The Essence of Genuine Geographical Indication Protection and a Unified Legislative Framework on Geographical Indications in China

Abstract

As an independent type of intellectual achievement, genuine geographical indications (GIs) are essentially product categories rather than commercial marks, and the legislation on them is a product protection system rather than a set of rules for mark protection. The scarcity, non-industrial nature, and public nature inherent to GIs are attributes of product categories. Their premium effect, their role in safeguarding traditional culture, and their function in supporting local development are all realized through product protection. A genuine GI system follows the legal logic of products in matters such as name genericization, reputation attributes, the scope of protection, and the relationship with trademarks. And its operational mechanisms in terms of the allocation of authority, the forms of expression, confirmation review, enforcement supervision, and even extraterritorial effect are all centered on product compliance supervision, which falls squarely within the domain of public law. The compromise and co-existence of product protection and mark protection in positive laws are the result of international realpolitik. Sui generis legislation, trademark law, and comprehensive industrial property codes providing the protection of GIs, according to the attribute orientation, could be divided into product protection mode, commercial mark mode, and hybrid mode. It is recommended that China’ s legislative approach to GIs be unified under a dedicated special statute, anchored in a product protection mode, and integrated with a national quality management system. GIs should be divorced from private law so that the protection of GI trademarks could be withdrawn from the product-specific regime and governed by the general law applicable to commercial marks.

Keywords

geographical indications (GIs) / appellations of origin / product protection / trademark law / anti-unfair competition law

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Higher Education Press