Research On Protecting The Intangible Cultural Heritage By Trademark Law

China is an ancient civilization with a long history,Generations of people live and thrive here.They have created many distinctive intangible cultural heritage wealth.Nowadays,the intangible cultural heritage is not only familiar to the public,but also has the potential of great commercial value.Many vendors in the society use intangible cultural heritage for personal profit,distorting the public’s impression of non-heritage and hurting the feelings of non-heritage groups.The Miao is a very representative ethnic group in Guizhou.It has gorgeous ethnic treasures and countless intangible cultural heritage.Nowadays,with the rise of ethnic tourism,tourism projects of Miao culture have been an important part of tourism in Guizhou,While digging up the commercial value of non-heritage culture,the market is full of imitations of ethnic and cultural products.The problem of trademark squatting is serious,and the non-heritage culture and its inheritors have been harmed.Because of the special feature of intangible cultural heritage,there are many challenges and difficulties in the way of using the existing intellectual property system to protect it.With regard to how to determine the subject of rights,the majority of the opinions are that the subject can be a clear successor or an industry association or group,this is reasonable,but becausethe subject is a group,we should focus on fair use.It is believed that most non-heritages are the creation of groups,which are applicable to production techniques in a certain area,have public attributes,and the trademark law protection is private,but it should not be denied to others within the group.Secondly,the non-heritage trademark reflected in the case lacks distinctiveness.Most opinions are taken to enhance the distinctiveness of the trademark.However,for registered trademarks,there is still no feasible operation to obtain distinctiveness.In fact,in view of the US trademark law and other scholars’ viewpoints,for the special trademarkof the non-heritage trademark,substantive exclusive use is used as the standard for obtaining distinctive recognition.While solving the problem,it will also help reduce the difficulty of proof of the responsible subject.While protecting the private rights of non-heritage culture,it should also consider the public attributes it possesses in order to restrict the right holders.For example,restricting the transfer and authorized use of non-heritage trademarks by right holders,and strengthening the personal dependency of trademarks,so that such trademarks are closely linked with the inheritors and groups,and only qualified personnel can be trademark successors.Most of the current suggestions on the protection of intangible cultural heritage by trademark laws point to the China’s Trademark Law.Based on specific cases,the author believes that relying solely on trademark law cannot fully protect,and local regulations should be effectively linked.This article gives suggestions on how to implement the protection of trademark law.Based on the characteristics of the Miao ethnic group in Guizhou,the characteristics of non-heritage culture,and the relevant regulations issued by Guizhou,the author analyzes the feasibility and necessity of using the trademark law to protect the non-heritage culture.Combining the situation of non-heritage trademarks in Guizhou and domestic classic trademarkcases,the author analyzes the existing problems of non-heritage trademarks.Intheend,the author combined with similar foreign experiences to make suggestions for the protection of intangible cultural heritage in China by using trademark law.