their derivatives; the doctrines of sponsorship and affiliation confusion, initial-interest confusion, post sale confusion and reverse confusion will be all explained.
    2. Beside the “essential” function, the participants will also learn about the communication, advertisement and investment functions, and the measures against trademark dilution or a likelihood of trademark dilution, which can be crucial for the trademark proprietor.  There are two branches of the trademark dilution doctrine, which will be illustrated by relevant case law: trademark dilution by blurring and trademark dilution by tarnishment.

 

  • Characteristics of Trademarks
    1. Trademarks will be discussed in regard to different categories, each having very different characteristics: registered/unregistered, inherently distinctive/acquired distinctiveness, well-known/famous/reputable, collective/certification, appellation of origin/geographical indication.

 

  • New Challenges for the Trademark
    1. First the history of trademark infringement and trademark dilution will be highlighted in order to better understand the present situation.  This course will then elaborate on the challenges of two fundaments of trademark law; territoriality principle in regard to globalisation and the internet, and the specialty principle and the problems related to the Nice Classification. Alternative systems will also be reviewed.

 

  • Relevant Treaty Law for Geographical Indications
    1. The course will explicate how collective/certification trademarks, Paris Convention, TRIPS and Lisbon Agreements are relevant for the protection of Geographical Indications, the similarities and differences in the different jurisdictions will be discussed.  The participants will understand the relation and conflict between a normal trademark and a Geographical Indication.

 

  • European Intellectual Property Law
    1. This course includes a primer on EU IP law; the participants will understand the difference between regulations and directives, and how the National Courts of the EU, the European Court of Justice/Court of Justice of the European Union and the Advocate General of the CJEU and their relationships.

 

  • The Budweiser Cases
    1. After comprehending the aforementioned building blocks of the course, the participants will fully appreciate and comprehend the rich case law on the manifold Budweiser legal conflicts which will be reviewed.  By the end of this course, the participants will have an up-to-date knowledge of the ECJ/CJEU decisions and even an ECHR (human rights) judgment in regard to the Budweiser cases.

  

You can find more information on the course here.


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What are the economic effects of Geographical Indications (GIs) on developing country producers? Deepthi Elizabeth Kolady (Research collaborator with International Food Policy Research Institute; visiting fellow at Cornell University), William Henri Lesser (Professor at the Dyson School of Applied Economics and Management, Cornell University) and Chunhui Ye (Associate Researcher at the China Academy for Rural Development, School […]

Sober Advice To Stop Counterfeit Wine As Lafite Bubble in China Attracts More Counterfeiters

China counterfeiters produce more “Lafite”  then you can ever find in the  Château Lafite Rothschild cellars in France Photo: Wikipedia about Château Lafite Rothschild  No, Lafite is not a kind of Champagne. It has no bubbles inside. But the market for Lafite could definitely be called a bubble. One can find more “Château Lafite Rothschild” wine bottles […]

Free Trade Agreement Between Costa Rica and China

Professor Aurelio López-Tarruella Martinez of the University of Alicante makes us aware via IP Tango that on August 1, 2011, two Free Trade Agreements (FTAs) entered into force: between Peru and Korea and between Costa Rica and China. Let’s focus on the latter.Professor López-Tarruella Martinez writes: “The FTA between Costa Rica and China includes specific provisions on generic […]

Taiwan IP Update: First Country That Protects Hologram In Its Trademark Law

Taiwan has amended its Trademark Act May 31, 2011. What has changed? Progressive trademark act, but with olfactory deficiency Photo: NASA via Wikipedia Listing counterfeit merchandise online will be punishable by fines of up to NT$50,000 and up to one year in prison.  According to the director-general of Taiwan Intellectual Property Office (TIPO), Wang Mei-hua (王美花) the scope […]

China Recognises Scotch Whisky as Geographical Indication

Great victory for the Scotch Whisky Association. “Scotch Whisky’s registration as a GI in China – recognising Scotch Whisky can only be made in Scotland – is the culmination of three years of discussions between The Scotch Whisky Association (SWA) and the Chinese Government. The announcement was made today [November 8, 2010] at a Ministerial […]

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

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. […]

Professor David Llewlyn Explained All IPRs in One Hour

IP Dragon was attending yesterday evening the very inspiring lecture of Professor David Llewelyn at the University of Hong Kong, about the importance of intellectual property rights for not only experts, but everybody. Professor Llewelyn made clear that the lecture was a public lecture meant for non-experts; the normal consumers; and put experts and expertise […]

Sino-Japanese IPR Memorandum of Understanding: What Does It All Mean?

Although the text of the IPR MOU between China and Japan is not available, Adam Smith of the World Trademark Review tried to make sense of it all and prognose what the results will be of the negotiations/cooperations and asked yours truly in the process. Read Mr Smith’s article ‘China and Japan sign IP rights […]

Japan On Chinese trade marks of Japanese Locations: “Can’t Touch This”

The Japanese Patent Office declared it wants to stop Chinese companies registering Japanese geographical locations as trade marks. “The two languages share many characters and Japan’s Kyodo news agency said thenames of 19 of the country’s 47 prefectures including Kyoto, Nagano and Yamaguchi had been registered as trademarks in China by the end of last […]

Pinggu Peaches Only From China: China’s Position on GI

On June 21, IP Dragon mentioned that there would be an international symposium on geographical indications (GI) organised by the World Intellectual Property Organisation (WIPO) and China’s State Administration for Industry and Commerce (SAIC) in Beijing, June 26 to 28, see here. So it is the highest time to find out what China’s position is. […]

Geographical Indications Go China

The World Intellectual Property Organization (WIPO) and the State Administration for Industry and Commerce (SAIC) of the People’s Republic of China in Beijing have organised an international symposium on geographical indictions (GI), from June 26 to 28, 2007. What is a GI? According to WIPO: “A GI is a sign used on goods that have […]