Q: "Authentic medicinal materials" refer to certain medicinal biological species, which are high-quality and effective Chinese medicinal materials formed under the combined effects of specific environmental and climate factors. Due to the influence of the natural geographical environment, its quality and efficacy have high credibility and popularity, and are loved by consumers. However, due to various reasons, some "authentic medicinal materials" have been predatoryly collected, and counterfeit products also appear on the market from time to time. I would like to ask: In the current environment, how to strengthen the protection of the intellectual property rights of "authentic medicinal materials"? ——Reader

Answer: The author believes that the best way to protect "authentic medicinal materials" is to use the relevant rules of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and include them in geographical indications ( geographical ind-ication) protection.

The TRIPS Agreement is a sub-agreement under the World Trade Organization Agreement, in which the protection of intellectual property rights plays a particularly important role in international and domestic trade. The TRIPS Agreement defines geographical indications as: indicating that a commodity originates from a certain member region of the World Trade Organization, or from a certain region or place in the region, and the specific quality, reputation or other characteristics of the commodity are mainly attributed to Because of its geographical origin.

The principle of geographical indication protection mainly focuses on the "prohibition" to prevent the improper use of geographical names and indications. The agreement mainly points out four types of unfair use and corresponding remedies: First, using geographical indications of untrue places of origin in the names or descriptions of goods, thereby causing the public to misunderstand the place of origin of the goods. It is believed that the use of the origin of products should be stopped by legal means; the second is the use of geographical indications in a way that may constitute unfair competition. In this regard, the agreement requires that it be stopped in accordance with the relevant provisions of the 1967 Paris Convention; the third is useless If the geographical indication indicated by the commodity mark is used as a trademark, thus misleading the public to identify the true origin of the commodity, the authorities of the member party shall reject the registration application for the trademark or revoke the registration of the trademark according to the right or at the request of the party concerned; fourth, use Certain geographical indications that, although the geographical indication truly indicates the origin of the goods, still mislead the public into thinking that the goods originate from another region should also be prohibited. Article 24 of the Agreement stipulates some exceptions, including prior use, prior registration of trademarks, common names, protection of the country of origin, etc. If a geographical indication is not protected or ceases to be protected in the country of origin, or the use of the geographical indication is stopped in the country of origin, members have no obligation to protect this geographical indication. This is the yellow babbler under the protection of geographical indications. The foreign protection depends on the continued domestic protection.

The TRIPS Agreement does not clearly stipulate the protection model of geographical indications. Countries around the world mainly adopt four modes of legislative protection for geographical indications: anti-unfair competition law, trademark law, special legislation and mixed legislation. In my country, geographical indication protection can be obtained in three ways: applying for collective trademarks or certification marks, product protection for regions of origin, and protection for marks of origin. For example, Jiangyin Tianjiang Pharmaceutical Co., Ltd. registered a mark of origin for Chinese medicine formula granules, becoming the first unit in the traditional Chinese medicine industry to obtain mark of origin protection. Therefore, the author believes that the protection of “geographical indications” is an effective measure to strengthen the protection of traditional Chinese medicine resources, especially the protection of intellectual property rights of “authentic medicinal materials”. China University of Political Science and Law School of Law Jiang Xinning (Jiang Xinning)