Research On The Fair Use System Of Geographical Indication Certification Trademark

In China,geographical indications are doubly protected by special law and trademark law.When placed under trademark law for protection,it can be applied for a proof of or a collective trademark.Different from normal trademarks,the point of its protection lies in the relationship between the quality of its products and their origin,while ordinary trademarks are only for indicating the source of commodities.Based on its special characteristics,China has no explicit regulations for the determination of its infringement issues at this stage,and only provides for its registration and management.This leads to the lack of relevant legal regulations for fair use,which is an important part of proving trademark infringement cases.Fair use is a common defense in trademark infringement cases,because the geographical names in the geographical indications certification marks belong to the public domain and cannot be completely prohibited from being used by others.The fair use system can guarantee the correct exercise of rights by the exclusive right holder of the geographical indications certification marks,while also imposing reasonable restrictions on their rights,so as to maintain the rights of the exclusive right holder of the certification marks and the public.However,at present,China’s reasonable use system is not perfect enough,which leads to controversies in judicial practice for the determination of such situations.Therefore,this paper from basic theory of fair use of certification mark and the recent developments of China’s legislation,compares the differences between fair use of geographical indications and ordinary trademarks,studies and draws reference from foreign fair use systems,further discovers the defects of China’s rational use and present the thoughts of refining the system.This paper will discuss the fair use system of geographical indications in China from four parts.The first part discusses the theoretical foundation of geographical markers and certification marks respectively,points out the special characteristics of certification marks of geographical indications,and introduces the concept of fair use of certification marks by discussing the fair use in general trademark law.Finally,the practical value of the reasonable use of geographical symbols proof of marks in social,economic and cultural aspects is discussed.The second part begin with a discussion of status of legislation of China on certification marks,precisely composes and analyzes several classic cases,generalizes a large number of cases related to the fair use of certification marks in judicial practice at the present stage,summarizes the core issues,and draws out the problems of the fair use system of certification marks of geographical indications at the present stage through the research of the central question.The third part examines and analyzes the rational use rules of certification marks in several representative countries.Their characteristics and commonalities are compared,as a way to propose inspirations for the establishment of the fair use system in China.The fourth part mainly focuses on the problems found in the above-mentioned legislative and judicial status of fair use in China,namely,the conflict between the registration of certification marks and geographical indications due to the overly simple legislative provisions,the unclear standard of fair use,the unclear restriction of fair use by non-member operators,and the unclear allocation of the burden of proof,etc.,and proposing the ground rules will follow in the build of the rational use system.At the same time,it draws on foreign legislation,scholars’ theoretical research and the judging standards in judicial practice to provide targeted opinions for further improving the fair use of certification marks in China.