Research On The Infringement Judgment Of Geographical Indication Trademarks

With the convening of the 20 th Party Congress,the Intellectual Property Office emphasized the importance of promoting the revision of the Measures for Registration and Management of Collective and Certification Trademarks,forming a unified legislative purpose and framework for geographical indications,strengthening the protection of the whole chain of intellectual property rights,and optimizing the innovation environment and business environment.By the end of 2022,China approved 5 geographical indication products,approved 524 registrations of geographical indications as collective trademarks and certification trademarks,and approved 6,373 market entities using special geographical indication marks.Thus,it can be seen that the scope of geographical indication trademarks will gradually expand,and with it,a large number of civil dispute cases over the exclusive rights of geographical indication trademarks will arise,so increasing the protection of the rights and interests related to geographical indication trademarks is not only in line with the trend of the development of the times,but also an important display of the achievements of the construction of the rule of law society in China.With the frequent occurrence of infringement cases of exclusive rights of geographical indication trademarks,more subjects of geographical indication rights tend to seek protection of their geographical indication trademarks by means of trademark law,mainly embodied in two ways: applying for registration of geographical indication certification trademarks and geographical indication collective trademarks.However,China has not yet provided clear infringement standards for these two types of trademark infringement cases,mainly because of the inaccurate scope of protection,unclear infringement standards and unclear rules for the application of rights limitation standards.These problems have not yet been solved,resulting in a large number of the same cases in judicial practice in different courts with very different results,and even the same court in different periods of time with very different results.This has a great negative impact on the stability of the law,so the study on the infringement of geographical indications is still a problem that should be paid attention to in the current academic circles.This paper will systematically study the infringement of geographical indications from the following four parts.Part Ⅰ: Theoretical basis of geographical indications protection.This part introduces the basic theories of geographical indications,including the overview of geographical indications and the attributes of rights,especially the characteristics of geographical indications as an independent intellectual property right that can identify the place of origin,and its private and collective rights,which make it both similar and different from ordinary goods or service marks.This section analyzes the relationship between geographical indications,certification marks and collective marks,and elaborates and expands on this section.Then,it briefly introduces the three main modes of protection for geographical indications,namely,the protection mode of trademark law,the protection mode of special law,and the protection mode of anti-unfair competition law.This part is mainly a theoretical pavement to facilitate the research on the infringement of geographical indication trademarks later on.Part Ⅱ: Protection Scope of Geographical Indication Trademark.This part introduces the scope of protection of geographical indication certification marks and geographical indication collective marks in the light of their special circumstances,and finally brings out the issue of how to balance between geographical indication protection and public interest.Both the certification mark of geographical indications and the collective mark of geographical indications have a common point,that is,they combine the characteristics of geographical indications with those of certification marks and collective marks respectively.From this,it can be seen that the special characteristics of the geographical indication certification mark mainly lie in the quality of the goods and the origin of the products it identifies,while the special characteristics of the geographical indication collective mark mainly lie in the fact that its commodity mark belongs to a relatively closed and fixed collective,association or organization,and the members of this collective organization are required to meet certain standards when they enter the organization.The research in this part can help later on to better analyze the infringement determination criteria of geographical indications trademarks and other related issues.Part Ⅲ: Rules for Determining Infringement of Geographical Indication Trademarks.This part is the main research purpose of the whole paper,which introduces the commonality of the study of infringement determination of geographical indication trademarks,and the special circumstances and regulations of geographical indication certification trademarks and geographical indication collective trademarks respectively.The main research method is combined with the current judicial practice jurisprudence,firstly,the feasibility of using the likelihood of confusion as the standard for infringement of geographical indication trademarks is studied.Secondly,we analyze the criteria of "similarity" as one of the factors for determining the likelihood of confusion of geographical indication trademarks.Finally,we analyzed the legal nature of the use of the common trademark "Easy Town" in the case of "Easy Town Hot and Spicy Soup" by the local people who set up stores in foreign countries.After that,we analyze the special application of these two kinds of trademark infringement standards,and clarify the infringement rules and factors of consideration for both of them respectively,by combining a large number of cases of infringement of exclusive rights of geographical indications and collective trademarks.Part Ⅳ: Restrictions on the Rights of Geographical Indication Trademarks.This part introduces the legitimate use,also known as fair use,and the conversion of geographical indication trademarks into common names in the limitation of rights of geographical indication trademarks.The former part introduces two types of fair use,namely,descriptive fair use and indicative fair use,and analyzes the situations of ordinary trademarks,and then compares them with the situations of descriptive and indicative fair use of geographical indications in judicial precedents,and points out the circumstances under which the use of geographical indication trademarks constitutes fair use,and thus does not constitute infringement of the exclusive right of geographical indication trademarks.Then it briefly elaborates on the criteria for transforming geographical indication marks into generic names and the division between geographical indication marks and generic names.This part helps to better determine whether the use of geographical indication marks constitutes infringement,and provides operational ideas for the handling of judicial practice cases,thus solving the practical dilemma of "different judgments in the same case" and providing judges with an accurate and clear applicable standard for hearing and judging cases.