GEOGRAPHICAL INDICATIONS IN JAPAN JURISDICTION REPORT: JAPAN
Ryo Maruyama Kyosei International Patent Office
Te legal system relating to geographical indications in Japan is divided into three major categories: the Unfair Competition Prevention Law, regulations relating to the application of the Law Concerning Liquor Business Associations and Measures for Securing Revenue from Liquor Tax, and the regionally-based collective trademark system. Of these three, the regionally-based collective trademark system is the most usable for trademark rights owners in regard to geographical indications, because it is the responsibility of the infringer to prove that it was not negligent.
During the five years that have passed since the regionally-based collective trademark system was introduced in Japan, the importance of the system has been well recognised. Te number of regionally-based collective trademark applications filed with the Japan Patent Office was 698 in 2006, 110 in 2007, 71 in 2008 and 25 as of September in 2009. Organising a regional association to protect a specific geographical indication and brand name, which is one of the requirements for a regionally-based collective trademark, is still actively pursued in many places in Japan, and such activities are oſten reported in the media.
Unfortunately, however, there have been many cases in which, although a regional brand is registered and protected as a regionally-based collective trademark in Japan, the owner is not able to establish the brand in commerce because of defective management and/or defective use of the brand. Except for in a handful of successful cases, many registered regionally-based collective trademarks in the fields of agriculture, fisheries and foodstuffs fail to establish themselves as brands, despite the fact that Japan especially wants to achieve this so that the trademarks and their products will appeal to foreign markets. One of the reasons for the failure relates to problems inherent in the regionally-based collective trademark system.
Tis differs from European systems, such as the Protected Designation of Origin and Protected Geographical Indication. In Japan’s system, a brand in an area that is not the product’s place of origin can be registered as a regionally-based collective trademark, and standards concerning the production or quality of goods are leſt to the association’s self-regulation rules. Moreover, because in principle, quality control and measures against counterfeit goods are undertaken by a trademark’s owner, government regulations relating to these aspects are far weaker than those in the EU.
However, in order to establish a regional trademark as a brand, the public and private sectors must work together so that natural features, such as the region’s climate and soil, its history and culture, can be infused into the trademark. Although the EU’s Protected Geographical Indication system has strength in that the government both regulates trademark references to a region’s natural features and history/culture, and guarantees the
quality of the goods covered by a brand, the regionally-based collective trademark system cannot be established as rigorously in Japan as its counterpart in the EU. Tis is because of the need in Japan to provide for the co-existence of both regionally-based collective trademarks and other existing trademarks. Terefore, a regionally-based collective trademark in Japan might lack the essence of geographical indication and become a mere name of a regional brand.
In Japan, the Ministry of Agriculture, Forestry and Fisheries is now beginning to take action to strengthen geographical indications and establish regional brands. We expect that the ministry, by learning much from the EU, will establish a system that secures, protects and guarantees quality, benefiting both agricultural industries and consumers.
We Japanese hope that foreign brand owners with established regional brands will utilise Japan’s regionally-based collective trademark system and, in that way, protect their geographical indications in Japan. Tus far, however, only four foreign parties have applied for regionally-based collective trademarks in Japan. It is not certain whether this is due to problems inherent in the system or due to lack of international familiarity with it. In any case, we Japanese should pay attention to the future reformation of the system and to designing a system that will have appeal internationally.
Ryo Maruyama is a patent attorney and vice president of Kyosei International Patent Office. He can be contacted at:
kyosei@tkc.att.ne.jp
86 World Intellectual Property Review November/December 2010
www.worldipreview.com
“ IN JAPAN’S SYSTEM, A BRAND IN AN AREA THAT IS NOT THE PRODUCT’S PLACE OF ORIGIN CAN BE REGISTERED AS A REGIONALLY-BASED COLLECTIVE TRADEMARK, AND STANDARDS CONCERNING THE PRODUCTION OR QUALITY OF GOODS ARE LEFT TO THE ASSOCIATION’S SELF-REGULATION RULES.”
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