Published Date:Jan.22.2022 Source： Author：Geographical indication industry network Viewed：743
Geographical indication, which is composed of "origin + commodity name", is an independent type of intellectual property rights. Datong yellow flower, Anji white tea, Jinhua ham, Korla Fragrant Pear, Helan east foot wine... These local specialties that people are familiar with have a common identity - geographical indication products. "in China, geographical indications are a kind of intellectual property that is most closely related to agriculture, rural areas and farmers." Wan Yong, director of the intellectual property law teaching and Research Office of the Law School of Renmin University of China, pointed out. According to statistics, by the end of 2021, 6562 geographical indications had been registered in China, with a related output value of more than trillion yuan. It has become a geographical symbol of regional economic development.
Protecting geographical indications is to protect the characteristics of local products
"Geographical indications are geographical names plus specific commodities, which emphasize the origin of products, and the quality, reputation and other characteristics of commodities are mainly determined by the natural or human factors of the region." Judge Si Pinhua of Beijing Intellectual Property Court told reporters.
Paying attention to the origin of goods has a long history in China. As early as the Eastern Han Dynasty, there was a naming method of "genuine medicinal materials" for Chinese herbal medicines in specific production areas. Since modern times, under the influence of French wine industry, geographical indications have gradually evolved into a worldwide intellectual property protection system, which is mainly used to protect agricultural products, food, wine, handicrafts and so on in specific production areas.
Si Pinhua said that geographical indications have local characteristics in attributes, and the specific quality, reputation or other characteristics of the goods they mark have been formed in a long history. The protection of geographical indications by law is only the confirmation of this history. "From this perspective, geographical indications are an effective carrier to promote the development of regional characteristic economy, a strong support to promote rural revitalization, and an important resource for enterprises to participate in market competition.".
Zhashui County is named for its many oak trees. Oak tree is an excellent tree species for growing Auricularia auricula. As early as more than 100 years ago, local people began to plant Auricularia auricula on oak tree. But for a long time, oak water agaric has been "raised in the boudoir, people do not know". It was not until 2000 that Auricularia Zhashui gradually opened its market and became a high-quality agricultural product with a certain popularity in Shaanxi. Fame, followed by a lot of fake and shoddy products in the market.
"In order to crack down on counterfeiting and protect the brand and quality of Zhashui agaric, we can only apply for the certification trademark of geographical indication." Li Yuan introduced that in 2012, with the efforts of the association and the local government, Zhashui agaric successfully applied for the certification trademark of geographical indications.
Auricularia auricula began to glow with great energy. In the process of poverty alleviation, Zhashui took the fungus industry as the main industry. The brand effect of Zhashui agaric is fully demonstrated, and the output has developed from hundreds of thousands of kilograms a year to nearly ten million kilograms. At present, eight local enterprises have applied for the use of the geographical indication certification trademark of Zhashui agaric. The association will provide free trademarks to local farmers' cooperatives who apply for the use of the trademark.
"The geographical indication certification trademark is exclusive and cannot be used without permission." Li Yuan said that geographical indications can more effectively protect brands, help prevent counterfeiting and shoddy, and also help prevent the abuse of the brand effect of high-quality products, "which is a good legal weapon for intellectual property rights". By strengthening the protection of geographical indication certification trademark of Zhashui agaric, Zhashui County has formulated the standards of Zhashui agaric products and technical procedures, established and improved the quality traceability, testing and integrity system of Zhashui agaric, ensured the quality of products and greatly improved its reputation.
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In dingjiaqiao Town, Jing County, Anhui Province, the birthplace of rice paper, the local government has taken many measures to help the development of rice paper industry. Shen Jizhong
Punish violations such as "free riding" of geographical indications
"Yangcheng crab doesn't taste good. Why live in Suzhou in this life". Yangcheng Lake hairy crab has the reputation of "king of crabs". After becoming a geographical indication product, the use conditions of Yangcheng Lake hairy crab name have been standardized and stand out among a wide range of crab products. However, in recent years, with the increasing market gap, from "bathing crab" to "water crab", the tricks of counterfeiting Yangcheng Lake hairy crab emerge one after another, and consumers are deeply troubled.
Si Pinhua introduced that in practice, the acts of infringing on the legitimate rights and interests of geographical indication products mainly include forging or unauthorized use of geographical indications for publicity, production and sales, and rush registration of relevant geographical indications or signs similar to geographical indications as trademarks or enterprise names. In recent years, Beijing Intellectual Property Court has heard many civil infringement cases involving geographical indications. Some geographical indication brands with obvious regional characteristics and significant agricultural benefit effect are frequently infringed, and the cases prosecuted by the industry association of origin as the defender of rights are increasing.
On December 31, 2021, the State Intellectual Property Office issued the 14th five year plan for the protection and use of geographical indications (hereinafter referred to as the plan). The plan proposes to strengthen the protection and supervision of geographical indications. For geographical indication products, high-value products, best-selling products and mutual recognition and mutual protection products in the demonstration area, strengthen the law enforcement and protection of illegal acts such as the production and sales of unauthorized use of geographical indications, and strictly standardize the use of geographical indications in marketing publicity and product packaging; Strengthen the regulation and crackdown on the free riding behavior of geographical indications such as free translation, transliteration, word translation or marking "type", "variety", "style" and "imitation" on the same or similar products.
In China, due to historical reasons, the protection of geographical indications adopts a two track system, that is, the protection mode of collective trademark, certification trademark and special law through trademark law. The latter includes the "special geographical indications" system established by the State Intellectual Property Office and the "special geographical indications of agricultural products" system established by the Ministry of agriculture and rural areas.
Wan Yong said that the coexistence of trademark law protection and special law protection will lead to the application for different geographical indication registration protection for the same product, which may have different obligees, and will also lead to duplication of registration review and waste of administrative resources.
It is understood that 47 of the 60 major countries and regions surveyed by the agricultural intellectual property research center of the Chinese Academy of Agricultural Sciences implemented special laws for protection. "Geographical indications are the crystallization of the collective culture and wisdom of a region. It is very important to ensure that the products using geographical indications meet the relevant quality standards. The function of trademarks is mainly to indicate the source and prevent confusion among consumers, and the function of quality assurance is not its main function." Wan Yong suggested reforming the protection system of geographical indications, formulating special administrative regulations on geographical indications, clarifying the responsibilities of geographical indication management organs and improving the protection procedures of geographical indications. It is worth noting that the plan also proposes to actively promote the special legislation of geographical indications and improve the unified geographical indication protection system of mutual coordination between special protection and trademark protection.
Beware of using geographical indications to "touch porcelain" for profit
Just because the word "Tongguan" was in front of the word "roujiamo" on the signboard, he became the defendant inexplicably. At the end of 2021, merchants of some snack bars in Luoyang, Henan Province "put up a stall" one after another.
Fortunately, after the trademark dispute was exposed by the media and the intervention of relevant departments, Tongguan roujiamo Association issued a letter of apology, and many trademark infringement cases filed by the association have been withdrawn one after another. The storm ended, but the problems behind it were thought-provoking.
It is understood that "Tongguan roujiamo" is a geographical indication registered as a collective trademark. Is it legitimate for Tongguan rougamo association to protect rights everywhere? "The legal geographical indication obligee obviously has the right to prohibit merchants outside the territory from using their geographical indications without authorization. However, it can not simply use geographical indications to coerce others to pay the so-called 'membership fees'." Wan Yong pointed out that geographical indications can prove the inevitable link between specific commodities and origin. From the raw materials used in Tongguan rougamo, it seems that it is not because of the specific quality of rougamo created by "Tongguan".
Geographical indications belong to regional public resources, and the registrants of collective trademarks of geographical indications shall be local non-profit groups, associations or other organizations. When answering a reporter's question, the person in charge of the third people's Court of the Supreme People's Court pointed out that there is no basis in the trademark law for individual associations and organizations to use geographical indication collective trademarks to obtain franchise fees. If they file a lawsuit to the people's court to collect franchise fees, the people's court will not support them according to law.
"According to relevant reports, many of the acts warned, accused and prosecuted by trademark owners are actually the legitimate use of geographical indications. The 'porcelain touch protection of rights' in this incident deviates from the purpose of the intellectual property system to promote innovation and fair competition." Huang Ji, a researcher at the Intellectual Property Research Institute of Southwest University of political science and law, said that many defendants are small businesses and small and micro enterprises, which are difficult to confront malicious litigants and are prone to a mentality of "spending money to buy peace". He suggested that the industry association could give the majority of operators a stronger confidence to say "no" to those who touch porcelain by issuing early warning information, providing consultation and guidance, and taking the lead in "group" rights protection.
In view of the phenomenon of using geographical indications to "touch porcelain" litigation, Si Pinhua believes that intellectual property education should be strengthened to enable the subjects who have the right to use geographical indications to exercise their rights according to law and regulations; Strengthen the management of agency agencies that are still acting knowing or should know that the obligee abuses his rights, and strengthen the punishment of relevant subjects of dishonest litigation.
At present, many geographical indication brands lack personality and are difficult to show product characteristics; The product quality system of some geographical indications is not perfect, the production standards are not unified, and the use methods of marks are inconsistent, which restricts the recognition and credibility of geographical indications. Huang Ji believes that in daily operation and management, multiple subjects need to jointly maintain the brand value of geographical indications. Government departments can deeply tap and cultivate "famous, special, excellent, new and rare" geographical indication resources to promote the "dislocation competition" of different geographical indications; The trade association may promulgate the production procedures of geographical indication products to ensure the stability of product quality; Build a quality traceability system from farm to table to enhance the market's trust in geographical indication brands. In this way, geographical indications can give play to the golden power of "protecting a product, driving a group of enterprises, strengthening an industry, enriching the people and promoting the development of one party".
