Dilemma And Improvement Suggestions For Geographical Indication Protection Under The Trademark Law Syste

Geographical indications in China are mainly protected under the trademark law system.When the marks containing geographical indications are registered or used as trademarks,the right to use geographical indications and the exclusive right to use trademarks are prone to conflict.It is mainly manifested as the conflict between the trademark and geographical indications in the process of authorization and confirmation,and the conflict between the trademark and geographical indications in the process of use.The controversy focuses on two aspects: firstly,whether geographical indications can be applied to the criteria for judging the similarity of trademarks and the possibility of confusion of geographical indications;secondly,whether the use of geographical names is descriptive use,and whether the behavior of geographical indication products is proper use if they meet the conditions of origin and quality but are not authorized.The reason for the conflict between the right to use geographical indications and the exclusive right to use trademarks is that,from an international perspective,the concept of geographical indications has undergone a complex process of evolution,from "Indications of Source" to "Appellations of Origin" and then to "Geographical Indication";while the New world countries represented by the United States and the Old world countries represented by the European Union have different values in the concept of geographical indications,the level of protection,and the relationship between geographical indications and trademarks,which has intensified the division in the scope of geographical indication protection.From the perspective of China’s system,the protection of geographical indications adopts a monolithic system subordinate to trademark law,and trademark law does not match the characteristics of geographical indications with a unique system,which leads to a series of problems such as irregularities in the registration and use of trademarks and geographical indications containing geographical names,incomplete application of trademark infringement standards to geographical indications,and inadequate management of trademark registrants and users.The theoretical basis of geographical indications protection under China’s trademark law system is the symbolic theory,which believes that the legitimacy of geographical indications protection in the trademark law system is to ensure the authenticity of the market.However,the symbolic theory only explains the indicative role of geographical indications and cannot clarify the special characteristics of geographical indications,which leads to the trademark law’s inability to achieve adequate protection for geographical indications.The analysis of the specificity of geographical indications should start from the perspective of the correlative element theory,and the analysis of the constituent elements of geographical indications such as origin,reputation and quality can be concluded that geographical indications focus on identifying the geographical origin of products;the reputation of geographical indications is created collectively and inherited through a long period of time;geographical indication products possess unique quality indicators different from the same products due to their geographical factors.To improve the issue of geographical indications arising under China’s trademark law system,we should first clarify the examination ideas of geographical indications for trademark registration.Clarify that geographical indications are not generated after the registration of collective trademarks or certification trademarks;correctly understand the registrability of geographical names;strengthen the examination of the second meaning of geographical names;and take the relevance of geographical environmental factors of geographical indication products as the main consideration factor as the substantive condition for identifying geographical indications.Secondly,to add a specific protection system for geographical indication products.Clarify that the review elements of geographical indication products include quality,characteristics and reputation,and the product elements include raw materials,special processes and product forms.Again,improve the basic idea of geographical indication infringement determination.Determine the specificity of legal interests of geographical indications,refine the similarity comparison of geographical indications,clarify the criteria for judging the possibility of confusion,and improve the provisions of proper use of geographical indications,i.e.the subjective conditions meet the requirements of bona fide and necessary,and the objective conditions meet the provisions of descriptive use.Finally,strengthen the service consciousness of trademark registrants,pay attention to the supervision of geographical indications application subjects,and establish the incentive mechanism for geographical indications special marks.