On The Protection Of Geographical Indication Through Trademark Law In Our Country

Our country is abundant with geographical indications(GI)which have great commercial and economic value.However,compared to the Europe which had a long history of GI protection and mature protection mechanism,our country has no history of GI protection.Currently,our country takes the two-way protection for GI,that is protection through Trademark Law and special legislation.Protection through Trademark Law means to register the GI as certification trademark or collective trademark and protect it according to trademark law;protection through special legislation means to protect according to relative rules issued by General Administration of Quality Supervision and Ministry of Agriculture.The regulations about GI protection were added as amendment when our country entered WTO,while the special legislation was learned from EU.The two-way protection incurred many problems in practice.Part of the GIs which were registered as certification or collective trademark in the Trademark Bureau were registered in General Administration of Quality Supervision or Ministry of Agriculture as GI products.The same GI was registered through different procedure in three different departments,which means the market subjects need to face to the differences between the examination standards,application material,beneficiaries and management scales due to the difference between registration systems.Some GI were registered more than once for a full protection,whichAggravates the burden and operating cost of the market bodies.Additionally,for a same GI,some use the GI certification or collective trademark,some use the GI products,which causes the conflict of rights with the inconsistency of the right holders.As a GI was registered in three departments,the joint management and protection causes negative effects such as the disharmony of protection and law enforcement,and the waste of management resource,which affects the protection of GI.The protection through Trademark Law and the special legislation in our country are two totally different models.The protection through Trademark Law is a model major in protection through private law,while special legislation tends to establish a sheer protection through public law.The most fundamental problem of the protection through special legislation is confusing the public law protection and private law protection.GI has the nature of property,involves firstly the private interests,which should be the object of the private right,and should be protected by private law in the priority manner.And GI also has relation with public interests,thus should be managed by public power.Our countries Trademark Law can provide such model of protection.Therefore,in our country,the protection of GI can be included into the Trademark Law.There is no need to create a new protection system.This article was divided into three parts,starting from the discussion of the public law and private law protecting the GI,then arguing the rationality of GI protection through trademark law in our country.The first part mainly elaborates the concept of GI and the theory of public and private law of GI protection.First it introduces the concept of GI,the protection of GI in international treaties and the concepts related to GI.And then it talks about differences between the concept of geographical indications and other commercial signs such as trademarks,indication of source and appellation/designation of origin.Then,it discusses the theory of public law and private law for the protection of GI.In essence,GI is a kind of property benefit,having property attributes.And the interests involved are first of all private interests.Therefore,GIs can be the objects of private rights and should be protected through private law firstly.However,due to the hugepublic interest in GI,public power intervention should be allowed.The second part introduced two-way protection models in China.The first is protection through trademark law with the Trademark Law and relevant Regulations,that is protection by private law.The other is the protection through special legislation with relative rules issued by AQSIQ and the Ministry of Agriculture.In fact,the model of protection through special legislation established a set of parallel protection model beside the protection through trademark law.This model focuses on the government's management and supervision with no provision of civil remedies.The primary problem is that it confuses the public and private law protection.If it is completely protected through public law,there is no need to register GI.Requirement for registration of GI products will lead to increased burden on market entities and high administrative costs.From the point of view of the country,China also lacks the basis for establishing a special law protection mechanism.The third part discusses the rationality of fully integrating the geographical indication into the trademark law system.China's trademark law protection system provides both private law and public law protection.There is no need to establish a separate mechanism to protect GIs.