Research On Judicial Process To Conflicts Between Geographical Indications And Trademarks Of Geog Raphical Names

The geographical indication is a inherited intangible assets with five thousand years of civilization,which is China's enormous wealth. However, the protection of geographical indications is different from other countries. For example, in France as the representative geographical indications, the "old world", is rich in resources, and the legislation on geographical indications start early, and they develop a special Law on the Protection of Geographical Indications, with a high level of protection, this model is known as a special law model. The United States is representative of the "New World" which are mostly immigrants nations with limited resources of Geographical Indications,and perfect domestic trademark law,which is including geographical indications,using collective marks or certification marks to protect geographical indications, this model is known as trademark protection model. In China,there are two departments,two models of protection of geographical indications at the same time. Collective marks and certification marks are protected by business sector,while geographical indications are protected by quality inspection departments. In addition, geographical indications are protected by the "Anti-Unfair Competition Law", "Product Quality Law," "Consumer Protection Law" and other laws which are in general. However, due to imperfections of the law,there have been many problems in the protection of geographical indications in practice,and one of the most prominent problems is the conflict between geographical indications and trademarks of geographical names,such as the first case --"jinhua ham case",and such cases continue to appear in judicial practice , bring greater difficulty to the Court of activities.This article mainly discuss how to deal with the conflict between geographical indications and trademarks of geographical names.This article is divided into four parts:The first part is mainly about the basic facts of "Jinhua Ham case" and summarize the case at issue. The second part is to determine if there is conflict between geographical indications and trademarks of geographical names. Through the differences between geographical indications and trademarks of geographical names ,we find out the conflict elements such as the legality of the right , the identity of the object, the diversity of the subject and so on. The third part is to determine geographical indications and trademarks of geographical names which constitute a conflict of rights. If the conflict of rights is made of geographical indications and trademarks of geographical names, then what kind of conflict of rights, legal rights or against the law conflict, because the two dealing the results are completely different, and therefore we need analyzing and determining. In this article, we should take factors of conflict into account , Such prior rights, the subjective intent, the balance of interests, business logo visibility and other factors. The fourth part is about how to deal with conflict if the legality of right exists After analyzing and determining the legality of the conflict of rights, they can not be sloved by bearing civil liability,but to slove it by judicial means,such as regulatting uses of business logo and additional distinctive logo.