| Geographical Indication has been always highly valued by all countries in the world as it contains great economic benefit and cultural inheriting function. Many countries have legislation to protect their Geographical Indication. The 'Agreement on Trade-Related Aspects of Intellectual Property Rights '(hereinafter referred to as TRIPS) reached by WTO, for the first time, sorted it out as an independent category of Intellectual Property Rights (IPR), which ushered in a new era for protection of Geographical Indication as IPR. China boasts a long history, vast territory and abundant resources which results in a wide range of famous products with regional characteristics as well as affluent geographical indication resources. Our Geographical Indication products contribute a major portion to China's exports. Therefore, enhancing legal protection system for Geographical Indication could be a breakthrough for China to further develop world trade market and improve export competition environment. In the upcoming session of WTO multilateral negotiation, Geographical Indications protection is a major topic in the talk on agricultural commodities. How to clarify our stands and strive for maximum benefits for China during this discussion is the pressing question in front of us. Nevertheless, there are still quite a number of problems existing in China's legal protection of Geographical Indication at present, not only in terms of legislation but also in practice. Therefore, for China, it bears special significance to make a study on this subject, and which is also where my intention lies in picking this topic.This article starts with analyzing the concept of Geographical Indication, further elaborating its legal attribution, briefing the main international treaties and typical legislation models adopted by other countries, then analyzing the problems existing in China and exploring the causes, finally bringing forward legislation proposals. The main text of this article is divided into 5 parts as follows:Part I, based on Clause I, Article 22 of TRIPS and Article 16 of China's Trademark Law, analyzes the concept and connotation of Geographical Indication and clarifies relevant concepts; besides, it straightens out the relations between geographical indications and indication of source, between appellations of origin and trademark.Part II, mainly talks about the legal nature of Geographical Indication. First, backing on the preamble of TRIPS, it points out that Geographical Indication is a private right; then analyzes its legal nature in sense of Philosophy of law, and explores its IPR attribution by adopting Property Right Labor Theory and Incentive Theory; finally, it sums up its legal characters: being well-known, long-lasting and common in rights.Part III, presents the international legislation for protection of Geographical Indication. Firstly, it introduces some famous stipulations, such as 'Paris Convention', 'Madrid Agreement', 'Lisbon Agreement' and TRIPS; secondly, it analyzes two typical legislation models, i.e. specialized model of France and trademark law model of U.S.A, and explains their system design and traits respectively.Part IV, focuses on talking about the current problems and the causes in China. It starts with recalling the brief history of our country in protection of Geographical Indication, then followed by presenting the current status of legislation, and looks into related regulations in China's Trademark Law and Provisions on the Protection of Geographical Indication Products. It ends up with existing problems exposure and causes analysis.Part V, develops the legal system concept for protection of Geographical Indication in China. First of all, it puts forward the concept of establishing a special law in China for this purpose and analyzes the reasons of adopting Special Legislation model; then it brings forward concrete legislation proposals in terms of the right nature, right contents, right restrictions, right conflicts, subjects and objects of rights etc.
|
PDF Full Text Request