The rational basis of geographical indication regulation from an EU/China comparative perspective

Geographical indications (Gls) arc one of the most controversial categories of intellectual property rights. The complication of Gi protection not only results from the overlapped dimensions of law, economics, culture and social policy but also is caused by the under-constructed theoretical basis. Thus, the thesis firstly constructs a theoretical foundation of GI protection based on morality and utilitarian theory. The theoretical rationales of GI protection demonstrate and lead to the proposition that Gls are an independent type of intellectual property right as they are justified by their own rationales in addition to conventional justifications for trade mark protection. GI protection not only involves considering signs from the point of view of communicative logic but is also fundamentally influenced by the specificity of the underlying products with the sign as a proxy. Accordingly, doctrinal issues with regard to GI protection should be considered and addressed by reference to its own rules rather than by drawing upon rules applied to the trade mark or unfair competition regimes. After exploring the principal models of GI protection in national law and discussing the advantages and disadvantages of each approach in a theoretical context, the thesis focuses on choice of models in the EU and China by tracing the historical development of Gl protection in both parties. Under the current legal framework of GI protection in the EU and China, the thesis evaluates the rational coherence with regard to two doctrinal issues - qualification and level of protection - in an attempt to clarify the conceptual confusion that surrounds Gls, deal with exceptions to GI protection, and explore the extent to which they should be protected. Based on the theoretical rationales of GI protection, the thesis proposes that a sui generis system designed for GI protection within the intellectual property family, introducing proper state intervention and operating by their own rules is the optimal model of GI protection for China.