Conditions for protecting geographical indications according to legal regulations

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Article 79 of the 2005 Intellectual Property Law stipulates general conditions for protected geographical indications, specifically:

Article 79. General conditions for protected geographical indications

Geographical indications are protected if they meet the following conditions:

1. Products bearing geographical indications have geographical origin from the area, locality, territory or country corresponding to the geographical indication;

2. Products bearing geographical indications have reputation, quality or characteristics mainly determined by the geographical conditions of the area, locality, territory or country corresponding to that geographical indication.

Accordingly, geographical indications are protected if they meet the following conditions:

Firstly, products bearing geographical indications have geographical origin from the area, locality, territory or country corresponding to the geographical indication, for example, the following products have been protected as geographical indications when Those products originate from corresponding localities: Shan Tuyet Moc Chau tea, Phu Quoc fish sauce, Phan Thiet fish sauce, Buon Me Thuot coffee, Hai Hau Tam Xoan rice (Nam Dinh), Non La (Hue )…

Second , products bearing geographical indications must have a reputation, in which the reputation of products bearing geographical indications is determined by geographical conditions. Determining the level of reputation of a product bearing a geographical indication through the widespread knowledge of that product among relevant and verifiable consumers.

Third , products bearing geographical indications must have specific properties and qualities and they are determined by geographical conditions. The nature and quality of products bearing geographical indications are determined by sensory, qualitative, and quantitative physical, chemical, and biological criteria that can be tested by technical means or by experts according to a defined test method. For example, consumers know Phu Quoc fish sauce with typical properties such as: dark cockroach color, pure, light aroma, very characteristic, no fishy smell and no ammonia due to being produced from fish. fresh and has a salty, sweet taste with a natural fatty taste; or like Thailand’s Petchapun sweet tamarind, which has been protected as a geographical indication with the characteristic properties of having a straight or curved shape, brown skin, smooth and clear tamarind pulp, wet and sticky, slightly soft and without veins. , sweet and fragrant .

illustration. Conditions for protecting geographical indications according to legal regulations

Fourth, there must be an organic relationship between the nature, quality and reputation of the product and geographical conditions. In particular, geographical conditions create the unique characteristics, quality, and reputation of products bearing geographical indications, including unique elements of meteorology, hydrology, geology, topography, and ecosystems. ecological and other natural conditions; unique elements of the producer’s skills and techniques, including the local traditional production process (which may include one, several or all stages, from raw material production, processing converting raw materials to creating products and may include the product packaging step, if that step affects the nature, quality, reputation of the product), if that process is the factor that creates the product. and maintain the characteristics, unique quality, and reputation of products bearing geographical indications, including clear and detailed information that can be checked. If the above information contains confidential information or technical know-how that has not been disclosed or is not widely known outside the locality, then request geographical indication protection and the right to refuse to provide the information. detailed information about that secret or know-how if you do not commit to keeping that information confidential at your request.

An issue currently raised for both international law and each country’s law is whether geographical indications need to cover the entire process of processing, manufacturing and packaging of products in a region. certain or not.

This issue is implemented very strictly by the European Union (EU). For example, the case of Newcastle Brown Ale beer is determined to be only produced and bottled in the city of Newcastle (UK) on the banks of the Tyne River. But in 2004, after receiving a certificate of protected geographical indication (Protected Geographical Indication – PGI), this beer company decided to move to the town of Gateshead on the other side of the Tyne River. Although only separated by a river, Newcastle and Gateshead are two different places, so this beer company later applied to the EU to cancel the restrictions on place names. Finally, in 2007, the EU did not agree and revoked the PGI certification for Newcastle Brown Ale beer.

Similarly, in Vietnam there is the case of Phu Quoc fish sauce. Previously, when Phu Quoc fish sauce was not protected by its name of origin, the fish sauce consumed in Ho Chi Minh City was mainly fish sauce transported in barrels from Phu Quoc to Ho Chi Minh City, then extracted and bottled here. After Phu Quoc fish sauce had its name of origin protected, the Ministry of Fisheries at that time had regulations that the production process of Phu Quoc fish sauce from brewing, drawing, mixing, and packaging must all be carried out in the district. Phu Quoc island. Thus, currently, if businesses in Ho Chi Minh City still maintain the same method as before, that is, shipping barrels of fish sauce from Phu Quoc and then bottling it in Ho Chi Minh City, and if the above products are That product is still labeled “Phu Quoc Fish Sauce” which is a violation of the protected designation of origin/geographical indication. However, whether such a regulation has machinery or not when in the process of producing fish sauce in Phu Quoc, the production facilities have complied with the regulations in the regulations on Phu Quoc fish sauce, for example, processed with anchovies (rate prescribed by regulations) caught in Kien Giang waters, the chuop container is made of wood, the process of marinating the chuop, burying it, pulling it out, mixing fish sauce,… are all carried out. technically correct (i) and here the only difference is that the bottling process is carried out in a different geographical area that is not Phu Quoc island district while Phu Quoc fish sauce production facilities and other That Phu Quoc fish sauce bottling facility can prove that the transportation and bottling of fish sauce does not change the nature and quality of the product (ii) Because, according to the provisions of Circular No. 01/2007/ TT- BKHCN dated February 14, 2007 of the Ministry of Science and Technology, although the local traditional product production process will be considered one of the factors of geographical conditions if that process is the factor that creates and maintain the characteristics, specific quality, and reputation of products bearing geographical indications, and in which, product packaging will also be considered one of the inseparable stages of that process when Packaging stages affect the properties, quality, and reputation of the product.

Fifth, the product is not subject to protection as a geographical indication, meaning it is not subject to the following subjects (Article 80 of the Intellectual Property Law 2005).

– Names and instructions have become the common names of goods in Vietnam;

– Geographical indications of foreign countries in which geographical indications are not protected, have had their protection terminated or are no longer used;

– A geographical indication is identical or similar to a currently protected trademark, if the use of that geographical indication is made, it will cause confusion about the origin of the product;

– Geographical indications mislead consumers about the true geographical origin of the product bearing that geographical indication.

Article 80. Objects not protected as geographical indications

The following objects are not protected as geographical indications:

1. Names and indications have become common names of goods in Vietnam;

2. Geographical indications of foreign countries in which geographical indications are not protected, have had their protection terminated or are no longer used;

3. A geographical indication is identical or similar to a currently protected trademark, if the use of that geographical indication is made, it will cause confusion about the origin of the product;

4. Geographical indications mislead consumers about the true geographical origin of the product bearing that geographical indication

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