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Experts jointly discussed "the protection of the rights of geographical indications and the protection of consumers' interests"

Published Date:Mar.16.2022    Source:    Author:Geographical indication industry network  Viewed:781

On the occasion of the international consumer rights day on March 15, Beijing geographical indication industry association and Beijing Nongzhi geographical indication Research Institute jointly held the first theme Salon of "British painting of landmarks" on March 4, with more than 20 experts from government departments, industry associations, scientific research institutions, media, e-commerce, agencies and geographical indication stakeholders, Focusing on the theme of this issue, "the protection of the rights of geographical indications and the protection of consumers' interests", this paper makes an in-depth discussion, and makes suggestions for the protection of geographical indications and the protection of consumers' interests.

1、 Current situation and problems of geographical indication protection

Ma Xiang, deputy director of Intellectual Property Committee of all China Lawyers Association and senior partner of Beijing Tianchi Juntai law firm

Lawyer Ma Xiang, deputy director of intellectual property professional committee of all China Lawyers Association and senior partner of Beijing Tianchi Juntai law firm, systematically introduced the current situation of geographical indication protection in China. He reviewed the judicial protection process of geographical indication trademark rights protection in China, and analyzed some problems in rights protection cases, such as inconsistent judgment standards of the court, wrong guidance of public opinion, misunderstanding of social cognition and so on. He believes that the geographical indication rights protection cases have the characteristics of legitimacy, universality and regularity, which determines that the geographical indication trademark rights protection often forms the illusion of excessive rights protection. He gave the principle of infringement determination: if it cannot provide evidence to prove that it is produced in a specific region of geographical indications, use geographical indication trademarks to determine infringement; If the goods sold are indeed produced in a specific region of geographical indications, but the quality of the goods does not meet the requirements, infringement shall be recognized; The goods sold are indeed produced in a specific region of geographical indications, and the quality of the goods also meets the requirements. However, if the Chinese part of the landmark, i.e. place name + common name, is used, infringement shall be recognized. He stressed that geographical indications have a strong public attribute and are of positive significance to social and economic development and the creation of a better life for the people. Therefore, more strict judicial judgment standards should be adopted for the infringement of geographical indications. He called on the intellectual property administrative law enforcement departments to strengthen administrative law enforcement, give full play to the public interest litigation function of the people's Procuratorate, and strengthen the protection of geographical indication trademarks.

Yang Yonggang, President of Beijing geographical indication industry association and President of Beijing Nongzhi geographical indication Research Institute

Yang Yonggang, President of Beijing geographical indication industry association and President of Beijing Nongzhi geographical indication Research Institute, analyzed the significance of geographical indications in combination with the trademark dispute of Tongguan roujiamo. He said that the Tongguan roujiamo incident was complex, so we had a clear understanding of the origin and destination of the case, and basically made clear most of China's geographical indication system. On the surface, geographical indications may not be significant. For example, at first glance, Pinggu Datao is preceded by place names and followed by general names, which seems to be insignificant. However, when applying for the registration of geographical indication trademarks, a large amount of hardware is needed, that is, historical records. Historical data is a kind of evidence. Historical evidence documents are used to prove that geographical indications have achieved high significance after long-term use. If there are accurate and qualified records in historical materials, it will reach a well-known level and a high significance to some extent. In addition, with regard to the uniqueness of geographical indications, for example, Tongguan rougamo can only be called Tongguan rougamo if it is made in the specific regional environment of Tongguan with the unique pork, flour and technology produced in Tongguan.

Zhang Yuemei, founder of Yuemei studio and senior trademark expert, believes that geographical indications must make consumers clearly feel that the obligee's products are different and have unique quality. We should also pay attention to the difference between geographical indications and general product names. If it has degenerated into a common product name in many years of inheritance, it should not be registered as geographical indications. For geographical indications, it is reasonable to take appropriate rights protection measures. If not, it is unreasonable to protect rights.

2、 Measures and puzzles of safeguarding the rights of geographical indication obligees

Gong Cheng, chairman of Beijing successful fruit and vegetable production and marketing cooperative and chairman of Pinggu Datao cooperative

Gong Cheng, chairman of Beijing successful fruit and vegetable production and marketing cooperative and chairman of Pinggu big peach cooperative, shared some practices and puzzles in the protection and application of Pinggu big peach. The formation of the specific quality of Pinggu peach comes from the unique water quality, soil and so on. In order to maintain the uniqueness of product quality and safeguard the interests of consumers, Pinggu Dadao obligee has formulated some technical standards and inspection measures. In order to prevent Pinggu peach from being infringed and counterfeited, strict requirements have been made in terms of authorization review, labeling of product trademarks, pollution-free certification, labeling of geographical indications, etc., and bar codes have been prepared for traceability. He believes that in the practice of geographical indication protection, there are still problems to be solved, such as the quality assurance of different authorized subjects, the difficulty of cross regional rights protection, the coordination of geographical indication protection system, consumer infringement proof and so on.

Pan Wei, director of intellectual property protection division of Beijing Intellectual Property Office

Pan Wei, director of the intellectual property protection department of Beijing Intellectual Property Office, believes that no matter what kind of protection system, as long as it is certified, it means that all indicators of the product, such as sweetness, skin and pulp, have been tested by corresponding institutions according to corresponding standards. Because there is already a standard, when enterprises join the ranks of use and mark geographical indications on products, it means that they have met the standard. She suggested that we can cooperate with anti-counterfeiting professional institutions to establish a set of traceability system to facilitate consumers to query product related information.

Zhang Nuo, deputy director of brand protection of JD group, is more concerned about the quality assurance of geographical indication products. She raised questions: for geographical indications such as Pinggu Datao, in addition to the geographical indication trademark certificate, how to describe the characteristics of products to consumers, whether there is a written rigid standard for product quality or something similar to quality inspection report, and whether there is a service system.

3、 How to coordinate the conflict between public resources and private rights in the protection of geographical indications

Xiong Wencong, associate professor of Law School of Central University for Nationalities

Xiong Wencong, associate professor of Law School of Central University for nationalities, shared the conflict and coordination between public resources and private rights in the protection of geographical indications. He believes that geographical indications can be registered as certification trademarks or collective trademarks, and the functions of geographical indications are the same as trademarks, that is, they all indicate the quality or reputation of goods. Therefore, users can apply the relevant rules in the trademark law, such as Article 59 of the trademark law, to defend and claim that they are the legitimate and reasonable use of geographical indications. He specifically analyzed several situations belonging to "legitimate and reasonable use", and put forward the conditions required to constitute legitimate and reasonable use: first, the use of the same or similar signs does not indicate the quality or reputation of the goods, but describes an inherent characteristic of their own goods (such as origin); Second, it is used in good faith, and there is no subjective intention of taking a ride on quality and reputation; Third, objectively, it will not lead to confusion and misunderstanding of commodity quality or reputation by the relevant public. He believes that there is almost no "proper and reasonable use" of geographical indications. The exclusivity of the exclusive right to use geographical indications is very strong. For this reason, the registration examination of a geographical indication must be very strict. The applicant must fully prove that the geographical indication applied for registration must meet the requirements of long-term use, which is generally recognized by consumers, and its products are natural and always closely related to geographical factors and cannot be copied, Specific quality and other elements that are obviously different from other similar commodities. He believes that there is no irreconcilable contradiction or conflict between the protection of private rights and public interests. On the contrary, they complement each other and act opposite to each other. Because the protection of private rights is not only to protect the personal interests of a private subject, but to make each private subject more motivated to create more wealth for the society and enable consumers and the public to obtain more benefits. The key lies not in the abuse of private rights, but in the classification of what originally belongs to the public sphere into the category of private rights, and in the ambiguity and swing of the boundary of private rights. Therefore, delimiting the boundary of property rights, reducing transaction costs and fully and strictly protecting private rights can maximize public interests.

Director Pan Wei believes that the review of the use of geographical indications should really take into account the public interest. The key to the protection of geographical indication products should be from which angle and what aspects should be considered in coordination. Geographical indications are composed of place names and product names, which naturally makes people feel that they can be used properly. In judicial practice, different courts have different views on proper use. In the recent case of Aksu apple, the court held that the case involved a geographical indication certification trademark. Although the defendant did not ask Aksu Apple Association to use the certification trademark, Aksu Apple Association, as the registrant of the trademark, cannot deprive natural persons, legal persons or other organizations whose goods are actually produced in Aksu region of the right to use the place names in the certification trademark.

Lawyer Ma Xiang stressed that some infringers try to evade tort liability through proper use. Geographical indication trademark is composed of place names and common names. Both place names and common names can be used properly. There are many restrictions on the exercise of the rights of the obligee of geographical indication trademark. But, Legitimate use is not the direct use of "geographical indication trademark" ", refers to the use of place names only in the meaning of place names, pointing to the area of the place names, rather than any goods. Legitimate use must be used in good faith and in accordance with business practices; legitimate use cannot be used in the form of trademarks and can not play the role of indicating the place of origin and the special product quality of the place of origin; trademarks that can be used properly must be used in a proper way to protect the legitimacy of geographical indications.

4、 How to protect the rights and interests of consumers in the process of production and marketing

According to the relevant person in charge of JD group, JD is very concerned about the product quality sold on the platform, and the governance of various infringement issues is also very strict. The platform tries to build the governance link of geographical indication commodities from the audit and settlement of the platform to the later stage into a systematic process, forming a complete set of system from pre audit to post rights protection. However, some practical problems are often encountered in the management of geographical indication businesses and commodities. For example, when checking the qualification and authorization of geographical indication products, there is a lack of official channels to verify the authenticity of authorization qualification in terms of right confirmation; The traceability of landmark goods; The identification ability of the obligee to the commodity itself during rights protection or sampling inspection of the platform. Therefore, the landmark obligee should also establish the whole chain from quality control to traceability. At the same time, consumers also lack a clear understanding of geographical indication goods, and even have some misunderstandings about landmark goods in the process of purchase. Therefore, consumer guidance also needs to strengthen the publicity and guidance of geographical indications related knowledge.

Xue Yinghui, legal manager of Beijing xiaocan Tea Co., Ltd., believes that the quality control technology and data of the whole geographical indication products are not only the problems of JD and enterprises, but also some problems that will exist in various geographical indication associations or governments. Small pot tea has some technical and data measures for commodity traceability or consumer mental guidance, but in the process of promotion and use of these measures, more senior industry experts in the association need to jointly discuss and guide how to use them reasonably.

Zhai Yuqiang, director of the publicity, education and popularization base of famous, high-quality and local products of Luoyang Institute of technology, believes that when consumers enter businesses, they generally recognize geographical indications and ignore quality judgment. Sales businesses should do a good job in the control of geographical indication products. He also took Maotai liquor as an example and talked about that geographical indications should be valued by the government and enterprises. They should invest funds to protect their own interests, carefully authorize and maintain the brand reputation of geographical indications. In addition, we should also pay attention to the use of geographical indications. We should not let it go after registration. We should strengthen publicity and actively promote the use of geographical indication trademarks.

President Yang Yonggang responded to the inquiry about the authorization of geographical indication trademarks and products. Beijing Nongzhi Institute of geographical indications has compiled and developed a large database of geographical indications for use and reference by courts, administrative organs and relevant institutions in case review, subject research, data analysis, investigation and application. The database of the research institute can provide relevant query services for enterprises. In addition, he also introduced the situation of Beijing geographical indication industry association and Beijing Nongzhi geographical indication Research Institute. Founded in November 2019, the association is an independent social organization registered and managed by Beijing Civil Affairs Bureau. The Institute was established in October 2019. The business competent unit is Beijing Intellectual Property Office. It is the only professional social organization for geographical indication research in China. The association and the research institute are now jointly working and undertaking the key soft science projects of the State Intellectual Property Office. They have made remarkable achievements in public welfare classroom, fixed-point training, subject projects, participation in legislation, standard formulation, book publishing, rural revitalization, forum activities, research activities, data application, Party Construction, etc. He hopes to give full play to the professional advantages of the association and the Research Institute and provide more services for the protection of geographical indication rights and the protection of consumers' interests.

Li Changzhi, Executive Deputy Secretary General of Beijing geographical indication industry association and executive vice president of Beijing Nongzhi geographical indication Research Institute

The event was presided over by Li Changzhi, Executive Deputy Secretary General of Beijing geographical indication industry association and executive vice president of Beijing Nongzhi geographical indication research. He said that the protection of geographical indications is a professional issue that needs professional discussion and guidance. The association and the research institute hold a series of theme salons of "British painting of landmarks", which is to build a professional discussion platform and give everyone the opportunity to discuss some difficult and hot issues of geographical indications. He stressed that this series of salons is a regular public welfare and Open Salon. He hoped that more experts would participate and put forward better topics for discussion