The Standard Of International Protection For Geographical Indications And The Analysis Of China's Countermeasures

Since TRIPS included geographical indications in the protection of intellectual property rights. The protection of the geographical indications became a hot topic, be attached importance by international community. From the moment that the TRIPS came into force in our county, the protection of geographical indications has become one of the greatest issues to the scholars.The author introduces the formation of international standards of geographical indications, analyses and summarizes the international standards of geographical indications on this basis in the first chapter of this thesis. The history of protection for geographical indications is more than 100 years from the "Paris Convention" to the TRIPS, "Paris Convention" "Madrid Agreement" and "Lisbon Agreement" witness the course that the international protection of geographical indications passed by which cost more than 100 years. First, "Paris Convention in 1883" is the earliest treaty which concerned protection of geographical indications in the world. This treaty was amended many times in the follow days, and the rules of protection geographical indications part was enriched and consummated increasingly. The specific display as below: Firstly, added the rule of Suppression of Unfair Competition in 1900, and then Anti-Unfair Competition Law has become an important means to protect geographical indications; Secondly, The amendment of Hague in 1925,made the indications of source or the name of origin as the protected object of industrial property. Thirdly,At the meeting of Lisbon in 1985, indications of source became a genuine object of protection. In 1891, the "Madrid Agreement" concluded, and now it has with 4 versions and an additional text. "Madrid Agreement "is an explanation of the international protection of trademarks of"Paris Convention". Besides, The Lisbon meeting in 1985 concluded the "Lisbon Agreement", and then TRIPS which came into force on January of 1996. It is the first international treaties that included international intellectual property in the framework of the World Trade Organization. TRIPS details the protection of geographical indications, which is mainly embodied in Section III, the second part of the agreement, and the first part of "general principles and basic principles" and the third part of "intellectual property" and other relevant regulations.Along with the continuous development of international standards of protection of geographical indications, today on the international scene two camps appeared represented by the USA and European Union. Although generally developing countries on the issue of intellectual property rights as a whole, But on the issue of geographical indications in the opposition, some on the side of United States and the other on the EU side. As the world's largest developing country-China has a tremendous amount of traditional geographic and cultural factors which provides a broad space for the development of geographical indications; Therefore, I think that we should strengthen the protection of geographical indications.The second chapter focuses on the absorption and application of the protection standards of geographical indications after China entry WTO. After China entry WTO, China has amended the corresponding laws, which also includes the revisions of "trademark law". The new "trademark law" provides direct protection for geographical indications. There are two parts: Section 2 of Article 10 and Section 1 of Article 16, in which the protection is a passive protection. These clauses only provide for a ban on place-names trade marks and prohibit registration and use for false geographical indications as trademark. On the basis of the "Trademark Law", we formulate the "Rules for the Implementation of the Trademark Law" and the "Procedures for the Registration and Administration of collective trademark, Certified trademark "respectively, make specific provisions on the protection of geographical indications. These include applications, and uses and the permission for uses and transformation of such transformation and transmission of collective trademarks and certified trademark. Along with the constant development of China's system of protecting for geographical indications, in 2005 also introduced the Regulations on Protection of "products of geographical indications". In addition, the relevant provisions the "Anti-Unfair Competition Law", "Product Quality Law" in the light of geographical indications protect geographical indications.A certain extent, there are still some loopholes in our law. The problem of confuse the trademark of place and the geographical signs. The trademark of type of geographical signs registered in good faith still valid, based on Article 24 of TRIPS and Article 16 of the "Trademark Law", which results in the confuse the trademark of place and the geographical signs. I propose that we should further make clear the concept of trademarks of place and geographical indications, meanwhile we should protect them dually, or protect the one which the best interests can be realized only. Second, there are conflicts of management. In China, the protection of geographical indications is managed by two management departments. Each department can identify and register for all product. In the process of protection, sometimes there will be conflict situations among management departments. So I suggest that we should clarify the functions of the department. We should detail the contents of the various departments. Because geographical indications have higher demands for product quality supervision and control on the production process, so it should be left to China Commodity Inspection Bureau responsible for the management and protection, for it is capable of monitoring product quality and production process. Thirdly, geographical indications show the quality of goods. Due to the special requirements of its geographical indications, the quality of goods with protected instructions should be higher. But the quality of goods with signs from the geographical trademark and general instructions is not different. This led to a loss of credibility for geographical indications. Although the"protection of geographical indications provided products", provided a clear meaning for products of geographical indications, but the provision about insurance for product quality of geographical indications is rather vague. So author suggest that we should detail criteria of approval on geographical indications and make clear the specific requirements for the quality of the commodities, raw materials, precision, manufacturing methods, the geographical characteristics of the area of origin according to the actual situations.