Research On The Identification Of Generic Geographical Indications

The identification of generic geographical indications(hereinafter referred to briefly as GIs)is one of the basic problems in the protection of GIs,The US–China Economic and Trade Agreement on January 15,2020 drew the issue of the generalization and identification of GIs into the public’s vision.On the basis of the two existing protection modes of GIs,this paper takes the subjective and objective relevance of GIs as the standard and applies the method of classified identification of generic GIs.Chapter one,this paper analyzes the domestic legislation and cases related to identification of generic GIs,and found the irrationality in it.The first section points out that in the legislation of the protection system of trademark law,there are the problems of "strict entry and wide exit" of GIs and it is easier to be recognized as the generic name.The provisions of the special law of GIs on the identification of the generic GIs are vague.In addition,there is no cohesion between the identification of generic GIs in these two systems.Section two,there are cases of unreasonable identification of generic GIs in judicial practice.First of all,the criterion for the generic GIs is not reasonable,and second,there is confusion of GIs,common names and special names.Section three,this paper interprets the provisions related to generic GIs in the US-China Economic and Trade Agreement,and points out that the provisions related to the generalization of GIs have not been implemented.The second chapter is the theoretical analysis of the identification of generic GIs.Section one,this paper traces back to the source,and distinguishes generic GIs and its adjacent concepts,such as generic name and special name,are distinguished and analyzed.The second section is the typification analysis of the origin of the identification of generic GIs.It is concluded that the reasons of generic GIs can be divided into legislative and historical reasons,the lack of subjective or objective relevance.The third section analyzes the differences between the generalization of GIs and trademarks.GIs are different from trademarks in nature,characteristics and policies.The identification of generic GIs has its special features: relevance should be the core of the identification of generic GIs,and caution should be taken in the identification of generic GIs.Chapter three,this paper studies the provisions and cases related to the generic GIs outside the territory.The first section studies the generic GIs in international treaties,and draws two conclusions: the generic GIs is the core issue that must be discussed in international treaties concerning GIs;The essence of the generic GIs is interests of each country.The second section studies the identification of generic GIs in the United States.The GIs based on subjective relevance are essentially the same as trademarks,so it is reasonable to apply the standard of the generic names.The third section studies the identification of European Union generic GIs.China should learn from the European Union and be more cautious when identifying generic GIs.Chapter four,this paper puts forward suggestions for the improvement of identification of generic GIs in China,from the system,legislation and judicial levels.Section one,the classified identification methods of generic GIs are proposed,that is,different identification standards and factors should be applied to different types of GIs.For GIs composed of subjective relevance,the identification standards of generic name of trademarks should be applied.This method can not only produce practical effect,but also economic efficiency.Section two,under the protection system of trademark law,the definition of GIs should be amended,and the provisions in the Provisions on Authorization Confirm Rights should be clarified.Under the system of special law,the definition of "generic name of geographical indication" should be determined,and the identification factors of generic name of products of geographical indication should be clarified.In addition,this two protection system of the GIs should be well connected,and the conflict resolution provisions for the identification of generic GIs should be added.In the third section,in the judicial practice level,first of all,the standard of specific geographical scope should be reasonably applied to avoid the confusion between the generic name and the special name;secondly,consumer survey and other systems should be introduced in the identification of GIs.Finally,for the generalized identification of GI product names,the expert technical review system should be timely introduced in the identification of GIs.The conclusion summarizes the full text.