On The Legal Protective Pattern Of Geographical Indications In China

Today, geographical indications are more and more important to thedevelopment of the economy. So the law in every country prescribes how toprotect geographical indications. And every country established their ownlegal protective pattern of geographical indications, in order to protectgeographical indications to develop the economy, including China. In China,a lot of laws prescribe how to protect geographical indications. And Chinaestablished its own legal protective pattern of geographical indications.However, Chinese legal protective pattern of geographical indications is inconfusion. This confusion is unfavorable to the protection of geographicalindications. The aim of this text is try to resolve the problems about Chineselegal protective pattern of geographical indications through the introductionto the basic knowledge about geographical indications and the evaluation andanalysis on the legal protective pattern of geographical indications. Throughthe settlement we can perfect Chinese legal protective pattern of geographicalindications as also to contribute to the development of Chinese economy.This text consists of three chapters.The first chapter introduces the basic knowledge about geographicalindications. To research on the legal protective pattern, grasping the basicknowledge is a premise and the foundation. Firstly, the author evaluates andanalyses the concept of geographical indications. Geographical indicationsare, indications which identify a product as originating from a country, or aregion or locality in this country, where a given quality, reputation or othercharacteristic of the product is essentially attributable to the natural factor orthe unnatural factor of its geographic origin. Then the author comparesgeographical indications with other relevant indications, including thedifferences and relations. Through the compare the author concludes thefeatures of geographical indications. 1. The unique indication. Geographicalindications have indicated not only the geographic origin but also the givenquality, reputation or other characteristics of the products. And the uniqueindication only indicates the geographic origin, but not indicate the producer.2. The special community. On the one hand, the users of geographicalindications must maintain the reputation together. On the other hand, theycompete each other with their own trademarks. The superior wins and theinferior washes out. 3. The particularity of the right. The ownership and theusufruct of geographical indications separate. And the users are limitedstrictly. 4. The relative permanency. Most countries do not prescript the termof geographical indications.The second chapter evaluates and analyses two kinds of legal protectivepatterns of geographical indications. There are two kinds of legal protectivepatterns of geographical indications in the world. One is the protectivepattern of trademark law. The other is the protective pattern of Ad Hoclegislation. They both have the advantages and the disadvantages. Thescholars have different opinions about them. The complete trademark law isnecessary to a country which protects geographical indications throughTrademark Law. The complete specific law and the specific organization areessential to a country which protects geographical indications through AdHoc legislation. In fact, every legal protective pattern of geographicalindications is the result of the especial historical conditions, the especialsocial conditions and the especial legal tradition. Different countries havedifferent situations. So we can not say that which is the best legal protectivepattern simply. The legal protective pattern of geographical indicationswhich is suitable to one country is the best in this country. So theinternational treaties do not prescript the legal protective pattern ofgeographical indications. And TRIPs do not prescript the legal protectivepattern of geographical indications either. The members may choose the legalprotective pattern of geographical indications according to their own socialconditions, the conditions of economic development, the legislativerequirement and the legal traditions. So one country should take into accountthe situation of the country and the legal system when the legal protectivepattern of geographical indications is determined.In the third chapter the author introduces the legal protective pattern ofgeographical indications in China. At present, there are two patterns coexistin our country, i.e. the protective pattern of trademark law and the protectivepattern of Ad Hoc legislation which blocks the work of protectinggeographical indications to some extent, and the disadvantage is significant,and wastes the legislative sources, manpower and resources and leads to newconflicts of rights, dilutes the distinctiveness. The author suggests adoptingthe protective pattern of trademark law to protect geographical indications inChina, Because geographical indications are similar to the trademark onfunction and rights, and adopting the protective pattern of trademark law cansave the legal sources, conforms to the trend of international development,especially conforms to the situations of our country which is in favor of thelegal protective of geographical indications. As no reforms can be carried outsmoothly, and the protective pattern of geographical indications in China isfar away from perfection, the reform on the legal protective pattern ofgeographical indications in China will face many difficulties. Therefore,more efforts need to be advocated to the perfection of the protective patternof geographical indications in our country. First of all, We should settle theproblems in the reform. 1. State Administration For Industry and Commercecan censor the appellation of origin which get the protection of Ad Hoclegislation without applying the protection of Trademark Law. Whether theycan apply the registration of collective marks or marks of certification,according to the relevant provisions of statutes will be checked out too. Ifconforming with the provisions, it can be registered as collective marks ormarks of certification. Otherwise, it has to be given up. 2. The geographicalindications that registered as collective marks or marks of certification havethe possibility of conflicting with the priority of trademark right, we must...