Food and Animal Safety in China

Food safety, certification programmes, animal safety and disease

Livestock legislation

The applicable legislation includes:

• the Food Safety Law;
• the Law on the Quality and Safety of Agricultural Products;
• the Law on Animal Epidemic Prevention;
• the Management Regulations on Slaughtering Live Pigs;
• the Interim Management Regulations on Quality of Meat and Meat Products; and
• the Measures on the Administration of Animal Quarantine.

 

Local regulations on slaughtering livestock and poultry also apply (eg, regulations enacted by the Shanghai local government in this respect that govern the livestock slaughtering within Shanghai).

Meat for export is also governed by the following legislation:

• the Law on Import and Export Commodity Inspection;
• the Law on Entry and Exit Animal and Plant Quarantine;
• the Regulations for the Implementation of the Law on Entry and Exit Animal and Plant Quarantine;
• the Regulations on the Places of Origin of Imports and Exports;
• the Administrative Provisions on the Filing of Export Food Manufacturers; and
• the Measures for the Supervision and Administration of Inspection and Quarantine of Imported and Exported Meat Products.

Food safety regulations for meat and poultry products, etc.

The fundamental legislation on food safety in China is the Food Safety Law (FSL) and its implementing regulations. The FSL governs the following activities within China:

• food production and processing, food sales and catering services;
• production of and trading in food additives;
• production of and trading in food-related products, including food packaging materials, containers, detergents, disinfectants, and tools and equipment that are used in the production of and trading in food;
• use of food additives and food-related products by food producers or traders;
• storage and transport of food; and
• management of the safety of food, food additives and food-related products.

 

The FSL also applies the formulation of relevant quality safety standards and the release of the relevant safety information for edible agricultural products, as well as agricultural inputs, to the marketing of edible agricultural products.

The safety of edible agricultural products is governed by the Law on the Quality and Safety of Agricultural Products.

Food safety is administered by the following four ministry-level authorities:

• the State Administration for Market Regulation (SAMR): domestic food production, distribution, consumption and enforcement, etc; and import and export supervision of food products, etc;
• the Ministry of Agriculture and Rural Affairs (MoA): domestic primary agriculture production, slaughter and genetically modified organism (GMO) oversight, etc; and
• the National Health Commission: food safety risk assessment and surveillance, food safety standard development and unification, and outbreak response, etc.

 

The authorities listed above promulgate the specific regulations in their respective governing fields in the form of administrative regulations, including the following:

• the Administrative Measures for Food Production Licensing;
• the Administrative Measures for Food Operation Licensing;
• the Administrative Measures for the Registration and Recording of Health Food;
• the Administrative Measures for the Registration of Food for Special Medical Purposes;
• the Administrative Measures for the Registration of Formulas of Infant Formula Milk Powder;
• the Administrative Measures for Food Recall;
• the Administrative Measures for the Import and Export of Food;
• the Relevant Applicable Standards for Inspection on Imported Food and Food Additives;
• the Rules on Administrative Licensing of Imported Food without National Food Safety Standards;
• the Administrative Measures for Registration of Overseas Manufacturers of Imported Food;
• the Administration Regulations on Label Inspection and Supervision of Import and Export Pre-packaged Food;
• the Provisions for Administration of the Registration of Foreign Exporters and Agents of Food Products and Consignee of Imported Food Products to China;
• the Administrative Provisions on Recording of Import and Marketing of Imported Food;
• the Administrative Provisions for the Record-Filing of Export Food Manufacturers;
• the Rules of Bad Records Administration on Imported Food;
• the Administrative Measures for New Varieties of Food Additives;
• the Measures for the Supervision and Administration of the Safety of Food Offered through Online Catering Services; and
• the Measures of Investigation of Illegal Conducts Concerning the Safety of Food Sold Online.

 

Another important instrument in the food safety regime is the national food safety standard system. Currently there are more than 600 effective national food safety standards including:

• general standards (eg, contaminates and microbial);
• product standards (eg, dairy products and beverage);
• additive specification (eg, colourant and sweetener);
• food-related products (eg, plastic and metals);
• good practice (eg, hazard analysis and critical control points); and
• testing methods (eg, the physical-chemical method).

Safety enforcement

Food producers or traders violating the law or regulations on food safety will be subject to civil liabilities, or administrative or criminal penalties.

A consumer who has been harmed by food that does not conform to food safety standards may seek compensatory damages from a responsible producer or trader as well as punitive damages of up to 10 times the original sale price.

The measures of administrative enforcement include:

• confiscation of the illegal proceeds, food and food additives illegally produced or traded in, and the tools, equipment, raw materials and other articles used in the illegal production or trading;
• revoking relevant licences;
• ordering a suspension of production or trading;
• an administrative fine; and
• cancelling qualifications to engage in food inspection.

 

Under the criminal law, any food producer or trader that does not comply with food safety standards and any person adding poisonous substances to food is subject to criminal sanctions, including fines, confiscation of property, criminal detention and imprisonment. The death penalty is a potential punishment for very serious food safety incidents.

Certification programmes and regulations for genetically modified foods and organic foods.

Certification of organic foods

The Certification and Accreditation Administration of China (CNCA), a subordinate body to the SAMR, is responsible for issuing the official organic label (via certifiers). It also controls and supervises the accreditation process of all certification bodies and grants licences to individual organic inspectors employed by certifiers. The Administrative Measures for Organic Product Certification (AMOPC) cover a wide range of aspects that encompass the competences of the certification bodies as well as the responsibilities of the competent authorities on monitoring the functioning of the certification activities.

The AMOPC sets forth the responsibilities of certification institutes and the procedures that they must undergo towards the CNCA. Among other responsibilities, a certifier is required to ensure the integrity, objectiveness and truthfulness of the certification process, and make a complete record for archive retention to ensure that the certification process and results are traceable. The records of all activities are kept for five years. Further, certification institutes implement effective follow-up inspections of the certified products and their production and processing methods to ensure that the certification conclusions can continue to meet the certification requirements.

In certain cases of non-compliance or fraudulent practice by the producer, the certifier shall suspend or revoke the certificate and publicise the penalty. The certifier can be fined or even disqualified if it fails to do so.

 

Safety certificate of GMO foods

The law on GMOs places emphasis on improving the GMO cultivation and safety evaluation systems. The purpose of safety evaluation of GMOs is to detect the dangers or potential risks caused by GMOs to humans, animals, plants and microorganisms and the environment.

A safety certificate will be issued to a new GMO that has passed the safety evaluation conducted by the Agriculture GMO Safety Committee of the MoA. Under the GMO Regulations, a safety certificate is mandatorily required to conduct the examination, registration, evaluation or approval of certain GMOs including: transgenic planting seeds; livestock and poultry breeds and aquatic fry; pesticides; veterinary drugs; fertilisers; additives; and other things produced using GMOs or containing GMO ingredients.

Food labelling requirements (including the applicable enacted legislation, enforcement and penalties)

The FSL sets out the general requirements of labelling, mandatory particulars for labels of pre-packaged foods, non-pre-packaged foods and food additives, and special rules for health food, infant formula foods and imported foods, etc. Food and food additives that do not conform to the contents stated on their labels and instructions shall not be sold in the market.

The relevant national standards, including the General Rules for the Labelling of Pre-packaged Foods (GB7718-2011), the General Rules for Nutrition Labelling of Pre-packaged Foods (GB28050-2011) and the General Rules for the Labelling of Food Additives (GB 29924-2013), provide further detailed guidance in their respective aspects.

If the packaged food or food additive is produced or traded without labels or their labels do not conform with the law, the local branches of the SAMR will confiscate the illegal proceeds, food and food additives that were illegally produced or traded in, and may also confiscate the tools, equipment, raw materials and other articles used in the illegal production or trading.

If the value of the food or food additives in the illegal production or trading is less than 10,000 yuan, a fine not less than 5,000 yuan, but not more than 50,000 yuan, will be imposed. If the value of the food or food additives in illegal production or trading is 10,000 yuan or more, a fine not less than five times but not more than 10 times the value of the food will be imposed. In the event of a serious offence, the production or trading will be suspended until the relevant licence is revoked.

If the labels have a defect that does not affect the foods’ safety or does not mislead consumers, the local branches of the SAMR will order the producer or trader to make corrections. In the case of refusal to do so, a fine of not more than 2,000 yuan will be imposed.

If the production enterprise of infant formula foods fails to report the labels to the competent local branch of the SAMR for filing as required by law, the local branch of the SAMR will issue a correction order and warning. In the case of refusal to make corrections, a fine not less than 5,000 yuan, but not more than 50,000 yuan, will be imposed. In the event of a serious offence, the production or trading will be suspended until the relevant licence is revoked.

List the main applicable enacted legislation regarding health of food animals, including transportation and disease outbreak and management.

The principal legislation dealing with the health of food animals is as follows:

• the Law on Animal Epidemic Prevention;
• the Animal Husbandry Law;
• the Administrative Measures for Animal Quarantine; and
• the Law on the Entry and Exit Animals and Plants Quarantine.

Animal movement restrictions

The movement (transportation) of animals is subject to the following legal requirements.

 Quarantine certificate

Before transporting animals, the owner must submit an application to the local animal health supervision institution for quarantine. For the animals and animal products that are to be transported by rail, highway, waterway or air, the consignor must provide the quarantine certificates; otherwise, the carriers will not accept them for transport.

 

Equipment requirement

The vehicles for carrying animals, as well as the bedding, packages and containers, must satisfy the requirements for animal epidemic prevention laid down by the administrative department for veterinary medicine under the State Council.

 

Staff requirement

People who are infected with a zoonosis shall not directly transport susceptible animals.

 

Prohibited circumstances

It is prohibited to transport animals that:

• are in enclosed epidemic areas and related to the outbreak of animal epidemics;
• are in an epidemic area and susceptible to infection;
• have not undergone the quarantine required by law or fail to pass the quarantine;
• have already contracted epidemic diseases or are suspected of having contracted epidemic diseases;
• are deceased (owing to illness or uncertain reasons); and
• do not conform to the regulations of the administrative department for veterinary medicine under the State Council governing animal epidemic prevention.

 

China has not enacted any laws or regulations dealing with the welfare of animals in transport.

Slaughte legislation

In China, livestock slaughtering is deemed to be part of the primary processing of live animals. Local regulations on slaughtering livestock and poultry also apply (eg, regulations enacted by the Shanghai local government in this respect that govern the livestock slaughtering within Shanghai).

Pest control requirements

Plant protection products and most biocidal products are regulated by the Regulation on Pesticide Administration, which covers the registration, production, distribution and use of pesticides, and is administered by the MoA.

The Institute for the Control of Agrochemicals, under the MoA, regulates pesticides manufactured and marketed in China. Pursuant to the revised Regulation on Pesticide Administration 2017, the Review and Registration Committee will be established by the MoA to review and register the pesticide before being marketed and exported to China.

There are also other regulations concerning pesticides, including:

• the Implementation Measures of the Regulation on Pesticide Administration;
• the Management Measures for the Production of Pesticides;
• the Provisions on the Administration of the Restricted Use of Pesticides; and
• the Measures for the Administration of Pesticide Labels and Manuals.

 

To ensure food safety, promote producer compliance with good agricultural practices, and eliminate unnecessary pesticide use to protect the ecological environment, the MoA and the NHFPC have jointly released a new standard on maximum residue limits: the National Food Safety Standard – Maximum Residue Limits for Pesticides in Food (GB 2763–2019).

 

Plant quarantine

The key legislation regulating plant quarantine includes:

• the Regulation on Plant Quarantine;
• the Rules of Implementation of the Regulation on Plant Quarantine;
• the Law on the Entry and Exit Animals and Plants Quarantine; and
• the Rules of Implementation of the Law on the Entry and Exit Animals and Plants Quarantine.

 

The MoA, the State Forestry Administration and the SAMR are responsible for agricultural plant quarantine, forest plant quarantine and import and export plant quarantine respectively. Surveillance, pest outbreaks and invasive species management is undertaken by the National Agro-tech Extension and Service Centre, a public institution directly under the MoA.

 

Animal quarantine

Animal quarantine is mainly governed by the following legislation:

• the Law on Animal Epidemic Prevention;
• the Animal Husbandry Law;
• the Quarantine Law on the Entry and Exit Animals and Plants Quarantine;
• the Rules of Implementation of the Law on the Entry and Exit Animals and Plants Quarantine;
• the Measures on the Administration of Animal Quarantine;
• the Measures on the Quarantine and Administration of Hereditary Substance of Inward Animals; and
• the Administrative Regulations on Breeding Livestock and Poultry

Source: www.lexology.com/library/ Jan Holthuis and Li Jiao [Buren NV]

France : le titulaire d’une marque déchu de ses droits peut se prévaloir de l’atteinte portée à ses droits sur la marque qu’ont pu lui causer les actes de contrefaçon intervenus avant sa déchéance

 

M. B. était titulaire de la marque française semi-figurative « Saint Germain » n° 3 395 502, déposée le 5 décembre 2005 pour désigner, en classes 30, 32 et 33, notamment les boissons alcooliques (à l’exception des bières), cidres, digestifs, vins et spiritueux, extraits ou essences alcooliques. Le 8 juin 2012, M. B. a assigné la société St Dalfour et la société Etablissements Gabriel Boudier (fabricants d’une liqueur de sureau nommée « St-Germain ») et la société Cooper International Spirits (distributeur de cette liqueur) pour contrefaçon de la marque « Saint Germain » n° 3 395 502. Cependant, un arrêt du 11 février 2014, rendu dans une autre affaire, a déchu M. B. de ses droits sur la marque « Saint Germain » à compter du 13 mai 2011. Malgré tout, M. B. a maintenu ses demandes pour la période non couverte par la prescription et antérieure à la déchéance, soit entre le 8 juin 2009 et le 13 mai 2011. Le 13 septembre 2016, la Cour d’appel de Paris a considéré que M. B. ne justifiait d’aucune exploitation de la marque depuis son dépôt. Par conséquent, il ne pouvait arguer d’aucune atteinte au droit de marque. M. B. forma un pourvoi en cassation. Il faisait valoir quele titulaire de la marque peut interdire aux tiers de faire usage, dans la vie des affaires, d’un signe identique ou similaire à sa marque et susceptible de porter atteinte aux fonctions de la marque, sans devoir démontrer un usage sérieux de ladite marque pour ces produits ou ces services.

Les faits ont amené la Cour de cassation a saisir la Cour de justice de l’Union européenne (CJUE) de la question préjudicielle suivante :

« [L’article 5, paragraphe 1, sous b), et les articles 10 et 12 de la directive 2008/95] doivent-ils être interprétés en ce sens que le titulaire, qui n’a jamais exploité sa marque et a été déchu de ses droits sur celle-ci à l’expiration de la période de cinq ans suivant la publication de son enregistrement, peut obtenir l’indemnisation d’un préjudice pour contrefaçon, en invoquant une atteinte portée à la fonction essentielle de sa marque, causée par l’usage par un tiers, antérieurement à la date d’effet de la déchéance, d’un signe similaire à [cette] marque pour désigner des produits ou services identiques ou similaires à ceux pour lesquels [ladite] marque a été enregistrée ? ».

Dans un arrêt du 26 mars 2020, la CJUE a adopté la solution suivante :

« [Les dispositions concernées] laissent aux États membres la faculté de permettre que le titulaire d’une marque déchu de ses droits à l’expiration du délai de cinq ans à compter de son enregistrement pour ne pas avoir fait de cette marque un usage sérieux dans l’État membre concerné pour les produits ou les services pour lesquels elle avait été enregistrée conserve le droit de réclamer l’indemnisation du préjudice subi en raison de l’usage, par un tiers, antérieurement à la date d’effet de la déchéance, d’un signe similaire pour des produits ou des services identiques ou similaires prêtant à confusion avec sa marque » (CJUE, 26 mars 2020, aff. C‑622/18, Cooper International Spirits LLC).

Munie de cette solution, la Cour de cassation a rendu son arrêt le 4 novembre 2020. Elle casse l’arrêt de la cour d’appel de Paris du 13 septembre 2016 et retient la solution suivante :

« la déchéance d’une marque, prononcée en application de l’article L. 714-5 du code de la propriété intellectuelle, ne produisant effet qu’à l’expiration d’une période ininterrompue de cinq ans sans usage sérieux, son titulaire est en droit de se prévaloir de l’atteinte portée à ses droits sur la marque qu’ont pu lui causer les actes de contrefaçon intervenus avant sa déchéance ».

À la suite de quoi l’affaire a été remise devant la Cour d’appel de Paris (autrement composée).

mail@emmanuelgillet.comW

How food fraud plagued the industry in 2020

 

It is fair to say that 2020 was a challenging year with wide-ranging effects, including significant effects on our ongoing efforts to ensure food integrity and prevent fraud in the food system. COVID-19 caused major supply chain disruptions for foods and many other consumer products. It also highlighted challenges in effective tracking and standardization of food fraud-related data.

Let’s take a look at some of the notable food fraud occurrences in 2020:

• Organic Products. The Spanish Guardia Civil investigated an organized crime group that sold pistachios with pesticide residues that were fraudulently labeled as organic, reportedly yielding €6 million in profit. USDA reported fraudulent organic certificates for products including winter squash, leafy greens, collagen peptides powder, blackberries, and avocados. Counterfeit wines with fraudulent DOG, PGI, and organic labels were discovered in Italy.
• Herbs and Spices. Quite a few reports came out of India and Pakistan about adulteration and fraud in the local spice market. One of the most egregious involved the use of animal dung along with various other substances in the production of fraudulent chili powder, coriander powder, turmeric powder, and garam masala spice mix. Greece issued a notification for a turmeric recall following the detection of lead, chromium, and mercury in a sample of the product. Belgium recalled chili pepper for containing an “unauthorized coloring agent.” Reports of research conducted at Queen’s University Belfast also indicated that 25% of sage samples purchased from e-commerce or independent channels in the U.K. were adulterated with other leafy material.
• Dairy Products. India and Pakistan have also reported quite a few incidents of fraud in local markets involving dairy products. These have included reports of counterfeit ghee and fraudulent ghee manufactured with animal fats as well as milk adulterated with a variety of fraudulent substances. The Czech Republic issued a report about Edam cheese that contained vegetable fat instead of milk fat.
• Honey. Greece issued multiple alerts for honey containing sugar syrups and, in one case, caramel colors. Turkey reported a surveillance test that identified foreign sugars in honeycomb.
• Meat and Fish. This European report concluded that the vulnerability to fraud in animal production networks was particularly high during to the COVID-19 pandemic due to the “most widely spread effects in terms of production, logistics, and demand.” Thousands of pounds of seafood were destroyed in Cambodia because they contained a gelatin-like substance. Fraudulent USDA marks of inspection were discovered on chicken imported to the United States from China. Soy protein far exceeding levels that could be expected from cross contamination were identified in sausage in the Czech Republic. In Colombia, a supplier of food for school children was accused of selling donkey and horse meat as beef. Decades of fraud involving halal beef was recently reported in in Malaysia.
• Alcoholic Beverages. To date, our system has captured more than 30 separate incidents of fraud involving wine or other alcoholic beverages in 2020. Many of these involved illegally produced products, some of which contained toxic substances such as methanol. There were also multiple reports of counterfeit wines and whisky. Wines were also adulterated with sugar, flavors, colors and water.

We have currently captured about 70% of the number of incidents for 2020 as compared to 2019, although there are always lags in reporting and data capture, so we expect that number to rise over the coming weeks. These numbers do not appear to bear out predictions about the higher risk of food fraud cited by many groups resulting from the effects of COVID-19. This is likely due in part to reduced surveillance and reporting due to the effects of COVID lockdowns on regulatory and auditing programs. However, as noted in a recent article, we should take seriously food fraud reports that occur against this “backdrop of reduced regulatory oversight during the COVID-19 pandemic.” If public reports are just the tip of the iceburg, 2020 numbers that are close to those reported in 2019 may indeed indicate that the iceburg is actually larger.

Unfortunately, tracking food fraud reports and inferring trends is a difficult task. There is currently no globally standardized system for collection and reporting information on food fraud occurrences, or even standardized definitions for food fraud and the ways in which it happens. Media reports of fraud are challenging to verify and there can be many media reports related to one individual incident, which complicates tracking (especially by automated systems). Reports from official sources are not without their own challenges. Government agencies have varying priorities for their surveillance and testing programs, and these priorities have a direct effect on the data that is reported. Therefore, increases in reports for a particular commodity do not necessarily indicate a trend, they may just reflect an ongoing regulatory priority a particular country. Official sources are also not standardized with respect to how they report food safety or fraud incidents. Two RASFF notifications in 2008 following the discovery of melamine adulteration in milk illustrate this point (see Figure 1). In the first notification for a “milk drink” product, the hazard category was listed as “adulteration/fraud.” However, in the second notification for “chocolate and strawberry flavor body pen sets,” the hazard category was listed as “industrial contaminants,” even though the analytical result was higher.1

Figure 1. RASFF notifications for the detection of melamine in two products.1

What does all of this mean for ensuring food authenticity into 2021? We need to continue efforts to align terminology, track food fraud risk data, and ensure transparency and evaluation of the data that is reported. Alignment and standardization of food fraud reporting would go a long way to improving our understanding of how much food fraud occurs and where. Renewed efforts by global authorities to strengthen food authenticity protections are important. Finally, consumers and industry must continue to demand and ensure authenticity in our food supply. While most food fraud may not have immediate health consequences for consumers, reduced controls can lead to systemic problems and have devastating effects.

Reference

1. Everstine, K., Popping, B., and Gendel, S.M. (2021). Food fraud mitigation: strategic approaches and tools. In R.S. Hellberg, K. Everstine, & S. Sklare (Eds.) Food Fraud – A Global Threat With Public Health and Economic Consequences (pp. 23-44). Elsevier. doi: 10.1016/B978-0-12-817242-1.00015-4

https://foodsafetytech.com/column/food-authenticity-2020-in-review/

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GEOGRAPHICAL INDICATIONS AND INDIA

 

INTRODUCTION

Several products that we come across in our everyday lives, like Darjeeling tea, Scotch Whisky, Swiss Gruyere cheese etc. are associated with some geographical region that acts as a source of origin for these goods; thereby authenticating the quality of the goods.

Geographical Indications (GI) is one of the six Trade-Related Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) that enable comprehensive and effective protection to goods registered as GI goods.[1]

WHAT IS MEANT BY ‘GEOGRAPHICAL INDICATIONS’?

Article 22 of the TRIPS Agreements defines Geographical Indication as "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".1

In simpler words, a GI tag is a proof of where the product is born or produced. Such a tag acts as a signalling device that helps producers to differentiate their products from competing products in the market on the basis of place of origin and enables them to build reputation and goodwill around their products, as a result of which the goods fetch a premium price.

A comparative analysis between two types of Intellectual Property – trademarks and GIs, shall help understanding the basis of GIs. A trademark is a sign used by an enterprise in order to distinguish its goods and services from those of others and in turn gives its owner the right to exclude others from using the same. Similarly, a geographical indication acts as a source of origin and has certain characteristics that exist due to the geographical location. However, it is pertinent to note that a geographical indication is not an individual property for use only by the owner but instead a public property, and allows every producer in the specified region to use the said GI as long as the superior quality of the GI goods is attributable to the said region.

Apart from acting as a source identifier, a GI performs other functions as well. Some of the said functions are as follows:

i) Provides an indication of quality of the goods: A GI tag symbolises that the specified goods have special qualities as a result of their origin and the said qualities will not be present in other goods of the same category. A GI guarantees that the quality of the goods meets the expectations of the end consumer.

ii) Culture protecting function:A GI protects local culture by preserving traditional productions methods, habits of consumption and cultural identity. 

iv) Boosting the economy as a result of increase in exports: GIs promote economic prosperity by boosting exports as there is a higher demand for goods with GI tags since they let consumers know that the goods come from an area where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographic origin.

GEOGRAPHICAL INDICATIONS AND INDIA

India has a diverse landscape, an extensive rural network and several indigenous goods in the form of handicrafts (Kani Shawl, Bastar Iron Craft) as well as local produce (Nashik Grapes, Mizo Chilly). As a result of being richly endowed with natural and agricultural products, effective protection for GIs was of extreme importance for India.

Thus, in view of the above and in compliance with the TRIPS Agreement of the WTO, 'The Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act, 1999) came into force to provide protection to the goods registered under the Act.

The object of the Geographical Indications of Goods (Registration and Protection) Act, 1999, is threefold,

1. By specific law governing the geographical indication of goods in the country which could adequately protect the interest of producers of such goods,

2. To exclude unauthorized persons from misusing geographical indications and to protect consumers from deception and,

3. To promote goods bearing Indian Geographical Indication in the export market.[2]

Further, as per Section 2(1)(e) of the G1 Act, 1999[3], a geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.

A striking feature of Indian GIs is the broad variety of product categories which they cater to. The list ranges from agricultural and horticultural products to textiles, handicrafts, paintings and beverages, among other things.

As per Section 11(a) of the GI Act, 1999[4], an application for registration can be made in writing with the Registrar by an association of persons or producers or any organization or authority established by or under any law, provided the same is in the interest of the producers of the concerned goods.

In order to strengthen GI protection, India submitted two proposals at WTO on Intellectual Property Rights issues covering geographical indications. Additionally, India along with Cuba, Egypt, Indonesia and Pakistan also submitted a joint proposal requesting the additional protection given to wines and spirits, to be extended to  other products  as  well. In the Indian context, this shall help export of agricultural and indigenous products like Basmati rice, Darjeeling tea, alphonso mangoes, which are in abundance in India.

As per the available data, India holds more than 85% share of the global ‘Basmati’ exports. Further, the European Union had a share of about 8% in India’s total basmati rice exports during April-May 2020. Thus, European Union is a major market for Indian products and produce specially basmati rice. Recently, the European Commission has also published India’s GI application for ‘Basmati’ rice in the European Union. 

Further, in another recent matter, the mark ‘KASHMIR’, applied for in respect of furniture, has been accepted by the Romanian IP Office (OSIM). Not only is KASHMIR a commonly known place, but also is closely associated and well-known with various handicrafts, including wooden furniture.

 Out of 370 registered GI names on the Indian GI Register, approximately 60% are for handicrafts and in view of the same, one of the issues pertinent for India is the protection of its handicrafts in the European Union, as the European Union has no laws to protect non-agricultural goods under its GI laws.

CONCLUSION

In view of the above, a GI conveys an assurance of quality and distinctiveness, which is an outcome of its place of origin. Further, in today’s globalized world, a GI guards the local culture and tradition from being exploited by outsiders using the GI in order to mislead the customers into believing that the said goods belong to a particular region and thus possess the distinctive quality.

As is mentioned in ‘Embedding Local Places in Global Spaces: Geographical Indications as a Territorial Development Strategy (2010)’, GI status is very unique in the sense that it provides ‘a means of ensuring that control over production and sales of a product stays within a local area, but at the same time [it] makes use of extra local [foreign] markets’.

Chadha & Chadha Intellectual Property Law Firm - Avanee Tewari

[1] WTO, 2004 

[2] Geographical Indications of Goods (Registration and Protection) Act, 1999 

[3] Section 2 (e): "geographical indication", in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. 

[4] Section 11. Application for Registration - (1) Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication. 

"Too many cooks… 'Fit Kitchen' trade mark infringed" By Ben Mark*

UK: The Intellectual Property Enterprise Court issues judgment over use of 
‘Fit Kitchen’ trade mark

Introduction

On 29 July, Fit Kitchen Limited (FKL) won its case for trade mark infringement and passing off against Scratch Meals Limited (SML).

Both FKL and SML provide healthy pre-prepared meals: FKL via an online subscription site, which allows users to customise meal choices, based on their individual macros and dietary preferences and SML, through the manufacture and sale of products to supermarkets.

FKL's products are sold under a stylised logo containing the words 'Fit Kitchen'. The logo has been protected as a UK trade mark since August 2016. Between December 2016 - November 2019, SML also sold products under the sign 'Fit Kitchen'. FKL therefore issued proceedings for trade mark infringement and passing off. SML denied the allegations and counterclaimed, seeking revocation of FKL's trade mark on grounds of bad faith.

Bad faith?

The assertion of bad faith related to the fact that, for a brief time, FKL had been dissolved and removed from the register of companies, for failing to file accounts at Companies House. In 2017, FKL was restored but its trade mark application had been filed during the intervening period (i.e. before its restoration). SML therefore argued that the application had been filed in bad faith and amounted to "an act which fell short of the standards of acceptable commercial behaviour observed by reasonable and experienced men in this area". The Court quickly dismissed this argument for two reasons: firstly, because once restored, a company is deemed to have existed at all times; and secondly, because the second claimant (who was the co-founder of FKL) was unaware that the company had been struck off and had continued to trade, under the FKL banner, throughout.

When considering FKL's infringement claim, the Court found that this failed under s10(3) of the Trade Marks Act 1994 (TMA) (detriment and/or taking unfair advantage of the repute of a trade mark), on the basis that FKL's trade mark did not have the requisite reputation at the relevant time. FKL's claim under 10(2) TMA (likelihood of confusion) was however successful, in some part due to considerable evidence of actual confusion between the parties' products (65 instances, in total, were presented to the Court). Despite lacking the necessary reputation to succeed under s10(3) TMA, FKL's claim for passing off was also successful.

Key takeaways

FKL is a relatively small business with a modest turnover, As the considerably larger entity, both in terms of revenue and operations, SML may have hoped to negate a likelihood of confusion and that the Court would find that FKL had not built up enough reputation and goodwill in its 'Fit Kitchen' brand to succeed with its claims under s10(3) TMA and in passing off. The case however serves as an important reminder that the threshold for establishing goodwill in passing off claims is lower than the threshold for establishing reputation under s10(3) TMA. It also reiterates that whilst evidence of actual confusion is not necessary to succeed in a claim under s10(2) TMA, it goes a long way.

* Ben Mark is a Partner in IP & Technology at RPC in London. Ben can be contacted at ben.mark@rpc.co.uk.