Study On The Problem Of Legal Protection Of Trademarks Of Geographical Names

The trademark of geographical name refers to use the name of a specific spatiallocation of natural or humanistic geography entity as a trademark to be used or to beregistered. Under the circumstance of modern market economy, it is more and morepopular to develop and exploit public resources of geographical names commercially as toutilize the invisible value of geographical names to develop the economy. At the sametime, with the use of trademarks of geographical names, the problems in this process alsogrow with each passing day, and even become one of the hot issues in trademark disputesin China. But our current legal system has failed to make a timely and effective responseto the arising problems of trademarks of geographical names. Throughout the researchresults at home and abroad, it is also a lack of specialized research on the legal protectionof geographical name trademark. In view of this, it is necessary to make a systematicallytheoretical research on the legal protection of trademarks of geographical names, and thusprovide a basis for guiding the legislation and practice.The article analyzes and studies systematically relevant basic theoretical issues oftrademarks of geographical names, which are legal nature and protection foundation oftrademarks of geographical names, registration and register condition of trademarks ofgeographical names, the scope and the strength of protection of trademarks ofgeographical names, mainly through a comparative study, text analysis, case studies andother research methods. And as the theoretical research as a precondition, analyzes andevaluates our China legal protection regime of trademarks of geographical names.Understanding the basic theory of trademark and the law applicable to the specificquestion, ultimately comes down to the legal attribute of trademark and trademark rights.In the view of the traditional trademark classification method of five division, the legalnature of trademarks of geographical names needs to be combined with the specific goodsor services for the overall judgement in the eyes of relevant public, at the same time, italso needs to judge whether the main meaning of trademark signs of geographical namesis geographical names implication. Therefore, geographical name trademarks can not becompletely identified as descriptive trademarks, depending on different cases. It may beany kind of symbol of traditional trademark classification method of five division (exceptforarbitrary trademarks).Geographical names originally belong to the public resources, but the users oftrademarks can gradually "add" trademark significance (the acquired distinctiveness) to trademarks of geographical names, by the use of the trademark symbol containinggeographical names on related goods or services, which makes the symbols become aessential trademark. Which geographical name trademarks can be transformed from publicresources into the nature of private property determines that the trademarks ofgeographical names can be registered as trademarks and the conditions of registration. Theusers of trademarks are entitled to enjoy the trademark rights and goodwill generated bytheir labor, and have a access to legal protection.Trademark distinctiveness is the core concept of trademark theory. From the view ofthe nature of trademark and its formation process, the acquired distinctiveness is thedecision condition whether the trademark can be registered, while the inherentdistinctiveness of trademark is only favorable conditions in the process of trademarkformation. And the acquired distinctiveness is also the decisive factor in determining thescope of trademark protection and the strength of protection. The strength ofdistinctiveness of the geographical name trademarks is decided by the actual useconditions. It can not be concluded that the trademarks of geographical names are "weaklysignificant" and "weakly protective" trademarks, just with reason that geographical nametrademarks are descriptive and the rational use of geographical names. That the trademarkrights of trademark holders have no effect on the rational use of geographical name is notbecause of the smaller protection scope of geographical name trademarks itself,but therational use originally belong to the scope of trademark rights. Similarly, the protectionstrength of trademarks of geographical names are not necessarily weak, and its strength ofprotection is only related to the acquired distinctiveness, has nothing to do with theinherent distinctiveness. There On the basis of the above research, the legal protectionsystem of trademarks of geographical names in China, still exist some system defects andpractical problems, which need to be further improved.