Geographical Indications in Korea June 2007 Prof. Nohyoung Park Korea University.

Geographical Indications in Korea

June 2007

Prof. Nohyoung Park

Korea University

고려대학교 통상법연구센터 고려대학교 통상법연구센터 ((World Economic Law Research Center at KOREA UNIV.World Economic Law Research Center at KOREA UNIV.))

Protection of GIs, otherwise,in Korea

Unfair Competition Prevention and Trade Secrets Protection Act To prohibit, as unfair competition, use of marks identical or

similar to another person's name, trade name, emblem or any other well known mark, including selling, distributing, importing or exporting goods so marked, that would mislead the public on the place of production

Fair Labelling and Advertising Act To prevent deceptive labelling and advertising, including

any vague or false labelling or advertising that may mislead consumers on the product's origin

Trademark Law To prevent registration of trademarks consisting of a

"conspicuous geographical name" To prevent registration of any trade mark containing

geographical indications for wines or spirits originating in any WTO Member (Art. 7(1)(xiv))

Foreign Trade Act To prohibit Imports or exports with false origin indications

or infringing GIs


Introduction of GI systems, as in the TRIPS, in Korea

To actively respond to internationally strengthened protection of GIs

To actively protect excellent local agricultural products abroad as well as domestically

To promote competitiveness of local agricultural products against imported products through differentiation of quality

To cultivate local agricultural products as locally specific industry through quality promotion


Introduction of GI systems, as in the TRIPS, in Korea

1999.7: GI, as in the TRIPS, provided in APQC Act

2000.9: Regulation on GI Registration Committee adopted

2000.9: Products subject to GI registration announced

2001.8: GI Registration Committee comprised (10 ex officio, 17 appointed)

2004.12: Collective Mark for a GI provided in Trademark Act

2006.11: GI Registration Committee comprised secondly (7 ex officio, 13 appointed)


GI Systems in Korea

Products Legal Basis Administration

Agricultural

Fishery

All

APQC Act – in 1999

FPQC Act – in 1999

Trademark Act – in 2004

Agricultural Ministry (NAPQCS)

Fishery Ministry (NFPQCS)

Industry and Energy Ministry (KIPO)


Two Major Systems of GI in Korea

Legal Basis

Trademark Act Agricultural Product Quality Control Act

Definition

Art. 2(1)(iiibis): an indication that identifies a good as originating in a certain region where a given quality, reputation or other characteristic of the good is essentially attributable to that region

Article 2(5): an indication that serves to designate a product or a processed product originating therein, the reputation, quality and characteristics of which are essentially attributable to the geographical origin

Scope All products (no services) Agricultural products and their processed products among those given a notice by Agricultural Minister




Criteria

GIs that conform to the definition stipulated in TRIPS article 22 in addition to common requirements of collective marks

GIs that conform to the definition stipulated in TRIPS article 22 and additional elements (Art. 15 of the Enforcement Decree)1.Products of which the fame of its quality is well-known within and beyond Korea;2.Products of which the reputation, quality or other characteristics of that product is essentially attributable to a certain region’s productive-environment or human factors.3.Product should have been cultivated in the area or processed in the area using the product cultivated in the area;4.Products that meet other criteria that the Minister of Agriculture and Forestry regards as necessary to acquire protection as geographical indications




Body in charge

Korean Intellectual Property Office (KIPO);An examiner reviews an application.

National Agricultural Products Quality Control Service (NAPQCS);

GI Registration Committee reviews an application, involving on-site

investigation by a subcommittee Effects The same bundle of rights granted

to the owner of a trademark with some limitations;Effective for 10 years, renewable.

Use of GI with the mark issued by the Ministry and protection against the illegal use of the GI;Effective permanently.

Remedies GI owner can ask for civil and criminal remedies against infringement.

Administrative and criminal remedies are provided, with civil remedies allowed;

Appearance

Appears freely in the way the owner wants to use the registered GI

Appears with a mark that shows to consumers that GI is warranted by the government


Year Products No.

2002 Boseong green tea 1

2003 Hadong green tea 1

2004 Gochang bokbunja (liquer) 1

2005 Seosan garlic, Icheon rice and others 10

2006 Gogeung yuja, Hoengseong beef and others 20

2007 Jindo red wine, Bonghwa pine mushroom and others 5

27 agricultural and 11 forest products 38

13 products under review

101 agricultural and 50 forest products listed by Agricultural Minister for GI eligibility

GIs Registered in Korea

Agricultural Ministry as of April 2007


Boseong green tea registered in 2002


Hadong green tea registered in 2003


Gochang bokbunja (raspberry liquer) registered in 2004


Seosan garlic registered in 2005


Goheung yuja (citron) registered in 2006


Bonghwa pine mushroom registered in 2007


GIs Registered in Korea

Fishery Ministry as of April 2007

▶ Products being geared up

1. Youngduk big crab 2. Inje Yongdaeri yellow cod 3. Boseong Bulgyeo cockle 4. Wando laver, etc. 5. Gijang brown seaweed 6. Jangheung pen shell

Youngduk big crab


Collective Marks for GI in Korea

Korean Intellectual Property Office (KIPO)

Products Date of registration

1 Jangheung shiitake mushroom

2006. 10. 26. (also

registered under APQC

Act)

2 Goheung yuja (citron)

2007. 2. 9. (also registered under APQC Act)

3 Yangyang pine mushroom

2007. 2. 9. (also registered under APQC Act)

Four products, also registered under APQC Act, and one

new product, given notice of allowance on 14 March 2007.


Background for two different GI systems in

Korea GIs have been applied and registered by the

National Agricultural Product Quality Control Service (APQCS) and its GI Registration Committee under APQC Act since 2001.

The GI system under APQC Act was regarded as ‘quality certification’ esp. by the KIPO.

APQCS has been mainly engaged in quality control of agricultural products.

GI provisions in APQC Act give special emphasis to higher quality of GI registered products.

GI Registration Committee tended to pay attention to products’ superior quality.


GI QC

Criteria

Geographica

l conditions

Required Not

required

qualityQuality and other characteristics attributable to geographical factors

Higher quality

required

reputation Required Not required

Range of

geographical area

Specifed Not specified

Period of validity Permanent One year, renewable

GI and Quality Certification



Korea

The KIPO amended the Trademark Act to incorporate GI in the form of a collective mark in Dec. 2004. Agricultural Ministry’s opposition

against the amendment was mediated, with difficulty, by Ministry of Finance and Economy.

GIs may be claimed for double protection for agricultural products under APQC Act and Trademark Act.



Korea

Some critics for double protection of GIs Wasteful use of administration

National APQCS v. KIPO Wasteful use of money and effort

Two applications for one product Confusion of consumers

Two protections for the same product Possible conflicts of rights and jurisdiction

Two separate protection given to different entities in the same region



Korea Where products of an application for a

collective mark for a GI are subject to APQC Act, the Commissioner of KIPO should obtain Agricultural Minister’s opinion on whether a GI is available. (“지리적 표시 해당여부에 관하여” Art. 22bis of Trademark Act)

A reasonable separation of regime may be desirable:

GIs for agricultural products and their processed ones under APQC Act

GIs for industrial products and minerals under Trademark Act


Protection of foreign GIs in Korea

Under APQC Act, Foreign GIs for agricultural products

that go through the same registration procedure and evaluation standards as Korean GIs may also be protected.

If foreigners or Korean citizens want to receive GI protection, they may have to fill out a GI registration form under APQC Act, attach relevant documents, and submit them to National APQCS.


Protection of foreign GIs in Korea

Under Trademark Act, Trademarks may not be registered if they

consist of GIs or include GIs of the origin of wines or spirits in a WTO member state.

Trademark may not be registered if a mark consists solely of a sign that indicates a conspicuous geographical name or an abbreviation of a conspicuous geographical name.

A GI of third countries may be registered as a collective mark if it meets the required conditions.


Thank you.

Geographical Indications in Korea June 2007 Prof. Nohyoung Park Korea University.

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Transcript of Geographical Indications in Korea June 2007 Prof. Nohyoung Park Korea University.