Japan: Geographic Indications protected in Japan
by Kozo Yabe (YUASA and HARA – Japan)
Geographic Indications (“GI”) are protected in Japan. However, the Japanese system follows more administrative measures protecting certain qualified product brands for the agricultural, forestry, and fishery industries. The GI system is separate from the Regional Collective Trademarks (“RCTM”) run by the Japan Patent Office (“JPO”). Indeed, users should learn the basic differences between GI and RCTM, to maximize legal protection for their brands.
1. GI System in Japan
GIs offer countries the ability to create regional brands and afford them the same protections as other intellectual property. The World Trade Organization defines GIs 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 geographic origin” (TRIPS Agreement Art. 22.1).
In Japan, GIs are regulated by the Ministry of Agriculture, Forestry, and Fisheries (“MAFF”) through the Geographical Indication Act, enacted in June 2015.
Like other countries, the Japanese have instituted GIs to protect regional brands which have unique production methods and natural characteristics such as regional climate and soil conditions.
The Japanese GI system aims to achieve four main goals: (1) differentiation in regional product brands reflected in pricing, (2) enablement of producers to protect their own brands without legal expenses, (3) quality standards for GI branded products and (4) overseas expansion of Japanese products. Comparing RCTMs with the Trademark Act is very different because RCTMs intend to protect the goodwill and trust in a certain identifier of goods/products for a regional group of such goods/products and avoid any confusion regarding the source among consumers.
2. Registration process, examples and enforcement
The registration process for GIs in Japan is followed by a lengthy quality control period where groups of producers/processors provide guidance and conduct inspections to comply with production methods stipulated in the specification, and MAFF ensures production processes are conducted appropriately. After a producer group of a regional product applies to MAFF for registration, MAFF takes up to 3 months to make its decision which involves publication of the application process to determine if there is any opposition to the application. If cleared, the application for registration will be determined after consulting with experts with specialized knowledge and experience.
MAFF may issue injunctions and penal provisions to ensure that only those subject products with GIs meet their strict selling standards. Any unlawful use of a GI will result in a criminal penalty of up to 5 years imprisonment or a fine of up to 5 million JPY for an individual and/or up to 300 million JPY for a corporation.
Currently there are only 21 granted GIs, including Aomori Cassis, Tajima Beef, Kobe Beef, Yubari Melon, Iyo Raw Silk, and Miwa Somen. http://www.maff.go.jp/e/policies/intel/gi_act/register.html
6 GI applications are pending for products including Ginkgo Nuts, Turnip, Rice cakes, Burdock and Freshwater clam. The Publication of Applications is available on MAFF’s website. http://www.maff.go.jp/e/policies/intel/gi_act/notice.html
The registrant group of GIs has to also use the “GI Mark” designed by MAFF with their brand on agricultural and fishery products to show that it is certified as a GI.
Any unlawful use of a GI Mark is subject to an administrative injunction by MAFF and/or criminal penalties such as up to 3 years imprisonment or a fine of up to 3 million JPY for an individual and/or up to 100 million JPY for a corporation. http://www.maff.go.jp/j/shokusan/gi_act/gi_mark/index.html