The right conflict between the right of geographical indication and the general trademark right.
Ma Xiaoli
Abstract: China should adopt the mode of trademark law and effectively protect the right of geographical indications by using certification trademarks. At the same time, from the negative side, the Anti-Unfair Competition Law is used as a supplement; The conflict between the general trademark right and the right of geographical indications left over from history should be examined case by case according to the principle of maximizing social interests under priority.
[Keywords:] geographical indication trademark conflict
The concurrence of intellectual property rights is a topic of considerable concern in intellectual property law circles in recent years, and the discussion on the relationship between geographical indication rights and trademark rights as their sub-rights still needs to be deepened. This paper intends to express my views on the increasingly prominent competition between geographical indication rights and trademark rights, in order to achieve the effect of attracting jade.
First, the definition of the concept of geographical indication right and trademark right
(1) Geographical indications and trademarks
According to the provisions of TRIPS, geographical indications "refer to the following signs: indicating that a commodity originated in the territory of a member or a region or place within the territory, and that the specific quality, reputation or other characteristics of the commodity are mainly related to the geographical origin." [1] It has two characteristics: (1) authenticity. Geographical indications must be the real names of countries, regions or places, and shall not be false or fabricated; (2) correlation. Geographical indication is not a simple geographical concept, it must be related to the quality, reputation and other characteristics of a specific product.
It is worth noting that geographical indications are different from names of origin. The name of the place of origin only refers to the name, and geographical indications can be expressed in the form of symbols and marks besides the name, such as the Eiffel Tower for Paris and Tiananmen Square for Beijing.
Trademarks can be divided into general trademarks and certification trademarks. A generic trademark refers to a symbol used by an enterprise to distinguish the goods and services of another enterprise, which has the general characteristics of a trademark [2]. Among them, the most essential thing is the distinctiveness of generic trademarks, which distinguishes them from other people's trademarks of similar goods or similar goods. A certification trademark refers to a commodity trademark and a service trademark controlled by an organization that has the ability to monitor and supervise goods or services and used by people other than it to prove the origin, raw materials, manufacturing methods, quality, accuracy or other specific qualities of the goods or services.
(two) the right to geographical indications and trademark rights
The right of geographical indications refers to the exclusive right enjoyed by the producers of specific commodities to their geographical indications in a certain area. Trademark right refers to the exclusive right to use a registered trademark enjoyed by a trademark registrant. Economic benefits can be obtained through the use and transfer, especially by licensing others to use it. Trademark rights can also be divided into general trademark rights and certification trademark rights. As for the subject of proof of trademark right, the author thinks it can be understood from two aspects: on the one hand, it is an organization with supervision ability that controls a certain commodity or service; On the other hand, it is the subject who uses certification marks outside the organization. The following discussion focuses on the latter aspect.
(C) the protection mode of the right to geographical indications
Geographical indications and trademarks are both commercial marks, and there are many similarities in their functions. As scholars have said, "Geographical indications and trademarks are essentially identification marks, and their basic functions are to distinguish the source of goods. Therefore, modern trademarks often broaden the types of trademark protection and include collective trademarks and certification trademarks in their scope of protection. " [3] The Special Law on the Protection of Geographical Indications separates trademarks from the registration authority of origin, resulting in repeated registration review and waste of resources. For example, it will cause inconvenience when determining the category of goods and whether retrieval conflicts with prior rights "[4]. Therefore, in foreign countries, except for France, which has set up a registration and protection agency in charge of the name of origin in the Ministry of Agriculture, most countries such as Britain, the United States, Canada, Australia, Germany and Japan have also adopted trademark laws to protect geographical indications in the form of certification trademarks, which has become an international practice. After nearly 10 years of efforts, China has also initially formed a pattern of protecting geographical indications with certification trademarks. The Trademark Law revised in 2002 was confirmed at the national legal level, which proved that trademarks protected geographical indications. Therefore, China should respect the tradition, conform to the trend, integrate the right of geographical indications and the right to prove trademarks, so as to prove that trademarks protect geographical indications, give full play to the role of the existing trademark legal system and save legal resources. This is also in full compliance with the requirements of the TRIPS Agreement.
At the same time, we should also realize that with the new development of the protection of geographical indications, the requirements of the right subject to protect their rights will be higher and higher, and because of the stability and lag of the law, it is difficult for the relevant provisions of the trademark law to fully protect geographical indications, so we can turn to the anti-unfair competition law. Because the Trademark Law and the Anti-Unfair Competition Law both aim at the same goal-safeguarding the property rights and personal rights of enterprises and individuals to their geographical indications, and maintaining healthy economic relations, especially fair competition relations. Under the guidance of the same principles-the principle of good faith and the principle of balance of interests, they appear in different mechanisms, different perspectives and different ways of development, aiming at the same object. Aside from any of these systems, the protection mechanism of geographical indications is not perfect. Only by comprehensively applying these two legal systems can the obligee fully protect his own interests.
Secondly, the forms and reasons of the conflict between the right of geographical indications and the general trademark right.
(A) the manifestation of the conflict between the right of geographical indications and the general trademark right
1. The conflict between the previously registered trademark right and the geographical indication right granted by the commodity inspection bureau later. That is, the civil subject has obtained a trademark with the characters or representative graphics of place names or their combination as the constituent elements. Then, the General Administration of Quality Supervision, Inspection and Quarantine accepted the application for the protection of geographical indications of products in this area, resulting in a dispute between the two rights.
For example, on February 25, 2002, "Dong 'e Ejiao" was recognized as a geographical indication of origin protection and was protected accordingly. Less than a month after the announcement, Dong 'e Ejiao Group objected to this on the grounds that the announcement violated the legitimate rights of Dong 'e Ejiao Group to the registered trademark of Dong 'e Ejiao [5].
2. The conflict between general trademark right and geographical indication right (proof of trademark right). China's trademark law only prohibits administrative divisions above the county level from being registered as trademarks, but does not prohibit place names below the county level from being registered as trademarks. Such a provision obviously enables the names below the county level to be dedicated.
For example, meijiawu, the main producing area of Longjing tea in West Lake, can be used as a registered trademark of a village. This will inevitably harm the interests of producers and operators of related commodities in the producing areas and cause huge losses to meijiawu, a traditional producing area of Longjing tea. Moreover, if it is registered by a unit or individual outside the country of origin, the registrant will allow the market subject outside the country of origin to use it, which will confuse the source of the goods and infringe on the legitimate rights and interests of consumers [6].
3. Looking forward to the conflict between the right of geographical indications and the prior registered trademark right. That is to say, many subjects in a certain area think that the specific quality, reputation or other characteristics of a commodity mainly depend on the geographical environment, natural conditions, cultural background and other factors, and advocate that all subjects should enjoy the rights of geographical indications uniformly, and this geographical indication has been registered as a trademark by others first, thus causing conflicts.
Jinhua ham, for example, is a traditional specialty of Jinhua. For thousands of years, the origin of Jinhua ham has been limited to eight counties in San Francisco and has become synonymous with Jinhua. However, "Jinhua Ham" is registered as a trademark and held by a provincial food company that does not belong to Jinhua. Every year, nearly one million yuan of trademark use fees are collected from ham factories in Jinhua counties and cities. Foreign manufacturers can also produce Jinhua ham by paying trademark royalties. Jin Hua people think that their traditional famous products and trademarks are controlled by people, and they have a protracted argument with the provincial food company, claiming to exercise the right of geographical indications.
(two) the reasons for the conflict between the right of geographical indications and the general trademark right.
1. Basic reason: identification with the same right. As a sub-right of intellectual property rights, the right of geographical indications and the right of trademark are both the right of identification marks, and their object geographical indications and trademarks are marks and symbols used in products or services, which play an advertising role for consumers and are easily confused in visual effects. This makes all market participants attach great importance to their geographical indications and trademarks, and want them to realize the function of marking product quality and distinguishing product sources to the greatest extent.
2. Intrinsic drive: It contains huge economic benefits. The huge economic benefits contained in geographical indications and trademarks awaken people's awareness of intellectual property rights, and also highlight potential conflicts. After thousands of years of historical accumulation, the specific commodities in a certain area have been widely recognized by the public, making them have economic value. When registering a trademark, an enterprise will try its best to find a trademark with both intrinsic value and extrinsic value. Therefore, before the revision of the Trademark Law, place names representing specific qualities became an excellent choice.
3. Historical issues: the law was changed before it was allowed and changed after it was banned. The Trademark Law promulgated by China 1982 does not prohibit the trademark of geographical names, so many geographical names that meet the characteristics of geographical indications are registered as trademarks. 1993 The revised Trademark Law clearly stipulates: "The place names of administrative divisions at or above the county level or foreign places known to the public shall not be used as trademarks, except those with other meaning; The registration and use of place names will continue to be valid. " In this way, the place name trademarks of 1982 to 1993 survived, resulting in conflicts with each other.
Third, try to solve the conflict between the right of geographical indications and the general trademark right.
By analyzing the various reasons for the conflict between the right of geographical indications and the general trademark right, we can know that the basic reason is that geographical indications are necessary and cannot be changed; The legacy of history is a historical reason, and it will not happen again in the future. Therefore, in order to solve the conflict between the right of geographical indications and the general trademark right, we can only cut into the internal driving reasons of the two and determine the direction of interests through national regulation. In addition, to solve this problem, we should also determine a basic principle according to a certain value orientation. The author believes that a possible and reasonable value orientation should be the principle of maximizing social interests under priority rights.
We should respect the general trademark right given to enterprises by national laws to be named after place names, and take care of prior rights. Just because it conflicts with the right of geographical indications and becomes a victim of the right of geographical indications, it cannot be completely denied. At the same time, we can't let those trademarks that have not been well protected and utilized linger. Instead, we should adhere to the principle of maximizing social interests and compare the added value of trademarks with their externalities to determine which rights should be given priority. Specific as shown in the figure below:
As shown in the figure, "a0" means that a commodity in a certain area has a high quality because of its specific geographical environment, natural conditions and human factors, so it is spontaneously recognized and widely spread by consumers when the national laws do not give the enterprises or subjects in this area general trademark rights and geographical indications rights. Many subjects in the region spontaneously make consumers remember the place of origin by marking the name of the place of origin of the specific goods they produce, thus benefiting from the reputation value of their place of origin. "a 1" refers to a certain point (P) in the changing process of the reputation of origin being replaced by "a0". Individual enterprises hitchhike to register the geographical indication as their own trademark, which is equivalent to stepping on the shoulders of all people in the region and continuing to use and create the intangible assets of the geographical indication. In this way, the following problems will appear. After registering a trademark, an enterprise not only benefits itself, but also produces externalities. This externality is to affect the interests of other subjects in the region. Take Jinhua ham as an example. On the one hand, when the provincial food company obtained the registered trademark of Jinhua Ham, the rights of other Jinhua people to mark Jinhua Ham on their hams were restricted. They can't use "Jinhua Ham" as a trademark, and they can't mark "Jinhua Ham" on the package casually, because it is easy to confuse the so-called consumers and is suspected of unfair competition. At this time, they can only indicate the origin of the goods as Jinhua in the column of origin, and must meet certain requirements; On the other hand, when consumers identify brands, they usually pay attention to the trademarks of goods first. When they saw the trademark "Jinhua Ham", their first reaction was that it was the kind of ham with better quality produced in Jinhua area, so they bought it. But few consumers will look for a relatively humble place of origin without looking at the trademark: Jinhua, Zhejiang. Unless you choose from hams that are not marked "Jinhua Ham", it is possible to distinguish them according to the place of origin. In this way, the original a0 becomes a2.
Let's calculate the change of the total social value. Let y (the change of the total social value) = the value increased by the general trademark-the value decreased by the main body in the region. Specific to the figure, that is, y=y 1y0-y0y2. Here y 1y0 and y0y2 are vectors, which can be positive or negative. Y can be greater than zero or less than zero. If it is greater than zero, it means that the total social value has increased; On the contrary, it means that the total value of society has decreased. According to the principle of maximizing social interests, when the total social value increases, general registered trademarks should be allowed to continue to exist; When the total social value drops, we should cancel the general trademark and replace it with proof that the trademark protects the interests of many subjects in the region. Of course, for general trademarks that are allowed to continue to exist, the competent authorities should re-examine the situation of Y at each renewal, so as to correctly assess the situation and make a scientific and reasonable decision. In addition, there is no need to re-examine those trademarks that have produced the second meaning, because at this time, the geographical indications that were originally lacking in distinctiveness have become the signs for consumers to identify the source of goods through continuous use, thus having distinctiveness.
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