Discussion on Legal Protection Mode of Geographical Indications
Published:
2010-07-31
Summary:China is rich in geographical indication resources, in order to fulfill the obligations of the trips agreement to WTO member countries, China has also strengthened the legal protection of geographical indications, but the protection time is still short, and experience needs to be accumulated, it is necessary to refer to the legislative model of other countries, combined with the protection of geographical indications in China, under the premise of maximizing national interests, actively explore the mode of protection of geographical indications in China, this paper tries to analyze and discuss the concept of geographical indication, the mode of geographical indication protection at home and abroad, the problems and solutions of our country's model, and combined with many aspects of judicial practice, in order to put forward some suggestions to improve the legal protection of geographical indications in China.
Key words:Protection mode of geographical names and trademarks
In 1985, China joined the Paris Convention for the Protection of Industrial Property and began to protect geographical indications as a kind of intellectual property. In 1989, at the request of the French government, the State Administration for Industry and Commerce issued the "Notice on Cessation of the Use of the Words Champagne or Champagne on Alcoholic Commodities", fulfilling the obligations of the member states of the Paris Convention and using "Champagne" or "Champagne" as The appellation of origin is protected. Since the trips agreement explicitly included the protection of geographical indications into the scope of intellectual property rights, the debate on the standards and models of the protection of geographical indications has become increasingly fierce. Here, we actively explore the protection mode of geographical indications in China, in order to give more attention to this issue.
1. the concept of geographical indications
(I) concepts related to geographical indications.
Article 22, paragraph 1, of the TRIPS Agreement provides that a geographical indication means that it indicates that a commodity originates from a region or place in the territory, and that the specific quality, reputation or other characteristics of the commodity are mainly associated with the geographical source. Also known as "geographical indication" or "geographical indication", its composition generally has two forms: one is the combination of geographical name and commodity name. Such as "Jinhua ham", "Shaoxing old wine", etc.; the second is directly to the geographical name as a geographical indication. For example, Champagne is not only a provincial name of France, but also a geographical indication of wine produced in the region.
Article 16 of China's Trademark Law stipulates: "if there is a geographical indication of a commodity in a trademark, and the commodity does not come from the area marked by the sign and misleads the public, it shall not be registered and prohibited from use, but those that have been registered in good faith shall continue to be valid. The term" rational mark "as mentioned in the preceding paragraph refers to a mark indicating that a commodity originates from a certain region and that the specific quality, reputation or other characteristics of the commodity are mainly determined by the natural or human factors of the region."
In the "Regulations on the Protection of Products of Origin" formulated by the former State Bureau of Quality and Technical Supervision of China, geographical indications are called products of origin. Article 2 of the regulation stipulates: "Products in the region of origin refer to products produced in a specific region in accordance with traditional processes using raw materials produced in a specific region. The quality, characteristics or reputation essentially depend on the geographical characteristics of the region of origin and are named after the region of origin after examination and approval in accordance with these regulations."
National Bureau of quality inspection in June 7, 2005 promulgated the "geographical indication products protection regulations" also known as geographical indication products. Article 2 stipulates: "Geographical indication products refer to products that are produced in a specific region and whose quality, reputation or other characteristics essentially depend on the natural and human factors of the place of origin, and are named after geographical names after examination and approval."
Comparing China's geographical indication products and products of origin with geographical indications in TRIPS, there are the following common important characteristics: the product or commodity originates from a specific region; the quality and reputation of the product are related to the specific geographical environment of the region.
However, from the current situation of legislation on the protection of geographical indications in China, the concept of the protection of geographical indications in China is unclear and confused. Appellations such as "geographical indication", "origin of goods", "mark of origin", "product of origin" and "geographical indication product" are commonly found in newspapers and media. Their usage and appellation are arbitrary, which causes confusion to people's understanding and is not conducive to the promotion and implementation of the legal protection of "geographical indication. Therefore, clarifying the understanding and understanding of the meaning of the concepts of "geographical indication" and "mark of origin" is the premise of the legal protection of "geographical indication.
(II) the distinction between two sets of different concepts.
It is important to note that we should distinguish between the following two sets of concepts.
First, geographical indications and the origin of goods are two different concepts. The origin of the goods, also known as the country of origin of the goods, usually refers to the "economic nationality" of the goods, which refers to the origin of the goods from a country, group of countries or a region (independent customs territory, etc.). It originates from the need for country-specific trade statistics in the field of international trade and is mainly regulated by customs or customs-related laws or departments. It is different from the geographical indications, the geographical environment of a particular area, the quality of no specific requirements and contact.
Second, geographical indications and marks of origin are also two completely different concepts. The concept of origin mark contains both the meaning of the origin of the goods and the geographical indication. Article 1 (1) of the Madrid Agreement for the Suppression of Indications of Origin of False or Fraudulent Goods defines indications of origin: "Where goods bear false or fraudulent indications which indicate, directly or indirectly, as the country of origin or origin in one of the countries to which this Agreement applies, such countries shall seize them at the time of import." According to the above provisions, the mark of origin includes not only goods produced in a country but also goods produced in a place. Article 10 of the Paris Convention for the Protection of Industrial Property also provides for indications of origin. According to my country's "Regulations on the Administration of Appellations of Origin" and "Measures for the Implementation of Regulations on the Administration of Appellations of Origin", "Appellations of Origin" includes two parts, namely "country of origin mark" and "geographical indication". The mark of the country of origin refers to "the logo, label, label, text, pattern and various certificates related to the origin of a product or service from a certain country or region." In practice, the origin mark can contain geographical indications, but the connotation and extension of geographical indications are completely different. A strict distinction should be made. And many of China's geographical indications of the non-standard name should also be unified understanding.
Combining the above concepts and distinguishing similar concepts reflects the connotation that geographical indications should have; first, the geographical name of geographical indications is authentic and indicates the true source of goods or services. Geographical names must be real, not fictitious. Second, the goods marked by geographical indications have unique quality, reputation or other characteristics. Such as the West Lake Longjing, with color green, fragrant, mellow, beautiful quality and characteristics. Third, geographical indications are closely related to the specific quality or characteristics of the goods they indicate, and they have the function of identifying other products of the same kind. The reason why general geographical names can develop into geographical indications is that the specific quality of products is determined by natural and human factors in the place of origin.
2. Protection Modes of Geographical Indications at Home and Abroad and Problems in Domestic Modes
(I) International Social Geographical Indications Protection Model
The TRIPS Agreement protects geographical indications as an independent intellectual property right alongside trademarks, patents and copyrights, and its level and intensity of protection is higher than the legal provisions of previous international treaties. The protection measures of geographical indications in the TRIPS Agreement, especially the special protection of wine and spirits, meet the basic requirements of the European Union and other European countries, but also take into account the long-term use of certain geographical indications in the United States and other countries. The protection of geographical indications provides a number of exceptions. However, the signing of TRIPS did not resolve all geographical indication disputes. In the subsequent multilateral talks, although some new progress has been made, the negotiations are still a difficult process because of the differences in the interests and traditions of all parties involved.
At present, there are many modes of geographical indication protection in the international community.
The first is the special legislative protection model represented by France, which treats geographical indications as a special industrial property right, formulates a complete and special protection method for geographical indications, and adopts special legislation for registered geographical indications and appellations of origin. Way to give protection.
The second is to protect geographical indications through anti-unfair competition laws, such as Sweden.
The third model is to incorporate geographical indications into the trademark law system as certification trademarks and collective trademarks, and to protect geographical indications by registering certification trademarks or collective trademarks. More than 100 countries and regions such as the United States, Britain, Germany, Australia and Italy adopt this protection mode.
It can be seen that the protection of domestic law in France exceeds the world standard, while the protection of domestic law in the United States lags behind the world standard. So, what causes the United States to spare no effort to promote a high level of protection of intellectual property rights on a global scale, but at the same time to stop the protection of geographical indications? This has profound economic and historical reasons.
The formation of the protection mode of geographical indications is the product of the development of a country's history, humanities and environment. European countries with vast geographical indication resources have many traditional industries, which have spread to all parts of the world because of their long history and unique culture, and gradually establish a good reputation and reputation, and then gain wide recognition. It is not surprising that these countries have formed a system for the protection of geographical indications and strongly require that the protection of geographical indications of wine and spirits be expanded on the basis of the protection of geographical indications under the TRIPS Agreement.
In the short history of the founding of the United States, Australia, New Zealand, Canada, Argentina and other European immigrant countries, it is impossible to establish a large number of traditional industries with a long history and cultural characteristics as France. Geographical indication resources are relatively poor, and the production of many products overlaps with the origin of immigrants in terms of geographical indications. Therefore, the concept of "common terms" is proposed. Instead of formulating a special law on geographical indications, geographical indications are regulated in the trademark law. At the same time, the geographical indication protection methods proposed by some countries, especially France, are refused. Because they do not have advantages in terms of geographical indication resources, fearing that the export of similar products will cause serious economic losses, it is in the national interest to oppose the expansion of the scope of protection of geographical indications.
To give a typical example, Budweiser beer brewed in Bohemia in the Czech Republic has a history of more than 700 years. The United States has recognized Budweiser as a trademark. This beer is allowed to be used in a different meaning in the United States-that is, the trademark of a beer produced in the United States. However, Budweiser beer in Czech Republic is not protected as a geographical indication, which shows the disputes on the protection of geographical indications in different countries. In order to improve the legal protection of geographical indications in the TRIPS Agreement, the Doha Ministerial Declaration put geographical indications into the agenda of the new round of WTO multilateral trade negotiations. The discussion and debate on the protection of geographical indications will continue.
(II) Protection Mode of Geographical Indications in China
China has a long history, vast land, numerous famous specialty. These specialty products with the characteristics of geographical indications constitute the economic boutique of the Chinese nation. However, the history of the protection of geographical indications in our country is relatively short. Today, when the protection system of geographical indications is not perfect, in the face of the complex international protection environment of geographical indications, it is very important to carefully choose the protection mode of geographical indications in our country and determine the scope of protection of geographical indications. China's accession to the WTO commitment to comply with the TRIPS Agreement on the relevant provisions of the geographical indications. Item 264 of the Report of the Working Party on China's Accession states: "The representative of China stated that the relevant regulations of the State Administration for Industry and Commerce and the the People's Republic of China General Administration of Quality Supervision, Inspection and Quarantine provide partial protection for geographical indications, including appellations of origin."
Therefore, at present, China implements dual protection of geographical indications, namely trademark protection and geographical indication product protection.
On August 17, 1999, the former State Bureau of Quality and Technical Supervision promulgated the "Regulations on the Protection of Products of Origin", which is the most important regulation for my country to implement the protection of products of origin. On December 7, 1999, the "General Requirements for Products of Origin" issued by the former State Bureau of Quality and Technical Supervision made operational regulations on the standards, outer packaging, labels, and special marks of products of origin. What is more characteristic is that the products of China's origin provide for the use of special marks. The "Measures for the Implementation of the Regulations on the Administration of Marks of Origin" promulgated by the former State Administration of Inspection and Quarantine on January 1, 2001 and the "Regulations on the Administration of Marks of Origin" promulgated by the former State Administration of Entry-Exit Inspection and Quarantine on March 5, 2001 are mainly aimed at the country of origin. However, there are also some regulations on products of origin, which provide legal protection for products of origin domain name.
On July 15, 2005, the "Regulations on the Protection of Geographical Indication Products" promulgated by the General Administration of Quality Supervision, Inspection and Quarantine came into effect, and the products of origin were renamed as geographical indication products. The "Regulations on the Protection of Products of Origin" promulgated by the former State Administration of Quality and Technical Supervision "Repealed at the same time. The "Regulations on the Protection of Geographical Indication Products" has two obvious improvements: one is to eliminate the provisions on the country of origin in the "Regulations on the Protection of Products in the Region of Origin"; the other is to clarify the "Regulations on the Administration of Appellations of Origin" and "Regulations on the Administration of Appellations of Origin". If the content of geographical indications in the Regulations is inconsistent with the Regulations on the Protection of Geographical Indication Products, the Provisions shall prevail. This regulation effectively regulates and coordinates the relevant domestic regulations on geographical indications and the country of origin, which is conducive to promoting standardized law enforcement.
In order to meet the needs of joining the WTO, the Trademark Law revised in 2001 protects geographical indications as an independent intellectual property right, and stipulates that geographical indications can be registered as certification trademarks or collective trademarks. The "Measures for the Registration and Administration of Collective Trademarks and Certification Trademarks" implemented on June 1, 2003 have made detailed provisions on the conditions, application departments, and use management of geographical indication collective trademarks and certification trademarks.
Compared with the protection standards of geographical indications under the TRIPS Agreement, China's current legislation has adopted the contents of Article 22, paragraphs 1 and 3, and Article 23, paragraphs 1 and 3, of the Agreement, basically reaching the minimum standards for international protection of geographical indications. However, according to the current laws of our country, the Trademark Office of the State Administration for Industry and Commerce and the General Administration of Quality Supervision, Inspection and Quarantine have the right to protect and manage geographical indications. According to Article 2 of the Trademark Law, the Trademark Office of the administrative department for industry and commerce under the State Council is in charge of trademark registration and administration throughout the country. According to Article 4 of the Regulations on the Protection of Geographical Indication Products, the General Administration of Quality Supervision, Inspection and Quarantine uniformly manages the protection of geographical indication products throughout the country. Two independent departments can exercise the power of examination and approval and management of geographical indications in accordance with the law, which is not only manifested in overlapping power and waste of management resources, but objectively, there are local industrial and commercial administrative departments and quality and technical supervision departments doing their own things, resulting in different owners claiming rights on the same product and the same logo, causing conflicts of rights, and more seriously, leading to enterprises and farmers at a loss. And can not guarantee the fairness of the examination and approval process.
Therefore, we should actively explore the protection mode of geographical indications in line with China's national conditions.
Problems and Solutions of 3. Protection Mode in China
(I) Typical Case Analysis
The plaintiff Zhejiang Food Co., Ltd. (hereinafter referred to as the food company) and the defendant Shanghai Taikang Food Co., Ltd. (hereinafter referred to as Taikang Company) and the defendant Zhejiang Yongkang Fourth Ham Factory (hereinafter referred to as Yongkang Ham Factory) concluded by the Shanghai Second Intermediate People's Court The trademark infringement case of "Jinhua Ham" is a typical case.
The plaintiff is the exclusive right holder of the registered trademark of "Jinhua ham. The registered trademark consists of the words "Jinhua ham" plus a seal-shaped box, which is a visible sign with distinctive features. In July 2003, the plaintiff discovered that the ham being sold by Taikang Company used the plaintiff's registered trademark "Jinhua Ham". The production unit of the ham was Yongkang Ham Factory. The plaintiff took the defendant to court on the grounds that the defendant had infringed its exclusive right to use the registered trademark. Defendant Yongkang Ham Factory argued: (1) The plaintiff's registered trademark logo is "Jinhua", not "Jinhua Ham". (2) "Jinhua ham" is the product name of the origin domain. 55 enterprises including the defendant can use the product name of "Jinhua ham" after approval. The defendant's use of the name does not infringe the plaintiff's exclusive right to use the registered trademark. (3) The defendant's use of "Jinhua" is a reasonable use. Can correctly state the source of its products, the use of good faith use, in line with the principle of good faith. (4) The defendant subjectively did not intentionally infringe upon the plaintiff's registered trademark.
After hearing, the court held that the core of the protection scope of the plaintiff's registered trademark exclusive right is "Jinhua ham", and its exclusive right is protected by law. Any infringement of the plaintiff's exclusive right to use a registered trademark shall be held liable in accordance with the law. However, the plaintiff has no right to prohibit others from using it properly. "Jinhua Ham" was approved by the State General Administration of Quality Supervision, Inspection and Quarantine to implement the protection of products in the region of origin. The defendant Yongkang Ham Factory was approved to use the special mark of "Jinhua Ham" in the region of origin. Therefore, the above-mentioned behavior of Yongkang Ham Factory belongs to proper use. However, the defendant Yongkang ham factory should regulate the use of products of origin in the future. The plaintiff and the defendant shall respect each other's intellectual property rights and exercise their rights in accordance with the law. The plaintiff accused the two defendants of infringing on the basis of the exclusive right to use the registered trademark, which was not supported by the court. Accordingly, the court ruled that the plaintiff's claim was not supported.
The contradiction in this case reminds us to carefully examine the problems existing in the legal protection mode of geographical indications in our country, actively explore and improve the legal protection mode, and avoid the conflict of rights.
(II) Improve the Mode of Legal Protection of Geographical Indications
It is the conflict of the above legislation that leads to our confusion in practice: how to use geographical indication product name and product or service trademark conflict, whether geographical indication product must use geographical indication product name and special mark at the same time, how can we improve the legal protection mode of geographical indication, so as to avoid these contradictions and disputes as far as possible. It is urgent for us to clarify our understanding and solve it, so as to establish and explore the coordination mechanism under the dual protection mechanism of geographical indications.
1. Strengthen the protection of geographical indications.
The protection of geographical indications in China's Trademark Law is relatively general, and there is still a certain distance from the requirements of the TRIPS Agreement. We should improve the protection of geographical indications in the Trademark Law to prevent unregistered geographical indications from being improperly registered. Although Article 16 of my country's Trademark Law stipulates what is a geographical indication, the competent authority still lacks a unified operability standard when examining and approving it. For some geographical indications that meet the characteristics of geographical indications or have a certain degree of popularity but are not registered, there is a lack of corresponding measures. Products are registered as ordinary trademarks.
At the same time, China's Anti-Unfair Competition Law should be improved and geographical indications should be included in its protection. The Trademark Law has certain defects in the protection of geographical indications, while the Anti-Unfair Competition Law has great advantages in protecting social welfare and consumers' interests. It provides an important guarantee for the protection of geographical indications from the aspect of tort relief, all false labeling and counterfeiting that confuse consumers and cause damage to the right holders can invoke the anti-unfair competition law. Many countries in the world adopt this method of protection. We can learn from the experience of other countries. If a certain geographical indication is used in the course of trade, misleading or deceptive or likely to mislead or deceive, so that the public has the quality and reputation of the product Misunderstanding and other characteristics, the injured party has the right to file an "anti-unfair competition lawsuit".
2. Straighten out the relationship between geographical indications and previously registered geographical names and trademarks
As in the aforementioned case, "Jinhua ham" is the trademark of Zhejiang Food Co., Ltd., which is registered first; "Jinhua ham" is also a geographical indication product. After approval, how to distinguish consumers when using it is a difficult problem.
In the face of the fact that a considerable number of geographical indications have been improperly registered as ordinary geographical names, we should straighten out the relationship, divide the two by some means, and standardize the scope of application of the two, so as to avoid power conflicts. First of all, different signs should be used to clearly distinguish between geographical indication products and trademarks, so as to avoid confusion or misunderstanding by consumers; secondly, all enterprises approved to use geographical indications should be distinguished by their registered trademarks in prominent positions; and the reasonable scope of use of geographical names and trademarks should be clearly defined. Place names are public, and the trademark owner of a place name trademark cannot absolutely exclude the reasonable use of the place name by others.
3. Examine China's dual-track protection model and actively explore the protection of geographical indications suitable for China's national conditions.
There are different views in the academic circles on whether to consider determining the identification and management enforcement mode of geographical indications by the Trademark Office at an appropriate time. Professor Zhang Yumin of Southwest University of Political Science and Law proposed that my country should adopt a dual-track system of special law protection and trademark law protection --- For products that have an important position in my country's foreign trade, such as tea, Chinese medicinal materials, etc., the administrative department of the State Council (Such as the Ministry of Agriculture) protects through registered geographical indications, and the geographical indications of other products are protected by registered collective trademarks or certification trademarks.
However, the author thinks that it is necessary to protect geographical indications only by means of certification trademarks or collective trademarks at an appropriate time: first, to protect geographical indications by means of registered certification trademarks and collective trademarks, so as to integrate the examination of geographical indications with the examination of trademarks. to ensure that geographical indications do not conflict with prior powers, especially when they are used, which is conducive to trademark registration and management, in order to ensure the legitimate rights and interests of the right holders. Moreover, the application, use, licensing, supervision, etc. of geographical indications need to be standardized, and unified standards need to be used to guide, manage and guide trademark owners. China's industrial and commercial bureau has mature experience, and its professional knowledge level, business scope and ability can ensure the identification and management of geographical indications.
Thirdly, the important responsibility of the quality inspection bureau is to supervise the quality of goods, and whether there are counterfeiting or other infringement of intellectual property rights in the trademarks and geographical indications of export commodities, the management by the quality inspection bureau will lead to the duplication of administrative power. increase the cost of administrative management, it is inevitable that there will be problems such as unclear authority and ultra vires authority of government departments. The mandatory implementation of the provisions of the Regulations on the Administration of Appellations of Origin and the Measures for the Implementation of the Regulations on the Administration of Appellations of Origin, not only the provisions of the Trademark Law on the protection of geographical indications in the form of certification trademarks and collective trademarks are repealed, but also the registered trademarks will be invalidated. If the geographical indications that have been registered through certification trademarks and collective trademarks are to be protected by law, you must also apply for registration with the State Entry-Exit Inspection and Quarantine Bureau, otherwise you may not use it.
Therefore, the author suggests that geographical indication products should be included in the unified protection scope of the trademark law, and the authority and functions of the Trademark Office of the State Administration for Industry and Commerce and the General Administration of Quality Supervision, Inspection and Quarantine in the management and protection of geographical indications should be straightened out as soon as possible, and their management scope and management authority should be reasonably allocated. (About 7203 words)
(This article won the second prize of 2010 Jinan excellent lawyer paper)
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