Research On Judgment Of Trademark Infringement Of Geographical Indication Proof

In recent years,more and more geographical indications are protected by trademark law system by applying for registration of geographical indications as proof trademarks.Common geographical indications prove that trademarks are composed of "geographical name + commodity generic name".Due to the weak significance of constituent elements,but high economic and social value,such trademarks are easy to be abused by unscrupulous merchants,thus weakening the relationship between specific quality,reputation and origin of products.As a kind of special trademark,geographical indication certification trademark has both special attributes of geographical indication and certification trademark.Therefore,before solving the problem of infringement judgment,it is necessary to clearly and accurately grasp the concept and scope of rights of geographical indication certification trademark,and realize that ordinary trademark infringement recognition ideas and judgment factors cannot be directly applied in the case of geographical indication certification trademark infringement.Geographical indication proof trademark makes it easy for the court to have different cognition in the judgment of this kind of trademark infringement cases due to its own particularity.However,our current legislation does not reflect the particularity of geographical indication proof trademark in the judgment of tort.This leads the court to produce some prominent disputes in the judgment of geographical indication proof in judicial practice.It includes "confusion" or "misrecognition",different recognition standards for trademark approximation,unclear definition of fair use and unclear distribution of burden of proof.Therefore,in judicial practice,the phenomenon of the same case and different sentences has become commonplace.Based on this,this article on the basis of fully considering the particularity of geographical indication marks related judicial cases in recent years,through research on the existing trademark law system model the countries outside of the law and the classic case,and absorb the latest "management measures for the protection and collective trademarks and certification trademarks(draft)" the relevant provisions,This paper puts forward some suggestions to improve the judgment of trademark infringement of Chinese geographical indications.On the basis of analyzing the particularity of geographical indication proof trademark from the perspective of its constituent elements and scope of rights,combining with relevant case studies to clarify that special infringement judgment criteria should be applied to trademark infringement cases involving geographical indication proof trademark,and expanding the concept of confusion on the basis of the current "confusion" infringement judgment standard applied to trademarks.To cover misconceptions about the origin of products and specific qualities.Through the current relevant laws and regulations and the concept and constituent elements of the geographical indication certification trademark,it is clear that the core element or main identification part of the geographical indication certification trademark is the geographical indication part,among which the geographical indication text part is the key factor of the trademark approximation judgment.In combination with our country’s current law,the trademark reasonable use of relevant theories and judicial case on the basis of the typical model the countries outside of the law,the components of the formation of place names descriptive fair use,at the same time clear the producers or marketers of unauthorized products conform to the conditions of use,can’t complete use of trademark,but shall have the right to use trademarks with the words of geographical indication.Using the basic standard of burden of proof and the principle of fairness,it is clear that the burden of proof borne by the plaintiff is to prove the tort and the damage consequences caused by the defendant,and the defendant,as a producer and a seller,should discuss the burden of proof borne by the legal source and reasonable use as the defense.