Geographical Indication Protection Under Trademark Law

Geographical indication(GI in short), as an independent intellectual property right type, is more and more valued as property and playing a role of increasing importance in international trade and domestic legislation. China has many GI resources of high quality and strengthening the GI protection to improve our status and influence in international trade is a historical opportunity we must seize. As one must first sharpen his device before doing a good job, completing the system of GI protection is the first step to take. Besides anti-unfair competition law, the protecting systems include trademark law model and specialized law model, and the trademark law model is quite popular in the world and valued in China, which has made great contribution in our country. So the theme of the article is GI protection under trademark law. Why GI can be protected under trademark law, trademark law protection in text and in judicial practice, the conflicts, problems and solution suggestions are the main issues to discuss. The research method is empirical study, including that with laws and regulations, that with practice and comparative study, focusing on not only China’s legal conditions but laws and experiences from abroad and international agreements and conventions. This article holds the following points : GI, different from other indications of geographical source, is a property in nature based on its function of showing quality and credit, so it is equal to a trademark and can be protected in the form of a collective mark or a certification mark. Compared with the specialized law model, the trademark law model doesn’t put much energy on monitoring quality of products and it provides just average protection and is strict in infringement identifying. In China’s latest judical practice, even there is use of the same or similar sign, as long as people won’t confuse and mistake the geographical source, there is no GI infringement. So the common confusion standard from trademark law is not applied. This average level of protection lives up to China’s practice. But this “geographical source mistaking ”standard leads to a problem that it fails to forbid people in the certain areas from registering and using the geographical indications as ordinary marks or signs on their products. Besides the average protection level under trademark law model, for those more famous GIs who want to seek high-level protection, GAQSIQ’s GI protecting system is the choice, and in this way the two protecting systems divide the work on different value orientations. The conflict between GI and trademark, which is an inevitable problem, is a necessary issue in trademark law. To respond to this problem, the trademark law on on side forbids the applying and registering of ordinary trademarks with geographical names, and on the other side definites the conditions and ways in which they coexist where GI and ordinary trademark have been both registered. Solution to the conflict is a practical issue rather than a theorical one, which depends on each country’s protecting levels and their interests, that is why the main few countries differ so much on this issue. This article argues that based on the fact that GI resources are limited and owned by all in a particular area and its protection model can not be seperated from China’s reality, “the relative priority”of GI is the right choice for China. At last, China’s GI protection system under trademark law is not perfect. The absence of quality monitoring, the risk that GI may be monopolized by a certain producer of the area and no interference of what is fair use are the main problems. The keys to solving these problems are that we should furfill and complete laws and regulations, and coordinate powers and duties between different departments on the principle of numerus clausus to intellectual property. In this way, we can solve the problem of repeated protection and conflicts between rights, saving the cost, easing the burden of the right holders and improving the efficiency of right protecting; we can make the system ordered and clear enough for producers to use to gather economic powers, develop local economy and increase the income of farmers; we can establish a lot of GI brands, to improve added value to the products, provide products of high quality to the cusumers and earn more benefits in international trade.