Scotch whisky obtains AQSIQ-administered GI protection
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On November 8 2010 it was announced that the Scotch Whisky Association had obtained approval for a sui generis form of geographical indication (GI) protection for Scotch whisky, administered by the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ). This is a particularly noteworthy development since only two of the 1036 names to be granted AQSIQ-administered GI protection are foreign - the first being Cognac, which was granted protection in December 2009.
The Scotch Whisky Association had previously sought, and was granted, a form of GI protection under China’s Trademark Law, which is administered by the State Administration of Industry and Commerce (SAIC). Under the SAIC-administered GI protection system, protection is granted by way of certification or collective mark registration - Scotch whisky being assigned the latter (for further details please see "Scotch whisky recognised as geographical indication"). These registrations, however, are intended mainly for the purpose of market supervision and regulation, with a focus on consumer protection.
By seeking GI protection under both trademark law and the AQSIQ regulations, the Scotch Whisky Association was able to obtain both a broader protection and an increased ability to enforce its rights.
While the SAIC-administered GI protection draws primarily on trademark law and regulations, due to gaps and discrepancies between the various statutory instruments, ambiguity exists in defining those allowed to use the mark and the requisite nexus between said persons and the permitted geographic location and/or production area of the product. Therefore, the ability to rely on certification and collective mark registration against unauthorised use can be complicated by the lack of practice guidelines and unified laws.
The AQSIQ-administered GI protection system, on the other hand, tends to focus less on members of the permitted group of use, and more on assurance of quality, including technical parameters of production and specification of raw materials. Nevertheless, because protection under the AQSIQ regulations is discretionary, it is not entirely predictable.
While both the SAIC and the AQSIQ GI protection systems afford protection to GIs, in the absence of mandatory rules on quality and standards, and due to the subjective nature of product assessment, each system lacks predictability. Given that neither system is perfect, the Scotch Whisky Association has done well to seek GI protection under both the SAIC and the AQSIQ GI protection systems. Others seeking GI protection in China would be well advised to do likewise.
George Chan and Kaitlin Davies, Rouse, Beijing
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