The China-EU Agreement on Geographical Indications (the GI Agreement)[1] is three years old this year. It was the first – and is so far the only – trade agreement between the two parties. In this article your author, like the Roman god Janus, both looks back at the history of the negotiations and the challenges both sides overcame to reach this landmark Agreement, and forwards to the opportunities and challenges it presents in the years to come.
When negotiations opened in 2010 few were optimistic that an Agreement would be reached. The gaps between the two sides seemed unbridgeable. The EU for its part had decades of experience in both managing a relatively harmonised domestic GI system and negotiating GI protection in the framework of its Free Trade Agreements with many partners. It had a well-tried, somewhat inflexible approach to what an Agreement should, as a minimum, cover: protection at least to the level of Article 23 of the WTO TRIPS Agreement; ex officio administrative enforcement; the co-existence between, or in limited instances the phasing out of prior trade marks that conflicted with a later in time GI; a prohibition on protected names becoming generic; and no fees or lengthy approval procedures. And in the EU system an international treaty is superior to domestic law.
On the other hand the EU had no legal basis to protect non-agricultural GIs in any Agreement beyond the level of the TRIPS Agreement; and it had a practice of not permitting the use of the prized EU GI logos in the framework of bilateral Agreements.
China was in a very different starting position. This was the first GI Agreement it had negotiated, and so it was understandably cautious before making commitments. Secondly, the Chinese legal system does not privilege international agreements over domestic law, which meant that China would need to ensure consistency between the two. China when negotiations began had essentially three parallel and sometimes competing systems of GI protection: protection as collective marks by the Chinese Trade Mark Office, protection via a sui generis system managed by the then General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), and a system for primary production administered by the Chinese Ministry of Agriculture and Rural Affairs (MARA).
China claimed too that it was impossible to allow co-existence between Trade Marks and a later GI (this was not correct as it was pointed out that “Jinhua Ham” was both a GI and a TM in China). China’s domestic regime did not preclude a protected term from becoming generic; and its system foresaw the payment of fees and an obligation to register all GI users. Contrary to the EU, China had an impressive stock of non-agricultural GIs – silks, stoneware, porcelains, handicrafts etc – which it understandably wished to see protected at EU level.
China made the first masterly move in the negotiations by suggesting that work be based on three seemingly simple principles. One, that the Agreement must be mutually beneficial. Two, that it must provide advantages beyond the normal registration systems for GIs in terms of both substance and procedures. And three, the Parties should not preclude changing their laws or regulations if needed to conclude an Agreement. The EU side readily signed up to these three principles, which were unarguable. It is a testimony to the quality of the Chinese Ministry of Commerce (MofCom) negotiator at the time – Dr YANG Guohua, now a Professor of trade law at Tsinghua University – that he was able to persuade some initially sceptical regulatory agencies, to accept to work on this basis.
Thanks to these principles, quite early on in the negotiations it was agreed to foresee a level of protection to foodstuffs equivalent to Article 23 of the TRIPS Agreement (that Article gives higher protection for wines and spirits only). Secondly, although this took some more time, it was agreed that the procedures for obtaining protection under the Agreement should be streamlined. A list of 100[2] GIs of each side would be protected en bloc on the basis of just a 3-4 page Summary of Specifications, instead of the tens of pages of proof of a GI that accompanies an application under domestic law and typically several years of scrutiny and processing. The Parties recognised that by mutually recognising their respective GI systems, they could forego the lengthy case by case scrutiny. If China has recognised that this is a GI in China, the EU respects the Chinese system and is not going to challenge that recognition, and vice-versa.
This concept of systems recognition – which obviated the case by case detailed management of each application – was aided by the high degree of trust that developed between the negotiators and regulators of each side, including through many site visits in both China and Europe to see GIs on the ground. This author visited GI producers in places as disparate as Tianjin, Shaanxi province and Hainan Island; and brought the Chinese team in turn to Malta, the Bordelais wine and prune region of France, northeast Belgium, Italy, and the salmon fisheries and whisky distilleries of Scotland! Trust is built easily over a good glass of malt whisky or a perfect dish of Chinese seafood!
Other issues took longer to agree. China was in the process between 2014 and 2016 of reforming its domestic GI system – now consolidated under the Chinese National Intellectual Property Office (CNIPA) which inevitably led to delays. The government also took time to persuade the Trade Mark office to accept the principle that a later GI could coexist with or even lead to the phasing out of a Trade Mark, but it did so. By this time Dr YANG had been replaced as negotiator by Dr CHEN Fu Li another outstanding and above all reasonable person with whom it was possible to develop great mutual trust.
China at this stage faced down considerable US and Australian opposition to giving GI protection to famous EU cheese and wine names like “Feta”, “Gorgonzola” or “Porto”, which the new world producers claimed were generic. Fortuitously, a number of Taiwanese tea producers had opposed the protection in Europe of “Lapsang Souchong” tea, and so Europe had also bargaining chips with which to insist that both sides protect their iconic names. And China took time to accept that a GI, once protected, could not fall into genericness, or that each GI producer could avoid to have to register itself in China. But again China took some tough internal decisions and interpreted its domestic rules pragmatically on the basis of systems’ recognition as described above.
The EU for its part faced internal opposition to giving Chinese producers the right to use the GI logo, an illogical position. As the negotiator I recognised it was important for China to use the logo = an internationally recognised mark of quality, with value as a marketing tool both in Europe but also in China and around Asia[3]. As for non-agricultural GIs, in the absence of an EU-wide protection system the EU proposed a compromise solution. As and when there would be such a system, a list of Chinese GIs would be prioritised, and in the meantime the EU side, despite internal opposition from some Member States stretched the legal interpretation of its existing system to its limits and agreed to protect some silk and other products derived from agricultural production.
Again trust here was key. China trusted the EU’s affirmation that ultimately it would set up a system for protecting non-agricultural GI’s, which happily it has now done. EU legislation on Craft and Industrial GI’s entered into force in 2023.
From the foregoing one can see how, over time, a global balance was struck, and how the three principles enunciated by China at the very start were achieved.
Negotiators initialled the text in the autumn of 2018. Dr YE Jun, Director General of the Treaty and Law Department of MofCom was by then the chief negotiator on the Chinese side : a shrewd, very pleasant man with a passion for basketball. We got on well. Formal signature took place in 2020 once the Agreement had passed the EU Council and European Parliament and China’s institutions, and the Agreement entered into force the 1 March 2021.
Before that however, at the end of 2019, Europe’s Agricultural Commissioner Phil Hogan and I travelled to Beijing for a ‘political’ signing ceremony with then MofCom Minister ZHONG Shan, at the Great Hall of the People and in the presence of President Xi, and French President Emmanuel Macron who was on a State Visit and naturally keen to support the Agreement. The following year President XI in a lengthy speech to the Political Bureau of the CPC Central Committee stressed the importance of improving intellectual property protection in China and made specific reference to the value of GIs for China’s cultural heritage and rural development.
The Future
So let us look ahead. The two Parties have several tasks before them. First is to ensure the full implementation of the current Agreement. That encompasses training of Trade Mark examiners to ensure they spot and reject applications that conflict with a protected GI name; developing the capacities of GI producer groups, some of whom are underfunded and not well organised; strengthening the enforcement capacity at the regional and local level; and engaging in more marketing and promotional activities to maximise the sales and appreciation by consumers of the GIs protected. Chinese GIs need to be better known in Europe. Two distinguished China based organisations – the China-Europe Association and the Chinese agency CEATEC[4] – are each playing an instrumental role in the promotion of GIs in both regions and in ensuring faithful implementation of the Agreement.
Secondly the Parties must complete a built-in agenda of adding to the Agreement an additional 175 GIs of each side. That work to expand the coverage is on track for completion before the Agreement’s deadline of March 2025. The built in agenda includes too the highly technical but important exercise of granting Protected Designation of Origin (PDO) status to several Chinese GIs that seek it.A PDO is effectively a “Premier League” GI to borrow a footballing metaphor.
Thirdly, with the new EU Craft Legislation now approved and applicable as of 1 January 2025, thought must be given as to how and when to bring the list of Chinese non-agricultural GIs into the Agreement, and potentially seek protection in China for some European craft GIs too.
And finally, China and the EU surely have an interest to use the example of their GI cooperation to promote the concept of GIs worldwide. In that way the Parties’ GIs will obtain greater commercial benefits and their GI systems more international recognition. China for its part is well placed now to negotiate agreements with other countries, including countries like Japan or Singapore or Vietnam or Mexico with whom the EU has Agreements. China is also technically now in a position to consider joining the recent Geneva Act of the Lisbon Agreement of the UN’s World Intellectual Property Organisation (WIPO) which offers a kind of one-stop registration of GIs amongst its growing number of Members. And China, thanks to the GI Agreement with the EU and its own domestic efforts is also in a position to publicise its GIs in other bodies such as the International Organisation for Wine and Vine (OIV), or the Swiss-based NGO OriGIn which represents the interests of GI producer groups worldwide.
This is a full agenda but with goodwill on both sides the GI Agreement and EU-China relations can be even more fruitful. The trade relationship between China and the EU has its ups and downs, sometimes there are trade tensions, even disputes. But at least in the field of GI’s there is now a history of genuine partnership, and the Agreement has served to ensure that in the all-important bilateral agri-food relationship, trade friction has been kept to a minimum. May this continue.
[1] Full title is Agreement Between the European Union and the Government of the People’s Republic of China on Cooperation on, and Protection of, Geographical Indications.
[2] Four of the 100 GIs were from the UK, so following the UK’s withdrawal from the European Union the EU list was reduced to 96 names.
[3] If a third country GI that registered in the EU following the standard domestic procedure can affix the logo, then why not a GI recognised under an international Agreement?
[4] China-Europe Association for Technical and Economic Cooperation.
