Legal Research On The Protection For Geographical Indications Under The TRIPS Agreement

Although regulated as one of seven kinds of intellectual property rights under the TRIPS Agreement, the right to geographical indications has never been recognized as well as other intellectual property rights, and the disputes have accompanied it all the way since it was introduced. The WTO Members have been debating on issues related to geographical indications, such as the standard of recognition, the scope of protection, its conflicts and coordination with generic names and common trademarks, the legal protection mode, the standard of protection, and the registration system, etc. And therefore, two interest groups, the so-called "Old World" and the "New World", appeared subsequently. China is a member of the WTO, having the obligation to implement the TRIPS agreement effectively. In the context of globalization, China's legislation fluctuates more or less with the international legislation movement. The current international legislations and controversies over geographical indications have also been reflected in the construction of China's legal system of geographical indications, and the most prominent result thereof is that a variety of legal protection modes for the geographical indications coexist and conflict with each other. China is very rich in geographical indications resources, and about 95% of the geographical indication products are agricultural products, therefore, exploring our geographical indications resources and strengthening as well as improving our legal protection for geographical indications, can not only improve greatly our independent intellectual property rights standard, break the monopoly owned by developed countries in the field of intellectual property rights, and enhance our competitive advantage in this field, but also use geographical indications as the boosters to promote the development of our agricultural industry and rural area, and to increase farmers' income. Therefore, to study the legal issues related to the protection for geographical indications under the TRIPS Agreement is not only necessary to fulfill our international treaty obligations, but also is necessary to solve our "three rural" issues, and thus is of strategic and practical significance.The whole thesis is divided into seven chapters, and the main contents are as follows:The first chapter is the overview of the geographical indications protection system. This chapter first goes over the evolution of the concept of geographical indications and its characteristics in order to make a clear object to study, then retraces the development of legal protection system of geographical indications from both domestic and international perspectives, and then explains the causes of the current international legislations on geographical indications from a historical perspective, and finally analyzes the legal value of the protection system of geographical indications in order to provide guidance for the whole thesis to analyze the legal system of geographical indications.The second chapter is about the study on the legal protection modes of geographical indications. This chapter first clears the requirements on the protection for geographical indications under the TRIPS Agreement, then analyzes and compares three protection modes for geographical indications, i.e. trademark law, special legislations and business practices law, and finally studies the development trends of the legal protection modes of geographical indications. The author believes that the TRIPS Agreement only regulates the protection of geographical indications in general, and there are no mandatory requirements for every single country or region to adopt any specific protection mode for geographical indications. In practice, the WTO Members will employ a variety of protection modes for the purpose of the geographical indications protection. Therefore, the debates on the protection of geographical indications should not be limited within the choice of the modes, and the crucial point is that whether these protection modes can provide adequate legal protection with geographical indications in this specific country.The third chapter is about the study on the legal subject of the protection for geographical indications. This chapter studies on the unique nature of the subject of rights of geographical indications and its identification from the point of view that a geographical indication is one kind of the intellectual property rights. The author believes that although different countries or regions have different regulations regarding the subject of rights of geographical indications, in practice, the rights to geographical indications in general are granted to certain industry associations or groups composed of the production operators within the region of origin, based on the collective nature of the rights to geographical indications. But the ownership of a geographical indication owned by industry associations or groups is restricted, and generally cannot be used for their own benefit. The right to use is generally exercised by the production operators within the region of origin.The fourth chapter is about the study on the discriminatory treatment between geographical indications for wines or spirits and those for other products. This chapter first analyzes reasons and related regulations of the discriminatory treatment, and then explores problems appeared in practice and future trends thereof. The author believes that this discriminatory treatment mainly reflects the industrial interests of some big wine-producing or spirits-producing countries, and such distinction is lack of the basis of legality and rationality. The discriminatory treatment has caused the protection level of geographical indications unbalanced under the TRIPS Agreement, and such extra protection of geographical indications for wines or spirits shall be extended to other products, in order to balance the interests of different parties. The fact that EU has signed the bilateral agreement with the United States, Australia and other countries regarding the protection of geographical indications only for wine or spirits has set an obstacle, to a certain extent, to unifying different standards of protection for geographical indications under the TRIPS Agreement.The fifth chapter is about the study on the quality control over the geographical indications products. This chapter first elaborates the necessity of the quality control over the geographical indications products, from the perspective of the particularity of the rights to geographical indications and of the object protected, and then analyzes the practical issues and standardization of the quality control over the geographical indications products. The author believes that the product quality is the basis for the development of geographical indications, and criterion is the basis for the product quality. Although the methods of the product quality control are different because of different legal protection for geographical indications, but in the long run, the fully display of the quality control over the geographical indications products by industry associations or groups is a useful way for the sustainable development of geographical indications. The sixth chaper is about the study on the development trends of the international protection for geographical indications. This chapter explores the development trends of the international protection for geographical indications from the perspectives of regional international treaties and multilateral international treaties. The author believes that it would be easier for the members of regional international organizations to reach the consensus on the international protection for geographical indications, based on the fact that these member countries have similar cultural background or have political, economic, or diplomatic position in common; while during the multilateral negotiations of the international protection for geographical indications under the TRIPS Agreement, because the geographical indications resources are different from one party to another, the progress of negotiations is very slow due to different country's desire to protect their own interests. The tug-of-war among different parties would be inevitable and keep on going before their bottom lines are fully presented.The seventh chapter is about the study on China's protection system of geographical indications. This chapter first reviews the history and current status of the legal protection for geographical indications in China, analyzes the problems of our legal protection for geographical indications, and put forward suggestions to perfect the relevant legislations. The author believes that as for the scope of protection for the geographical indications products, such protection shall be extended to the service thereof; as for modes of the protection for geographical indications, there are no necessary coordination and harmonization among our three current systems of legal protection for geographical indications due to a common fact that one issue is being dealt with many different authorities, thus, there are multiple rights confirmation systems for geographical indications in our country, triggering conflicts over rights, wasting the limited administrative resources, increasing burdens over production operators and transaction costs of consumers, therefore, a unified special symbol of geographical indications shall be employed, and the results of the rights confirmation from different authorities shall be recognized mutually, so that the burdens over the applicants for geographical indications can be reduced, and the rights confirmation systems shall be unified when the right timing arrives; as for the subject of rights of geographical indications, it should be made clear that geographical indications belong to all the production operators within the region of origin collectively, and the individual therein can excise the rights to use of geographical indications; as for the issue of the registered person of geographical indications, although trade associations and other intermediary organizations shall improve greatly their representation and professional capacity, in the long run, granting these trade associations the rights to self-management of geographical indications is more conducive to the sustainable development of geographical indications; as for the discriminatory treatment between geographical indications for wines or spirits and those for other products, there is no extra protection for geographical indications for wines or spirits in China's current legislations, which does not conform with the relevant provisions of the TRIPS Agreement, moreover, China is rich in the resources of geographical indications of non-wine and non-spirits, it is therefore suggested that high standards of protection for geographical indications shall be applied to all products of geographical indications in legislations; as for the issues of the quality control over the geographical indications products, the standardization is the way to guarantee the sustainable development of China's geographical indications, therefore it is recommended that the quality inspection authorities shall review and perfect the standards of the geographical indications products, but industry associations shall play a major role in regular supervision, and there should not be excessive administrative interference; as for the issues of promoting international negotiations and cooperation over geographical indications, in view of our vital interests in the geographical indications products of non-wine and non-spirits, it is recommended to support explicitly the extension of the extra protection for these products for our national interests, and to participate in international negotiations or cooperation with a supportive but cautious attitude for the issues of notification and registration of the multilateral system. Finally, the author put forwards some suggestions regarding the future specific legislations on geographical indications.