86. The representative of Hong Kong, China said she believed that the second sub-question was addressed to Members that operated a GI register. Hong Kong, China like other common law systems protected geographical indications as certification and collective marks and therefore the question of whether a mark was distinctive or generic was settled as a matter of general trademark law. During the application process the level of substantiation required to prove the genericness or non-genericness of a geographical indication was that the geographical indication was capable of distinguishing goods of members of the association which was the owner of the collective mark from those of other undertakings, or in the case of a certification mark, capable of distinguishing certified goods from uncertified goods.
87. As for the burden of proof during the application process, the general principle was that he who asserts must prove, that is to say the applicant for the registration of the geographical indication bore the burden of proving non-genericness. In relation to part b of the second sub-question, if a geographical indication protected as a collective mark or a certification mark was challenged in an invalidation proceedings, the level of substantiation required to prove the genericness of a geographical indication was that it was not capable of distinguishing goods of members of the association owning the collective mark from those of other undertakings or, in the case of a certification mark, certified goods from uncertified goods. As to the burden of proof in invalidation proceedings, the general principle was again that he who asserts must prove, that is to say the applicant for the declaration of invalidity of the registration of a geographical indication as a collective mark or certification mark would bear the burden of proof of non-genericness.
