Research On The Recognition Of Fair Use Of Geographical Indication Certification Trademark

Compared with other countries,our country’s geographical indication resources have obvious advantages,and the protection of geographical indications is also more diverse.At present,the main protection methods in our country are trademark law protection and separate legal protection.The trademark law mainly provides protection through the registration of geographical indications as collective trademarks and certification trademarks.Compared with ordinary trademarks,the greatest particularity of geographical indication certification marks lies in its quality assurance function,and it has a higher collective character,but its distinctiveness is lower.It is often fraudulently used by other operators because of its high commercial value,resulting in trademark infringement disputes for geographical indication certification.The reason is that our country has no clear regulations on the fair use of geographical indication certification marks,which leads to inconsistent and unconvincing judgments made by judges in judicial practice.Therefore,it is necessary to study the fair use of geographical indication certification marks,clarify the relationship between fair use and trademark use and the possibility of confusion in related infringement cases,discuss the factors for determining the fair use of geographical indication certification marks,and give relevant suggestions.The first part directly points out the problem,comparing it with ordinary trademarks from the legislative and judicial level,and points out the status quo that the particularity of geographical indication certification marks is ignored.On the one hand,the legislation does not reflect the particularity of geographical indication certification marks.At the same time,there are very few laws and regulations related to the fair use of geographical indication certification marks.The determination of its fair use basically refers to the identification ideas of ordinary trademarks,resulting in confusion of the boundaries of geographical indication certification trademarks.On the other hand,after analyzing a number of typical cases,it is found that it is rare that the particularity of geographical indication certification marks is considered in the trial.Therefore,there are questions such as whether products with consistent origin and quality can be used,whether the trademark use is the prerequisite for infringement,and what the relationship between legitimate use and the possibility of confusion is.The second part analyzes and discusses the above-mentioned problems.First of all,geographical indication certification marks and collective marks are not equivalent,and the fair use of certification marks cannot refer to the regulations on collective marks in the "Regulations for the Implementation of the Trademark Law".In order to improve the protection of the reputation of geographical indications,the procedural requirements for applying for certification trademarks must be strictly followed.Even if the origin and quality meet the requirements,the trademark owner’s permission must be obtained before the certification trademark can be applied.Secondly,this article believes that the view of equating non-trademark use with fair use is open to discussion.The particularity of the geographical indication certification mark determines that the use of the trademark as a prerequisite for infringement will improperly expand the scope of fair use,and cause some illegal acts that infringe on the trademark function to escape the punishment of infringement.Finally,regarding the controversy over the possibility of confusion,this article believes that although fair use can counter a certain degree of confusion,the possibility of confusion should still be the core when determining infringement.Even if it constitutes fair use,the judgment of the possibility of confusion cannot be ignored.Only after clarifying the above-mentioned issues,can suggestions for perfecting the determination of the fair use of geographical indication certification marks be made.The third part combines the above discussion to give suggestions on perfecting the identification of the fair use of geographical indication certification marks from the legislative and judicial levels.At the legislative level,it is required to improve the legal use rules of geographical indication certification marks in relevant laws and regulations.On the one hand,it is necessary to clarify the connotation of its fair use to provide a theoretical basis for judicial practice;on the other hand,it is necessary to clarify the scope of the right to use geographical indication certification marks to clearly distinguish geographical indication certification marks from collective trademarks so that we can highlight the protective role of certification marks for the particularity of geographical indications.At the judicial level,three additional considerations are required on the basis of the determination of the fair use of ordinary trademarks.The first is the use of "place name + generic name".Such behavior should be determined that the perpetrator is subjectively malicious in using the goodwill of others,and constitutes trademark infringement.The second is the operator’s obligation to distinguish.Taking into account the weak distinctiveness and high commercial value of geographical indication certification marks,operators are required to use geographical names in production and business activities to be accurate to the level of administrative divisions,and place names must not be used in product links sold online.The third is the duty of care of consumers.Due to the low cost of infringement of geographical indication certification trademarks and the simple and diverse ways of infringement,consumers need more attention in commercial activities to avoid confusion.The judge should treat this in judicial practice and consider with the cognitive level of the general public to make a judgment.