As the world’s second largest economy, China is an attractive market to foreign wine producers. While China does produce some of its own wine, a large portion of the wines available for sale in China are imported.

In 2019 China imported 615,500 kilolitres of wine valued at USD2,442 million. Although the pandemic lockdown was not lifted in China until the end of 2022, in 2022 China imported 335,318 kilolitres of wine valued at USD1,435 million (see https://www.chyxx.com/).

As the market for imported wine in China continues to grow, it is important for wine producers to ensure that their trade mark is suitably protected in China. Simonne Moodie, Zhigang Zhu and Tingxi Huo Of the MARQUES China Team provide some insight and a useful checklist for foreign wine producers wanting to export their wines to China.

Trade mark protection in China

1. Search and registration

China is a first-to-file country, but it is preferable to only start using the mark once registration is secured, which could take as little as nine months. Prior to registration there is some protection under the Anti-Unfair Competition Law and the protection of well-known trade marks under the Trademarks Law, but the threshold for protection under these provisions is very high and protection is difficult to obtain.

Conducting a registrability search prior to filing is preferable, particularly if the intention is to use the trade mark in China before registration. This will avoid any potential infringement action and will also disclose any prior bad faith filing of the mark by an unrelated third party, which is common in China. If there is a prior registration or application in China agents or distributors may not be willing to import the wine and Chinese customs may request proof of ownership.

2. What to file

It is advisable to file the trade mark application in the form that the trade mark is used on the wine label in China. In most cases for a foreign wine brand this will be the Latin name, and it should be filed in plain block letters to cover use in different fonts and letter cases. It is also recommended to use and register the Chinese equivalent trade mark in the form of its translation or transliteration so that local consumers can recall the brand name.

According to the China National IP Administration (CNIPA) practice, wine labels are often considered overly complex or indistinctive for registration. However if the label is simple it is worth filing a trade mark application for the label in addition to the Latin name and transliteration or translation. An alternative option would be the registration of copyright in the label design under the Copyright Law, which can be granted and enforced sooner and will enjoy protection for at least 50 years.

The CNIPA follows the standard specifications outlined in the Nice Classification and is very liberal with the scope of the specification. Since there are no use requirements (except in non-use cancellation cases) it is advisable to apply for a trade mark with a wide specification covering “alcoholic beverages, except beers; wine” in class 33. This covers most of the class heading, bearing in mind that “alcoholic preparations for making beverages” is not accepted in China.

Importing your wine into China

1. Licensing and distribution

It is advisable for foreign wine producers to have a designated, trusted distributor or agent in China to import the wine, assist them with the process and on-sell to the various channels such as online shops and supermarkets.

A written licence agreement with the distributor is not compulsory for the use of a trade mark by the distributor to qualify as permitted trade mark use, but it is highly recommended. A written agreement will clarify the rights and obligations of both parties, protect the proprietor’s rights in its wine brand, control the use of the trade mark and provide for proof of the licence and distribution relationship.

In the absence of a written agreement, in the case of a registered trade mark, the Chinese authorities may order the agent or distributor to prove the licensing relationship or take punitive actions against what they see as “infringing use”.  

According to Article 43.3 of the Trademark Law, a trade mark owner must record a licensing relationship with CNIPA. To record the licence you simply need to provide details of the licence arrangement and not the licence agreement itself. While there is no penalty for a delayed recordal, recording the licensees in respect of any registered trade mark with the General of Administion of Customs of China (GACC) (on the ‘whitelist’) and recording any suspected infringers (on the ‘blacklist’) should enable the legitimate products to enter or exit China smoothly, and should assist in preventing potential infringing products from entering or exiting China. 

2. Import process and regulations

Foreign wine producers wanting to export their wines to China will need to register their company, register the wine label and send various documents to customs, namely the General of Administion of Customs of China (GACC).

To import wine into China, wine producers need to comply with these national regulations and must also follow the GuoBiao Standards (GB Standards). GB Standards are the China national standards, classified into Mandatory or Recommended, to ensure products are safe for use and consumption in China.

The Mandatory standards have the force of law in China. The most common GB Standards that apply to wine imported into China include the general standard for the labelling of pre-packaged alcoholic beverages, wines, fermented alcoholic beverages and their integrated alcoholic beverages, hygienic specifications of factories for wine, analytical methods of wine and fruit wine, and good manufacturing practice for wine enterprises.

In addition to these national regulations and standards there are other general laws such as Advertising Laws that regulate wine advertising and sales and Trademark Laws that control the use and registration of the trademark.

Given the number of rules and regulations that are continually updated, it is recommended that foreign wine producers work with a professional distributor and attorney in China to provide guidance through the complete wine exporting process.

By Simonne Moodie of Von Seidels Attorneys, South Africa); Zhigang Zhu of Wanhuida Intellectual Property, China; and Tingxi Huo of Chofn Intellectual Property, China. All are members of the MARQUES China Team. Photo by Alex Brown on Flickr