(1) Geographical indications and trademarks
According to TRIPS, geographical indications “refers to the following signs: which indicate that a product originates from a member’s territory, or originates from that territory” A certain region or place, the specific quality, reputation or other characteristics of the product are mainly associated with the geographical origin. "[1] It has two characteristics: (1) Authenticity. A geographical indication must be the real name of a country, region or place, not a false or fabricated one; (2) Relevance. Geographical indication is not simply a geographical concept, it must be linked 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 designation of origin only refers to the name, while the geographical indication not only refers to the name, but can also be expressed in the form of symbols and marks. For example, the Eiffel Tower is used to represent Paris, Tiananmen is used to represent Beijing, etc.
Trademarks can be divided into general trademarks and certification trademarks. A general trademark refers to a sign used by one enterprise to distinguish the goods and services of another enterprise. This kind of trademark fully possesses the general characteristics of a trademark [2]. Among them, the most essential thing is that a general trademark has distinctiveness, making it different from other people's trademarks of the same type of goods or similar goods. Certification marks are controlled by an organization with the ability to monitor and supervise certain goods or services, and are used by people other than them on goods or services to certify the origin, raw materials, manufacturing methods, and quality of the goods or services. , precision or other quality trademarks and service marks.
(2) Geographical indication rights and trademark rights
Geographical indication rights refer to the exclusive rights enjoyed by producers of specific commodities in a certain region over their geographical indications. Trademark rights refer to the exclusive right to register a trademark enjoyed by the trademark registrant. Economic benefits can be obtained through use and transfer, especially by licensing others to use. Trademark rights can also be divided into general trademark rights and certification trademark rights. As for the subject of certification trademark rights, the author believes that it can be understood from two aspects: on the one hand, it is an organization with supervisory capabilities that controls certain goods or services; on the other hand, it is the subject using the certification mark other than the organization. The following discussion in this article focuses on the latter aspect.
(3) Protection model of geographical indication rights
Geographical indications and trademarks are both commercial signs and have many similarities in function. As scholars say: "Geography Both logos 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 to include collective trademarks and certification marks.” [3] The use of special laws to protect geographical indications “will separate the trademark and origin registration authorities, thus causing duplication of registration review work and waste of resources. For example, in determining the product category and searching whether it conflicts with prior rights It will cause inconvenience in other aspects” [4]. Therefore, in foreign countries, in addition to France, which has established an agency in the Ministry of Agriculture specifically responsible for the registration and protection of names of origin, most countries such as the United Kingdom, the United States, Canada, Australia, Germany, and Japan have also passed the "Trademark Law" to certify the validity of trademarks. It has become an international practice to protect geographical indications. After nearly 10 years of efforts, my country has initially formed a pattern of protecting geographical indications with certification trademarks. The revised Trademark Law in 2002 confirmed the protection of geographical indications by trademarks at the national legal level. Therefore, our country should respect tradition, follow the trend, integrate geographical indication rights and certification trademark rights, use certification trademarks to protect geographical indications, and give full play to the existing trademark legal system to save legal resources. This is also fully consistent with the requirements of the TRIPS Agreement.
At the same time, we should also be aware that with the new development of geographical indication protection, the requirements of rights subjects to protect their rights will become higher and higher. However, due to the stability and lag of the law, the "Trademark" It is difficult to fully protect geographical indications under the relevant provisions of the Law, so we can turn to the Anti-Unfair Competition Law. Because the "Trademark Law" and the "Anti-Unfair Competition Law" are motivated by the same goal - to protect the property rights and personal rights of enterprises and individuals over their geographical indications, and to maintain healthy economic relations, especially fair competition relations. , under the guidance of the same principle - the principle of good faith and balance of interests, they appeared with different mechanisms, different angles, and different development methods, and generated trading activities for the same object - geographical indications. Therefore, , these two systems are interdependent and inseparable.
Regardless of any one of these systems, the protection mechanism for geographical indications is imperfect. Only by comprehensively applying these two legal systems can rights holders fully protect their own interests.