【Law Course】

　　Previously, trademark cases such as "Xiaoyao Town Hu Spicy Soup", "Tongguan Roujiamo", "Qinghuajiao Fish Hotpot" and "Honeysuckle Flower Dew Water" frequently appeared on the Internet, causing social attention and discussion. The State Intellectual Property Office and the Supreme People's Court It has responded and answered relevant questions successively, which can be described as a rare open class on trademark law popularization.

"Distinctiveness" of a Trademark

　　Trademarks are a common type of symbols in life, but many people do not understand their specific connotations, functional uses and rights boundaries.

Many people simply believe that "green pepper" is the name of a plant fruit or vegetable seasoning, which should not be registered as a trademark, and should not be used to prohibit other operators from using it.

　　However, a trademark is not simply a symbolic sign itself, but a sign that refers to and corresponds to the source of a particular good or service.

It is this reference and correspondence that limits the scope of protection of trademark rights and determines that it is impossible for trademark owners to monopolize all uses of the same symbol.

　　In other words, as a symbol mark, if "green pepper" refers to a certain plant fruit or vegetable seasoning, it constitutes a generic name and should not be registered as a trademark in the product category of "seasoning", but this does not It means that "green pepper" cannot refer to a certain restaurant or a certain car.

　　To judge whether a certain symbol can be registered as a trademark, the core element is "distinctness".

The so-called "distinctness" refers to the distance and distance between the primary meaning of a symbol in a specific business context and the usual meaning of a certain type of goods or services in the eyes of the relevant public.

The farther the two are, the stronger the salience, and vice versa.

According to the provisions of the second paragraph of Article 11 of the current Trademark Law, those that only directly represent the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods shall not be registered as trademarks.

Even if the registration is successful, it can be declared invalid due to lack of distinctiveness.

　　As far as the "green pepper" logo applied for registration in the catering service category is concerned, first of all, it is not a common name for the catering industry; secondly, as a Sichuan cuisine seasoning name, it is difficult to constitute the main raw material for catering services; finally, Whether it only directly expresses the "other characteristics" of catering services has certain flexibility and subjectivity, and should be comprehensively judged by the State Intellectual Property Office and the people's court based on the evidence provided by the parties.

What is "Fair and Fair Use"

　　Article 59 of the current Trademark Law stipulates that the general name, graphics and model of the commodity contained in the registered trademark, or the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the commodity, or the place name contained in it. , the owner of the exclusive right to a registered trademark has no right to prohibit others from using it properly.

In practice, the accused infringer may, according to this article, claim that he is using the sign involved in a case in a non-trademark sense legitimately and reasonably.

As for what is a fair use and what is a use in the sense of a trademark, which will substantially affect consumers' purchasing decisions, and even lead to confusion and misunderstanding of the source of goods or services, it should be determined by law enforcement and judicial authorities in specific cases. The authority will fully and comprehensively consider various factors such as the font form and context of use of the logo involved, whether it is used prominently, the degree of similarity to the plaintiff's trademark, the popularity and distinctiveness of the plaintiff's trademark, and the use intention of the accused infringer.

　　As pointed out by the Sichuan Higher People's Court in the second-instance judgment of the "Qinghuajiao" case, the defendant Wu Apo Hotpot Restaurant added its own registered trademark "Zou Yujiang" logo in front of the word "Qinghuajiao", followed by three "fish hotpot". The characters, "Qinghuajiao" and "Fish Hotpot" are consistent in font, font size, color, height, word spacing, etc. They are not used individually, but are used together with "Zou Yujiang" and "Fish Hotpot", completely and clearly. It has expressed to the public that the signature dish it provides to consumers is "green pepper fish hot pot", and the "green peppercorn" contained in the logo is an objective description of the green pepper seasoning contained in the special dishes it provides, and is not a trademark use .

The defendant has no intention to attach the plaintiff's trademark involved in the case, and the relevant public generally will not associate it with the plaintiff's trademark involved in the case, which will not cause confusion or misunderstanding, and its use does not constitute trademark infringement.

　　Similarly, since Hu La Soup is a special dish in Xiaoyao Town, Xihua County, Henan Province, the use or registration of the "Xiaoyao Town" logo on Hu La Soup products obviously only directly indicates the origin of the product and lacks distinctiveness.

For infringement lawsuits brought by such trademark owners, the trademark law has provided sufficient and powerful legal weapons for the accused infringers to maintain their normal operations and not be "maliciously ripped off".

Clarify the protection boundaries of geographical indications

　　Of course, not all geographical names cannot be registered as trademarks.

According to relevant regulations, geographical indications can be applied for registration as certification marks or collective marks.

The so-called "geographical indication" refers to a strong correspondence between a specific place name and the quality of a specific commodity. This strong correspondence refers to the fact that the specific quality of a commodity is mainly determined by the natural and human factors of its origin.

　　Like trademarks, once a GI has been reviewed, announced, and registered by an administrative organ, it protects the good reputation carried by the GI product and cannot be free-rider or counterfeited.

Otherwise, it will not only destroy the enthusiasm of honest management, but also lead to confusion and misunderstanding of consumers, which will damage the public interest.

Protecting a geographical indication can not only promote the healthy development of local related industries, increase the level of taxation and labor employment, but also stimulate fair competition and technological innovation, and ensure and improve the quality demand of consumers.

　　On the other hand, geographical indications are different from trademarks in the narrow sense.

Because a trademark sign refers to the quality and reputation of a certain commodity or service provided by a certain operator, while a geographical indication refers to a specific quality common to all similar goods within a specific geographical area.

Therefore, the exclusive right to use geographical indications is more exclusive, and the registration and examination of geographical indications should be stricter than that of ordinary trademarks. It must also meet the requirements of long-term use and general recognition by consumers, and its products are naturally and always closely related to geographical factors. , specific qualities that cannot be reproduced, etc.

In other words, not all indigenous products or products based on traditional craftsmanship are suitable for protection as GI products.

　　At the same time, the holder of the exclusive right of geographical indication cannot be a single operator, but should be a broadly representative industry organization.

It is not only necessary to effectively prove that the geographical indication carries the above-mentioned specific quality in the application for registration, but also to carry out necessary supervision and management after the registration is obtained to ensure that this specific quality is not diluted or even lost.

　　Tongguan Roujiamo Association's practice of launching rights protection lawsuits and collecting franchise fees is the most criticized thing that it does not fully prove the legitimate basis for exclusive property rights, that is, Tongguan Roujia Mo has no sufficient basis for its exclusive property rights, whether in terms of raw materials or production techniques. Whether the Jiamo has a specific quality determined by natural and human factors in Tongguan County, which cannot be reproduced, is different from other Roujiamo products, but only has a collective trademark authorization certificate.

This incident also reflects that the current registration, review, and management mechanisms of my country's geographical indications are not very consistent with the due protection boundaries of geographical indications, and it is difficult to fundamentally prevent some market players from exploiting the system for profit.

　　Any legal system is a text norm carrying a specific value orientation. The core value orientation of trademark law is to define the boundary of property rights, reduce transaction costs, encourage honest management, and curb symbol monopoly.

The discussions and in-depth thinking triggered by the above cases have given the public an opportunity to fully understand and correctly understand the trademark law and even the entire intellectual property system. and procedures to amend and improve, thereby enhancing the overall well-being of society.

(Author: Xiong Wencong, associate professor at the Law School of Minzu University of China)