Determination Of Fair Use Of Geographical Indications

Fair use,as the main defense,is often used in disputes over infringement of geographical indications by the accused infringers.There are two main ideas for the court to determine the fair use of geographical indications.First,based on the existing infringement theory,the court analyzes the nature of the infringement and measures whether there is a possibility of confusion.Second,according to his or her own understanding,the court analyzes the elements of fair use of geographical indications in every case.Accordingly,the main problem in current judicial practice is the lack of uniformity in the criteria for determining the fair use of geographical indications.The article considers that clarifying the legal connotation of geographical indications and the fair use is a prerequisite for discussing the elements of fair use of geographical indications.According to the Trademark Law,geographical indications can be protected through the registration of collective marks or certification marks,but this does not mean that unregistered geographical indications are not protected.For geographical indications registered as trademarks,the cognition of fair use needs to satisfy the subjective and objective elements.From the subjective point of view,the perpetrator uses the geographical indications with some descriptive words to indicate the real information of the products,which is in accordance with the general commercial practice.From an objective point of view,the perpetrator only uses the "first meaning" of the geographical names or generic terms within the necessary limits and did not use them prominently.The exception is that,based on the special characteristics of geographical indications,it is necessary to analyze the geographical origin,category and quality of the products when using geographical indications in full,so as to avoid confusion and misunderstanding of the geographical origin and quality by the relevant public.