Somebody asked me this question: Can Korea Ginseng be a geographical indication?
The answer depends on the jurisdiction. Under Korean law, the answer would be no. Under EU law, the answer might be yes or no (meaning I don’t know). Under the US law, the answer would be no.
Let’s first state a fact. Korea Ginseng is a registered trademark in Korea. However, it’s not registered as a GI in Korea. But I don’t base my answer simply on the fact.
What if somebody files an application for Korea Ginseng as GI?
Under the Agricultural Product Quality Control Act of Korea,
(1) an applicant for a GI must be a producer (or producer organization) or a processor (or processor organization) for the agricultural product (ginseng in this case) for the GI;
(2) the agricultural product (ginseng) must be well known domestically or abroad as excellent good (the threshold is very low though);
(3) the quality, reputation or other characteristic of the good is essentially attributable to its geographical origin; (this is TRIPS language);
(4) the product is wholly made of agricultural goods produced in the geographical region or made of the agricultural goods as its main ingredients; (compare with EC GI law)
There are some other minor things but I’ll skip it.
Briefly, the Korean GI law adopts the structure of the EC GI law but the specifics are somewhat different.
(1) The formality of GI
EC law says a GI is a ‘geographical indication’ means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a food stuff. EC Reg. No. 510/2006, Art. 2.1(b)
The law reflects the custom in the EU where geographical names per se were used as brand names.
Korean law follows the TRIPS definition in terms of the formality of GI. It allows any “indication.” Most of the Korean GIs are made up of the combination of geographical names and generic product name. Korean law has more leg room in terms of formality. European GIs will definitely pass the formality requirement under Korean GI law, but I doubt the vice versa will hold.
(2) Geographical Scope
EC law says a country name can be a GI. But Korean law isn’t clear about it. This issue is tied up with the “essentially attributable” part. Can a quality, reputation, or other characteristic be essentially attributable to a country as a whole?
A quality of an agricultural product may not be essentially attributable to a country in usual cases unless the country is extremely undersized.
A reputation, however, may be essentially attributable to a country.
Other characteristic (imagine) can be essentially attributable to a country.
(3) Applicant qualification
The amended EC GI law broadens the scope of applicants. It allows a natural person, a legal person, and a producer group to be an applicant. Korean law is a little restrictive here. It allows only producer group or a producer to be an applicant. And “producer group” or a “producer” must be registered under the Agriculture Act. Ring a bell? Yeah, it can be a national treatment problem under the WTO and TRIPs.
Aside from it, can there be a producer producing ginseng in Korea under the Agriculture Act or under the EC GI law? Can there be a producer group in that sense? Negative for both. So, Korea Ginseing will fail the qualification requirement.
So, I’m very doubtful that Korea Ginseng will be registrable as GI under Korean law.
Under the EC GI law, honestly I don’t know, but I doubt it too.
Chinese law has only one provision GI, which is Article 16 of the Trademark Act of China. I doubt the single provision will cast any light on this issue.