The Chinese Trademark Office’s refusal to register Shenzhen Ying Jun Wine Company’s mark “FRACOGNAC” because it is a geographic indicator continues a tradition of stringent registration standards in geographical indicators despite China’s sometimes lax enforcement in other areas.
China, a country where a good’s location of origin can be as important to consumers as the company producing the goods, will refuse to register a trademark that incorporates a geographical indication if that indication is false or misleading. The Chinese wine and spirit company Shenzhen Ying Jun attempted to register the mark “FRACOGNAC,” a mark which the Bureau National Interprofessionnel du Cognac (BNIC) and the Institut National de l’Origine et de la Qualité (INAO) opposed.
This is the second time Shenzhen Ying Jun has had a mark for “FRACOGNAC” within Class 33 of the Nice Convention (Alcoholic Drinks except beer) denied. In both applications the BNIC and INAO argued, and the Chinese Trademark Office (CTO) agreed that the use of FRA, a common indicator for the French Republic, combined with the geographic indicator Cognac would mislead the public, even if the product were clearly marked with a different origin in Chinese.
Cognac is closely protected by BNIC and INAO as a geographic indicator as well as a standard of quality, a common trait among geographic indicators. Cognac is a brandy named for the wine growing region surrounding the town of Cognac in southwestern France. In addition to being produced from grapes grown in the region it must meet specific distilling requirements to receive the “cognac” mark. China has a large market for the drink, which has encouraged domestic production of brandy in the cognac style.
China established domestic trademark protection in 1979 and has since become a member of the Paris Union and a signatory of the TRIPS Agreement. Chinese trademark law prohibits the registration of a mark that suggests a geographic origin when the goods being represented by that mark do not originate from that geographic region.
Generally a mark is said to be geographically indicative when it “identifies a good as originating in the territory [of a given state] or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin.” TRIPS § 3, Art. 22. Geographical Indications are most commonly applied to food and agricultural products (i.e. Champagne, Roquefort) because the environment the product is created in imparts unique characteristics on or within the product.
The United States has included clauses in trade agreements allowing for the use and continued registration where a mark has been used in commerce for more than ten years or was registered or applied for in good faith. While the US has frustrated the European community with its stance on geographical indications, China has fulfilled their treaty obligations in this area. This may stem from the fact that China, like Europe, has a long tradition of regionally specific products, especially foodstuffs (i.e. Sichuan peppercorn.) While China has been admonished by the international trade community for their lax enforcement on goods with infringing marks or which have misappropriated copyrights, as evidenced by the fact that Fracognac can be purchased in China, the CTO has taken a hard line stance against registering marks with misleading geographic indicators.