On The Fair Use Of Geographical Indications' Certification Trademark

Registered as certification trademark is the most important way to protect the geographical indications, it plays its protecting role by assigning geographical indications registered as certification trademarks. In accordance with the provisions of Article 52 of the Trademark Law of the People's Republic of China, only under certain conditions and with the approval by the right holder of geographical indications'certification trademark, can others use the indications, or without licensing, the use of the indications will constitute a trademark infringement. However, geographical indications'certification trademark often takes geographic names as trademarks, according to the provisions of Article 49 of the Implementation of Trademark Law of the People's Republic of China, others could take the geographic names as vocabularies to describe the product source, in that way, there will exist intrinsic conflict between the protection of geographical indications'certification trademark and other operators'fair use of the geographic names of the geographical indications. At present, in China the discussion of how to deal with the problem by the theory horizon and practice is still plain. Therefore, my paper will take the case of"Fuling hot pickled mustard tuber"as an example to analyze the focus. In the first part, the case of"Fuling hot pickled mustard tuber"is summarized.By reviewing the case and analyzing the facts, my paper draws forth the conflict problem which comes from the situation when geographical indications'certification trademarks be specifically applied .Then, solutions will be derived after the conflict problem, that is to establish the geographical indications'certification trademarks'fair use system.The second part states the advantages of the protected mode of geographical indications'certification trademark. At the beginning, with comparative study of the current situation of geographical indications'protection of domestic and foreign trademark law, and then by comparison between protected mode of certification trademark in trademark law, the mode of special law, the mode of commercia indication law and the mode of anti-unfair competition law, to illustrate comparative advantages of the protected mode of geographical indications'certification trademark.The third part make the theoretical analysis of geographical indications'certification trademarks'fair use. Mainly from the philosophy of law and economics angle to prove that the fair use system can be applied to geographical indications'certification trademarks.The forth part Make institutional research of geographical indications'certification trademarks'fair use. On the basis of comparative study of the fair use system of trademark which set in both domestic and foreign trademark law, to further state the types and conditions of geographical indications'certification trademarks'fair use.The fifth part set forth the idea about how to perfect the fair use system of geographical indications'certification trademarks of China. Mainly by combining the third modification upcoming of Trademark Law to talk about the perfection of China's fair use system of geographical indications'certification trademarks.