Clash of the Old and the New World of Wine in China

Clash of the Old and the New

World of Wine in ChinaA Case Study of Competition, Innovation and Prosecco

Dr. Danny Friedmann 龍知權

[email protected]

How are geographical names used?

1. As a geographical designation of products

2. To refer to non-geographical qualities of products

3. To translate, imitate or usurp

4. To evoke a certain association or sense of aesthetics

3. Translation,

imitation,

usurpation

Шампанское України

Shampansʹke Ukrayiny

Definition Lisbon Agreement

Art 2(1): In this Agreement, “appellation of origin” means the geographical

denomination of a country, region, or locality, which serves to designate a product

originating therein, the quality or characteristics of which are due exclusively

or essentially to the geographical environment, including natural and human

factors.

Art 3: Protection shall be ensured against any usurpation or imitation, even if

the true origin of the product is indicated or if the appellation is used in translated

form or accompanied by terms such as “kind,” “type,” “make,” “imitation”, or

the like.

Definition Lisbon Agreement

Art 2(1): In this Agreement, “appellation of origin” means the geographical

denomination of a country, region, or locality, which serves to designate a product

originating therein, the quality or characteristics of which are due exclusively

or essentially to the geographical environment, including natural and human

factors.

Art 3: Protection shall be ensured against any usurpation or imitation, even if

the true origin of the product is indicated or if the appellation is used in translated

form or accompanied by terms such as “kind,” “type,” “make,” “imitation”, or

the like.

For all wine, spirits and foodstuffs

EU maximalist regulation

Regulation (EU) No 1308/2013 of the European Parliament and of the Council of

17 December 2013

Art. 103 Protection

(2)(b) any misuse, imitation or evocation, even if the true origin of the

product or service is indicated or if the protected name is translated,

transcripted or transliterated or accompanied by an expression such as

"style", "type", "method", "as produced in", "imitation", "flavour", "like" or

similar;

TRIPS 164 members

Definition TRIPS

Art 22(1)

GI are, for the purposes of this Agreement, indications which identify a good as

originating in the territory of a Member, or a region or locality in that territory, where a

given quality, reputation or other characteristic of the good is essentially

attributable to its geographical origin.

Art 23(1)

Each Member shall provide the legal means for interested parties to prevent use of a

geographical indication identifying wines for wines not originating in the place indicated

by the geographical indication in question or identifying spirits for spirits 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 or

accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like.

Baseline Nexus Product-Place

Lisbon Agreement for the Protection of Appellations of

Origin and their International Registration

Quality or

Characteristics

Or

reputation

Excl./essentially attributable to the

geographical environment, incl. human

and natural factors

TRIPS ASIQ

Substantially attributable to

human and

natural factors

Essentially

attributable to its

geographical origin

1754---------------------------2009-----2017

PROSECCO GLERA

Last sentence of Art. 24(6) TRIPS

Nothing in this Section shall require a Member to apply its provisions in respect of

a geographical indication of any other Member with respect to products of the

vine for which the relevant indication is identical with the customary name

of a grape variety existing in the territory of that Member as of the date of

entry into force of the WTO Agreement.



a geographical indication of any other Member with respect to products of the vine

for which the relevant indication is identical with the customary name of a grape

variety existing in the territory of that Member as of the date of entry into force of

the WTO Agreement.

• WTO Agreement went into force on 1 January 1995.



a geographical indication of any other Member with respect to products of the vine

for which the relevant indication is identical with the customary name of a grape

variety existing in the territory of that Member as of the date of entry into force of

the WTO Agreement.

• WTO Agreement went into force on 1 January 1995;

• Prosecco grape name change (unilaterally) into Glera was launched in

2009.

SAIC

43.79%

MOA

25.66%

AQSIQ

21.16%

4.82%

0.27%

3.79%

0.52%

SAICAQSIQ

SAICAQSIQArticle 12 Measures

for the Registration

and Administration

of Collective Marks

and Certification

Marks, Apr. 17,

2003, effective June

1, 2003

Provisions for the Protection of Products

of Geographical Indication, June 7, 2005,

effective July 15, 2005

Article 2 The products of GI mentioned in these Provisions shall refer to products

that originate from a particular geographical region with the quality, reputation or

other characteristics substantially attributable to the natural and human

factors of the region, and denominated with the name of the region upon

examination and approval. The products of geographical indication include:

(1) those grown or cultivated in the region; and

(2) those made, wholly or partially, of the raw materials from the region and

produced or processed with the particular techniques in the region;

Measures on the Protection of Foreign GI Products,

AQSIQ, March 28, 2016

Announced in Art. 26 Provisions for the Protection of GIs, AQSIQ, May 16, 2005.

EU’s Dream of

“International EU GIs”

• PDO: name is a region, special place or country;

• Essentially or exclusively linked to quality or

characteristics of the product;

• Production steps all in the geographical area;

• Grapes: 100 percent from the geographical area.

• PGI: name is referring to a region, special place or

country;

• Essentially linked to quality, reputation or

characteristics of the product;

• Production steps all in the geographical area;

• Grapes: 85 percent from the geographical area.

http://ec.europa.eu/internal_market/iprenforcement/docs/observatory/gi-designations_en.pdf

Beaujolais; Bordeaux; Bourgogne; Chablis; Champagne; Chianti; Cognac; Grappa di

Barolo, del Piemonte, del Lombardia, del Trentino, del Friuli, del Veneto, dell’Alto

Adige; Graves; Liebfrau(en)milch; Malaga, Marsala; Madeira; Médoc; Moselle; Ouzo;

Porto; Rioja; Saint-Emilion; Sauternes; Jerez, Xerez

Asiago; Azafrán de la Mancha; Comté; Feta; Fontina; Gorgonzola; Grana Padano;

Jijona y Turrón de Alicante; Manchego; Mortadella Bologna; Mozzarella di Bufala

Campana; Parmigiano Reggiano; Pecorino Romano; Prosciutto di Parma; Prosciutto di

San Daniele; Prosciutto Toscano; Queijo São Jorge; Reblochon; Roquefort

EU’s list to internationally re-propertization

of 41 “generic” geographical names (28 August 2003)

Beaujolais; Bordeaux; Bourgogne; Chablis; Champagne; Chianti; Cognac; Grappa

di Barolo, del Piemonte, di Lombardia, del Trentino, del Friuli, del Veneto, dell'Alto

Adige; Graves; Liebfrau(en)milch; Malaga; Marsala; Madeira; Médoc; Moselle;

Ouzo; Porto; Rhin; Rioja; Saint-Emilion; Sauternes; Jerez, Xerez



Campana; Parmigiano Reggiano; Pecorino Romano; Prosciutto di Parma;

Prosciutto di San Daniele; Prosciutto Toscano; Queijo São Jorge; Reblochon;

Roquefort









EU-China GIs – 10 plus 10 (30 November 2012)

Comté 平谷大桃 Pinggu Da Tao

Grana Padano 盐城龙虾 Yancheng Long Xia

Priego de Córdoba 镇江香醋 Zhenjiang Xiang Cu

Prosciutto di Parma 东山白卢笋 Dongshan Bai Lu

SunPruneaux d‘Agen/Pruneaux d’Agen mi-cuits 金乡大蒜 Jinxiang Da Suan

Roquefort 龙井茶 Longjing cha

Scottish Farmed Salmon 琯溪蜜柚 Guanxi Mi You

Sierra Mágina 陕西苹果 Shaanxi ping guo

West Country Farmhouse Cheddar 蠡县麻山药 Lixian Ma Shan Yao

White Stilton Cheese/Blue Stilton Cheese 龙口粉丝 Longkou Fen Si









EU-China GIs – 100 plus 100 (2 June 2017)

Conegliano-Valdobbiadene-Prosecco 科内利亚诺瓦尔多比亚德尼 –普罗塞克









Conegliano-Valdobbiadene-Prosecco 科内利亚诺瓦尔多比亚德尼 –普罗塞克

Noord-Hollandse Gouda

Combining a generic term with non-generic terms:

Multi-Component Terms

Multi-Component Terms

• “Napa Valley” registered Certification trademark in China in 2007;

• “Napa Valley” opposed against Hangzhou (Zhejiang) “Screw Kappa Napa”

trademark in 2005. TMO rejected the opposition; TRAB rejected opposition in

2014; Beijing No. 1 Intermediary People’s Court rejected opposition in 2015;

• Beijing High People’s Court accepted opposition; 2016

Napa Valley v Screw Kappa Napa

Napa for Screw Kappa Napa

Pars Pro Toto

Napa for Screw Kappa Napa

Prosecco for Conegliano-Valdobbiadene-Prosecco

Pars Pro Toto

World Heritage Convention

Art. 1: World Heritage Site: “works of man or the combined works of nature and man (…)”

Champagne Hillsides, Houses and Cellars

Submission in 2007

Acknowledged in 2015

The Prosecco Hills of Conegliano and Valdobbiadene

Submission in 2010

“The Prosecco vine has been cultivated on these hills for over two hundred years.”

Conclusions

• GIs unlike other IP (that should give an incentive for innovation): conformity,

preservation/protection/transmission of TK, promotion of local/rural development

Conclusions

• GIs unlike other IP (innovation): conformity, preservation/protection/transmission

of TK, promotion of local/rural development

• Certification/Collective TM system more innovative (non-traditional TMs,

generic names not protected)

Conclusions





• Prosecco is a grape; EU tries to make it into GI.

Conclusions






• Multi-Component Terms versus Pars Pro Toto

Conclusions






• Multi-component terms versus Pars Pro Toto

• Bottling of a WTO dispute case of Australia (and other New World juridisctions)

against China

Clash of the Old and the New World of Wine in China

Documents

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