| There are different climatic conditions in different region because of the evolution of natural environment. Plants and animals growing in these different geographical environment and even human customs differ from each other. Most of the places have the advantage suitable for the growing of a certain product and, as a result, there are some unique products with special quality. Even the same product growing in one place will have different quality from that in other places. For example, Cognac area of France abounds with grapes. The wine produced in this area has a kind of unique taste better than that of any other places in world. Another example is the porcelain made in Jing Dezhen of China. The unique method of making porcelain descends for generations makes Jing Dezhen's porcelain have a perfect quality than all others. Therefore, the unique geographical environment can bring up the unique product and the reputation of the same product produced in different areas is different from each other. With the development of market economy, people become in favor those products with unique quality more than ever and such products often have enormous market potentials and can bring great profits to the manufacturers. Because this kind of products have close connection to the places where they are produced, people like using geographical name as the indication to distinguish the same kind of products produced in different places. Representing the unique quality of this region's product with the geographical name is the origin of geographical indication. This thesis just focuses on the geographical indication and the author hope to contribute to the protection of geographical indication by this thesis. This thesis consists of four chapters. In the first chapter, the concept of geographical indication is defined mainly. The characteristic of geographical indication and the great meaning of protecting geographic indication are argued at the same time. The author argues that in our country's Trademark Law, the geographic indication is scientifically and reasonably defined, i.e. "the geographical indication is an indication showing that some products come from certain area and its specific quality, reputation or other characteristics are mainly determined by the natural factors of such area or humane factors." This concept, in some sense, expresses the complication of geographic indication. Meanwhile that concept also accords with the definition of that of TRIPs. Besides the definition of the concept, geographic indication shall be distinguished from appellations of origin and indications of source. World Intellectual Property Organization argues that using the appellations of origin requires that the products shall have some connections, in quality, with the places where they are produced. And such connections include the special climate, soil or the traditional production matters in that area. However, the requirement of using the indications of source is only that this product is produced in the area it identified. But geographic indication has been extended to "reputation" that is not applicable for appellations of origin. That means geographical indication refers to the geographical name of a country, area or place as well, which indicates that product come from such place and its reputation mainly attribute to the origin. Geographic indication being a kind of intellectual property right has the characteristics including special identification, connection, common possession on ownership, unassignability and that the using and registrationare separated. It has irreplaceable meanings in accelerating the industrialization and the process of quality standardization, the promotion of brand strategy of the unique and famous products, propelling the agricultural development of our country, preventing unfair competition, regulating market order and accelerating the adaptation to international society. In the second chapter, the author mainly discusses several international treaties on geographic indication and introduces the domestic legal protection patterns of other countries and makes a comparative study in detail. The indications of source or appellations of origin were protected by Paris Convention (1883) first. and Madrid Agreement (1891) specially protects indications of source and does not involve the protection of appellations of origin. As a result, Lisbon Agreement appeared for the effort of Lisbon Foreign Affairs Convention (1958) trying to improve the international protection of geographic indication within the system of Paris Convention and Madrid Agreement. It defined the appellations of origin, combined product quality and characteristics with original place to make up the defects of indications of source. The international protection of geographic indication is less than of satisfactory because the limitation on protection scope of Paris Convention and applicability of Madrid Agreement and Lisbon Agreement. The WIPO has been preparing to establish a multilateral agreement to protect appellations of origin and indications of source since1974. In 1990 the "Expert committee on Geographical Indication Protection"considered establishing a new treaty to settle the issues on international protection of geographic indication. The connotation of geographic indication was not formally clarified and the international unified protection mechanism came into being till the appearanceof TRIPs in 1994. There are three protection patterns of geographic indication. One of them is the Trademark Law protection pattern, i.e. to register geographic indication as certification mark or collective marks. The U.S is the typical one that makes use of such method. This kind of mode has the advantage that it takes geographic indication into the scope of the Trademark Law so that the existing Trademark Law system can function fully, such as application, examination, announcement and objection, registration and cancellation. It does not need more resources. To do this is much easier than to establish a new system and may save the legislative and executive costs. And better, it can also deal with the relation between geographic indication protection and pre-existing trademark right. Another pattern is to make independent legislation to protect geographic indication. France adopted such pattern. This pattern is the best one, by which special operators in original place are empowered exclusive right of using and prohibition of geographic indication. It can prevent right of the owner from infringement to the largest extension. Its defects lie in high costs from legislation and management. The third one is the anti-unfair competition protection pattern. Since this pattern focuses on maintaining the market order and protecting consumers'rights and interests without regarding geographic indication as an intact intellectual property right, the owner and user have not got a clarified exclusive right. Therefore, anti-unfair competition law is used as an implement of geographic indication protection by some countries. In the third chapter, the author expounds on the current situation of the protection of geographical indication in our country and put forward someproblems. At present, our country adapts a plural pattern in the protection of geographical indication, which mainly depends on Trademark Law and the Protection Description in Original Places, meanwhile, functions with Anti-unfair Competition Law and the Law of Products Quality as the complementarity. The advantage of such pattern is, on one hand, that the Trademark Law warrants the subject of right with full trademark right, thus the right owner has not only the right of control on geographical indication but the prohibition right against other persons'illegal using so as to make geographical indication be a real civil right and, on the other hand, Anti-unfair Competition Law and the Law of Products Quality regulate the competition between the operators and require them provide product information in truth, emphasizes the obligations and liabilities and protect consumers'legal rights and interests. However, since Trademark Law and the Protection Description in Original Places are issued by different sectors, their protection measures are different but the object of protection is the same. Then the conflicts of the right of geographical indication owner and the administrative power may not be avoided. The first problem is about the tangle of our country's legislation. Both Trademark Law and the Protection Description in Original Places prescribe the registration of geographical indication. Those conflicts of law make much difficulty in the enforcement of law and judicial activities. And the problem followed is that both the National Commercial and Industrial Bureau and the National Bureau of Quality Inspection established a system, respectively, for the protection of Geographical Indication, which, objectively, generates a tangle of geographical indication protection system. All those are manifestedby the conflicts of administrative authority, right of owners and the using of geographical indication in market. The third problem is the conflicts of geographical indication and place name trademark. How to solve the conflict, harmonize the relationship between the prior right of geographical indication and place name trademark and to reasonably configure these two rights becomes what shall be solved first in the perfection of geographical indication in our country. The author provides her own suggestion in the fourth chapter. She argues that geographical indication protection should rely mainly on Trademark Law with the complementarity of Anti-unfair Competition Law and Law of Products Quality and the State Council shall cancel or amend the Protection Description in Original Places and other related regulations. Those administrative regulations shall function as the detailed measures of Trademark Law in the performance and execution in the protection of geographical indication in order to establish a harmonious and systematic legal protection system. In addition, in the future management work, we should distinguish geographic indication and place name trademark and protect them respectively. With respect to those geographic indication registered as place name trademark, we should draw certain experiences from the related international treaties to establish an interim and distribute the right to geographic indication owner without damaging trademark owner's right to realize effective harmony between geographic indication and place name trademark. Meanwhile, we should regard industrial and commercial bureau as the superintending authority and establish corresponding geographic indication registration system and the ad hoc geographic indication association so as to... |
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