Regulatory bodies and collective action against counterfeiting
在本栏目的上一期内容中，我们了解到葡萄酒行业作为一种严重依赖地理环境及气候等因素的产业的相关法律保护与防范侵权的难点和痛点，更为大家介绍了几种防范侵权的协会组织及它们所作出的努力。本期我们将为大家举例介绍葡萄酒行业的部分组织如何应对假冒侵权行为，保护葡萄酒品牌、产地与生产商的合法权益。
熟悉葡萄酒的朋友都知道，法国葡萄酒大体分为四个等级，即：日常餐酒、地区餐酒、优良地区酒和法定产区酒。法国的产区标示酒基本相当于欧盟层面的PDO（意指原产地保护）及PGI（意指受保护的地理标志）酒。可见葡萄酒行业都有土壤主义情结，对葡萄酒的产地和品牌名称更是极其重视。
INAO，即法国国家原产地命名与质量管理局，多年来一直致力于努力保护法国的原产地标识以及产地、名称，并在中国积极推广葡萄酒业务。自2008年至2015年间，该机构在中国的活跃度大大提升。他们在工作中发现，对法国地理商标的抢注案例在2014年上升至60例，并且该数字居高不下。这些商标抢注者中，有一部分是恶意抢注以获取利润的黑心商家。对于这类恶性事件，INAO并没有坐视不管，且已向国家工商行政管理总局商标局进行了举报与诉讼，防止更多侵犯法国地理商标的情况出现。但随着侵权案件的增加，打击侵权的预算也逐步吃紧。
但是，INAO“不是一个人在战斗”，部分区域组织也加入到了打击侵权行为的队伍中来。法国波尔多葡萄酒行业协会CIVB多年来也一直致力于打击葡萄酒售假侵权行为。2011年初，他们曾委托专业调查人员组建团队对中国的假冒葡萄酒产品进行调查。根据调查结果显示，假酒至少对该地区的酒水行业造成了高达3000万欧元的巨额损失。虽然不少组织甚至个人查到了大量假酒，但由于监管机构人员对葡萄酒知识的了解不足，很多侵权者仍得不到有效的惩罚，维权成功案例大多出现在一线城市。因此，在我国全国范围内的后期执法力度上，葡萄酒组织维权行为影响依然有限。但在业内人士的共同努力下，相信制假售价与侵权行为将得到显著改善。
In our previous articles we discussed wine’s history as a product heavily reliant on geography, soil quality, and climate, or terrain for its unique characteristics, the importance of regional classifications, and the legal protection available for producers based in distinctive wine regions. In this article we’ll be looking at how certain regulatory bodies and wine associations can, and in some cases already do, help producers to protect the reputation of their brands. Finally we’ll look at how the wine industry can come together to tackle the counterfeiting industry which continues to damage the sales and reputation of this much loved beverage.
Some weeks ago, we contacted INAO, Institut National de l'Origine et de la Qualité, or The National Institute Of Origin And Quality, France’s public administrative authority which is responsible for the implementation of French policy on official signs of identification of the origin and quality of agricultural and food products, including wine.
Over the last decade, INAO has worked hard to protect French PDOs and PGIs in China, and has seen its actions in China increase considerably between 2008 and 2015. Indeed INAO has seen bad faith trade mark registrations of French GIs quadruple during the recent years with just 12 predatory French GI registrations in 2009 rising to 60 in 2014 with no sign of reduction in numbers. In their experience these have been a mix of true ‘trade mark squatters’, simply out to make a profit, as well as shady importers of genuine GIs registering trade marks in an attempt to gain exclusivity over the market, thereby ignoring the collective nature of GIs.
INAO, like other national bodies, has not sat idly by however, and has filed numerous opposition or annulment actions before the Chinese Trade Mark Office (CTMO) against marks which infringe French GIs. The average cost of these actions comes to around €2,000 and as the number of infringing applications is on the rise they are beginning to feel the strain on their budget.
As such, INAO has been less able to involve itself in ‘boots on the ground’ investigations and actions against individual counterfeiters. Representatives have expressed their dissatisfaction at their inability to tackle these counterfeiters, who are damaging the industry as a whole. However the prohibitive costs in tackling the numerous infringers is too high for their already overstretched budget and they need more support if they are to tackle the roots of the problem.
Regional organisations have also made attempts at reducing the problems of counterfeiting in China. The Bordeaux Wine Council; Conseil Interprofessionel du Vin de Bordeaux (CIVB) has been working for years to combat wine fraud, and with the help of the French Finance Ministry runs a specialist laboratory to test suspected fakes, as well as commissioning an app - Smart Bordeaux - which allows buyers to check the details of vintages by taking a photo of a wine label or scanning a bar code.
In January 2011, the CIVB engaged Nick Bartman, a specialist counterfeit investigator, to put together a team and investigate wine counterfeiting in China . However due to budget constraints, the scope of investigation was limited, as was the legal action which followed. The team’s actions on behalf of the CIVB resulted in an estimated €30 million worth of damage to counterfeiting operations. Bartman believes however that without limits on investigative scope and freedom to litigate, this figure could have been vastly improved. With more time, and a fully-fledged cross-border investigation, enough damage could be done to infringement operations to significantly deter future wine counterfeiting in the region.
In addition to Mr Bartman’s activities, the CIVB has also engaged another old China hand, namely Thomas Jullien. Based out of Hong Kong, Mr Jullien and his team work to promote Bordeaux wines in China, as well as to chase down counterfeits and tackle infringers. In their anti-counterfeiting efforts Thomas’s team work to register GIs for all of Bordeaux’s 50 appellations, as well as track down and take action against infringers. This project has now been active for over 5 years and has removed a great number of counterfeits from the market. However, enforcement remains a key issue and even though Thomas’s team focus their efforts on large scale infringers, with more obvious counterfeits, lack of education within enforcement authorities regarding wine counterfeiting means that officials in less experienced bureaus remain reluctant to take risks to shut down infringers. Without the resources to help educate numerous local authorities around China, this barrier to enforcement will remain and successful actions will be limited primarily to first tier cities, thereby limiting the effective impact that these experienced anti-counterfeiting teams can have on national production.
It’s not just the investigators feeling this frustration; Dr. Paolo Beconcini, managing partner at Carroll, Burdick & McDonough LLP , has spent more than 15 years taking down counterfeiters in China for some of the biggest brands in business and has studied and written on wine counterfeiting in the past . Paolo’s philosophy, when it comes to counterfeiters, is akin to a well-aimed sledgehammer; once found you have to hit them fast, and you have to hit them hard. This ‘shock and awe’ tactic is incredibly effective, and works not only to close down the immediate counterfeiting operations, but also to deter other counterfeiters of those products.
Each year, Paolo attends working groups for the Quality Brands Protection Committee of China (QBPC) , as well as Interpol’s China and South-East Asia Trafficking in Illicit Goods and Counterfeiting Sub-Directorate which provides training for customs officials and police on recognition of products, thereby assisting them in carrying out the investigations and raids which have marked Paolo’s successful career.
These working groups, and the lobbying clout they represent could catapult the wine industry into the crosshairs of Chinese police officials, and yet representatives are conspicuously absent from their memberships. Without the education and support of these Chinese officials, and relying on the comparatively shallow pockets of individual producers and organisations like the CIVB, the wine industry is unable to bring to bear the strength necessary to tackle the now established counterfeiting operations which continue to damage profits and reputation of wine producers around the world.
For lasting success in the war against counterfeiters, a much larger coalition is required; a global wine protection initiative with the support of national and regional wine associations, importers, retailers, and individual producers. With this kind of backing, individual costs would be slight, but the political weight and financial power behind the investigators and legal teams would be the greatest threat yet seen by counterfeiters in any industry.
