the conflict between the right of geographical indications and the right of general trademark rights
Ma Xiaoli
[ Abstract] China should adopt the trademark law model, and use certification trademarks to effectively protect the right of geographical indications in a positive way. At the same time, the Anti-Unfair Competition Law is used as a supplement from the negative aspects; The conflict between the general trademark right and the geographical indication right left over from history should be examined on a case-by-case basis according to the principle of maximizing social interests under the priority right.
[ Keywords] geographical indication trademark conflict
The concurrence of intellectual property rights is a topic of considerable concern in intellectual property law circles recently, 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 concurrence of geographical indication rights and trademark rights, in order to achieve the effect of attracting jade.
I. Definition of the concept of geographical indication right and trademark right
(I) Geographical indication and trademark
According to TRIPS, geographical indication "refers to the following signs: it indicates that a commodity originated from a certain member's region, or from a certain region or place in the region, and its specific quality, reputation or other characteristics are mainly related to the geographical origin." [1] It has two characteristics: (1) Authenticity. Geographical indications must be the real name of a country, region or place, not false or fabricated; (2) Relevance. 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 the names of countries 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, for example, the Eiffel Tower represents Paris and Tiananmen Square represents Beijing.
trademarks can be divided into general trademarks and certification trademarks. A general trademark refers to a sign used by an enterprise to distinguish the goods and services of another enterprise, and this kind of trademark completely has the general characteristics of a trademark [2]. Among them, the most essential thing is that the general trademark is remarkable, which distinguishes it from the trademarks of the same kind of goods or similar goods of others. A certification trademark refers to a commodity trademark and a service trademark controlled by an organization that has the ability to monitor and supervise a commodity or service and used by people other than it to prove the origin, raw materials, manufacturing methods, quality, accuracy or other specific qualities of the commodity or service.
(II) Right of Geographical Indications and Trademark Right
Right of Geographical Indications refers to the exclusive right enjoyed by producers of specific commodities in a certain region to their geographical indications. 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 proving the 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 the certification trademark outside the organization. The following discussion focuses on the latter aspect.
(III) Protection mode of the right of geographical indications
Geographical indications and trademarks are both commercial marks, which have many similarities in function, just as scholars have said: "Geographical indications and trademarks are essentially identification marks, and their basic functions are used 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 protection. " [3] The protection of geographical indications by special law "will separate the trademark from the registration authority of origin, thus resulting in duplication of registration review and waste of resources. For example, it will cause inconvenience in determining the category of goods and searching whether it conflicts with prior rights "[4]. Therefore, in foreign countries, except France, which has set up a registration and protection agency in charge of the names of origin in the Ministry of Agriculture, most countries such as Britain, the United States, Canada, Australia, Germany and Japan have also adopted the Trademark Law to protect geographical indications in the form of certification trademarks, which has become an international practice. After nearly 1 years of efforts, China has also initially formed a pattern of protecting geographical indications with certification trademarks. The revised Trademark Law in 22 was confirmed at the national legal level to prove that trademarks protect geographical indications. Therefore, China should respect the tradition, conform to the trend, integrate the right of geographical indications and the right of certification trademarks, protect geographical indications with certification trademarks, and give full play to the role of the existing trademark legal system in order to 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 geographical indications protection, the requirements of rights holders to protect their rights will be higher and higher, and due to the stability and lag of the law, it is difficult for the relevant provisions of the Trademark Law to fully protect geographical indications, which can be turned to the Anti-Unfair Competition Law. Because the Trademark Law and the Anti-Unfair Competition Law are inspired by the same goals-safeguarding the property rights and personal rights of enterprises and individuals to their geographical indications, and maintaining healthy economic relations, especially fair competition relations, and under the guidance of the same principles-honesty and credit and the principle of interest balance, 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, and only by comprehensively applying these two legal systems can the obligee fully protect its own interests.
II. Forms and causes of conflict between the right of geographical indication and the general trademark right
(I) Forms of conflict between the right of geographical indication and the general trademark right
1. Conflict between the trademark right registered earlier and the right of geographical indication granted later by the Commodity Inspection and Quarantine Bureau. That is, a civil subject has obtained a trademark with the words or representative graphics of geographical names or their combinations 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 25th, 22, "Dong 'e Ejiao" was recognized as a mark of origin protection (geographical indication) and protected accordingly. Less than a month after the announcement was issued, Dong 'e Ejiao Group objected to this on the grounds that the announcement violated Dong 'e Ejiao Group's legal rights to the registered trademark Dong 'e Ejiao [5].
2. The conflict between general trademark right and geographical indication right (trademark right). China's Trademark Law only prohibits administrative divisions above the county level from being registered as trademarks, but does not prohibit the registration of place names below the county level as trademarks. Such a provision obviously enables the place names below the county level to be used exclusively.
For example, Meijiawu, the main producing area of Longjing tea in West Lake, can be registered as a trademark as a village. This will inevitably harm the interests of the producers and operators of related commodities in the producing area, and cause great losses to Meijiawu, the traditional producing area of Longjing tea. Moreover, if it is registered by a unit or individual outside the place of origin, and the registrant allows the market subject outside the place of origin to use it, it will confuse the source of goods and infringe on the legitimate rights and interests of consumers [6].
3. Expect the conflict between the right of geographical indication and the right of prior registered trademark. 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 in the place, and advocate that all subjects should enjoy the right of geographical indications uniformly, and this geographical indication has been registered as a trademark by others first, which leads to conflicts.
For example, Jinhua ham is a traditional specialty product of Jinhua. For thousands of years, the production area of Jinhua ham has been limited to eight counties in San Francisco, which has become synonymous with Jinhua. However, "Jinhua Ham" is registered as a trademark, and it is held by provincial food companies that do not belong to Jinhua area. Every year, nearly one million yuan of trademark royalties are collected from ham factories in Jinhua's counties and cities. Foreign manufacturers can also produce Jinhua Ham by paying the trademark royalties. Jin Hua people think that their traditional famous products and trademarks are controlled by people, and they have a long-lasting argument with the provincial food company, claiming to exercise their right to geographical indications.
(II) Reasons for the conflict between the right of geographical indications and the general trademark right
1. Basic reasons: the same right of identification marks. As a sub-right of intellectual property, the right of geographical indication and trademark right are both identification mark rights, and their object geographical indications and trademarks are marks and symbols used on 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 own geographical indications and trademarks, and want to make them realize the functions of marking product quality and distinguishing product sources to the greatest extent.
2. Intrinsic drive: containing huge economic benefits. The huge economic benefits contained in geographical indications and trademarks awaken people's awareness of intellectual property rights and highlight the potential conflicts. After thousands of years of historical accumulation, the specific commodities in a certain region have been widely recognized by the public, making them have economic value in themselves. When registering a trademark, enterprises will try to find a trademark with both intrinsic value and exogenous value. Therefore, the place name that represents a specific quality has become an excellent choice before the revision of the Trademark Law.
3. Historical legacy: before the law was changed, it was allowed, but after it was changed, it was forbidden. China's Trademark Law promulgated in 1982 did not prohibit the trademark of geographical names, so many geographical names that meet the characteristics of geographical indications were registered as trademarks. The Trademark Law, which was revised in 1993, clearly stipulates: "The geographical names of administrative divisions above the county level or foreign geographical names known to the public shall not be used as trademarks, except those with other meaning; The registered use of place names continues to be valid. " In this way, from 1982 to 1993, the trademarks of geographical names survived, resulting in conflicts with each other.
Third, the attempt to resolve the conflict between the right of geographical indication and the general trademark right
By analyzing the various reasons for the conflict between the right of geographical indication and the general trademark right, we can know that the basic reason is that geographical indication is necessary and cannot be changed; The legacy of history is the cause of history, 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 state 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 the prior rights.
We should respect the general trademark right given to enterprises by national laws to be named after geographical names, and take care of the prior rights. We should not deny it completely because it conflicts with the right to geographical indications, and become a victim of the right to geographical indications. At the same time, we should not let those trademarks that have not been well protected and utilized linger on. 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. Specifically, as shown in the following figure:
As shown in the figure, "a" means that a commodity in a region has a high quality because of its specific geographical environment, natural conditions and human factors, so that it is recognized by consumers spontaneously and widely spread when national laws do not give enterprises or subjects in the region the right to general trademarks and geographical indications. Many subjects in the region spontaneously benefit from the reputation value of their place of origin by marking the name of the place of origin of the specific commodity they produce, so that consumers can remember the place of origin. "a1" means that at some point (P) during the change of the reputation of the place of origin replaced by "a", an individual enterprise hitchhiked and registered the geographical indication as its 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 arise. After the enterprise registers the trademark, it will not only benefit itself, but also produce 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 obtains the registered trademark of Jinhua Ham, the rights of other Jinhua people to label Jinhua Ham on their hams are 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 Jinhua in the origin column of the goods, and they must meet certain requirements; On the other hand, consumers usually pay attention to the trademark of the goods first when they recognize the brand. When they see that the trademark is "Jinhua Ham", the first reaction is often that this is the kind of ham with better quality produced in Jinhua area, so they buy it. However, few consumers will look for the relatively inconspicuous 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 a becomes a2.
let's calculate the change of the total social value. Let y (the change of the total social value) = the value added by the general trademark-the value reduced by the main body in the region. Specific to the diagram, that is, y=y1y-yy2. Here, y1y and yy2 are vectors, which may be positive or negative. Y may 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 social value has decreased. According to the principle of maximizing social interests, general registered trademarks should be allowed to continue to exist when the total social value increases; When the total social value decreases, 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 department 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, for those trademarks that have produced the second meaning, there is no need to re-examine, because at this time, the geographical indications that were originally lacking in significance have become the signs for consumers to identify the source of goods through continuous use, thus having the significance.
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