| The identification of generic names of commodities is an important issue in the field of trademark law.From Article 11 of the current "Trademark Law of the People’s Republic of China"(referred to as "Trademark Law"),it can be seen that the generic names of commodities cannot be registered as trademarks.Article 44 and Article 49 of the Law use "only the generic name of this product" as the grounds for trademark invalidation and cancellation.Therefore,the identification of generic names may not only appear in trademark authorization and confirmation procedures,but also in trademark infringement litigation.According to Article 59 of the Trademark Law,the defendant usually has no right to prohibit others from using the generic name of the product in a registered trademark to defend against infringement.At this time,the issue of determining the generic name cannot be avoided.Accurate identification of generic names is not only conducive to standardizing the use of registered trademark elements and the function of trademarks,but also to further clarify the boundaries between symbols and trademarks that the public can freely use.The "Trademark Law" and other Regulations also involve relevant provisions on generic names and their determination,but the content is omitted Obviously simple;in practice,trademark administrative agencies and courts at all levels adopt different standards for determining generic names.Therefore,this article sorts out the current status of the legislation and judicial practice of identifying generic names of commodities,and on this basis,summarizes the problems and deficiencies in the identification of generic names in my country,combining the basic theories of trademark law and drawing on the practical experience of the identification of generic names in the United States,and proposes Suggestions on improving our country’s generic name legislation to better solve the problem of generic name recognition in practice.Chppter One summarizes the main controversies and issues regarding the recognition of generic names by combing through the current status of legislation and practice in the recognition of generic names in our country.First of all,China currently lacks a unified understanding of the connotation of commodity generic names.There are disputes about the classification of generic names and the distinction between identification standards,and generic names are easily confused with commodity-specific names and geographical indications.Secondly,with regard to the identification standards of generic names,the provisions of judicial interpretation are not clear enough;for example,the basic criteria for identification of generic names are not clear;secondly,there are certain application problems in the legal provisions regarding the time standards for identification of generic names,and there are also academic circles Various discussions and controversies;third,the definition of the geographical scope of common names is likely to conflict with geographical indications.Finally,whether the rules for judicial and administrative determination of generic names should be unified has been rarely studied in academia;the subject of common name determination involves trademark administrative agencies and courts.In principle,the two should adopt unified rules for determination.However,in practice,trademark administration Authorities and courts at all levels adopt different standards when determining generic names.Cases involving the determination of generic names of goods have been processed for a long time,and the results of the trials at each stage are inconsistent.In addition,the scope of duties of trademark administrative agencies and courts is different,and they follow the same rules.Standards also bring many problems.This chapter studies and defines the theoretical connotation of the concept of generic names.In essence,generic names and trademarks are not completely opposed to each other.Both are signs.In the field of trademarks,scholars have used semiotics to study trademarks.This article "stands on the shoulders of giants" with the help of semiotics.Theoretical analysis of the connotation and classification of common names,the differences between common names and trademarks,product-specific names,and geographical indications,lays the foundation for the following argumentation and analysis.studies and defines the theoretical connotation of the concept of generic names,analyzes the basic theories involved in identifying generic names,and studies and grasps the key factors of the commonality of commodity names to lay the foundation for the following argumentation analysis.In response to the unclear standard for identifying generic names of commodities raised in Chapter 1,this article believes that the basic criteria for identifying generic names should be clearly identified as the perception of the relevant public,and consumer or market surveys reflect public perceptions The most direct evidence,other reference factors,such as legal regulations,national standards or industry standards,also reflect the perception of the relevant public from the side;in addition,there are certain differences in the perception of the relevant public in terms of time and space.Therefore,it is necessary to correctly understand the time and regional standards for the recognition of generic names.Secondly,at the level of judicial application,this article proposes to integrate and supplement the scattered provisions of the"Trademark Examination and Trial Standards" and the "Regulations of the Supreme People’s Court”.Form a unified standard and rules for the recognition of generic names of trademarks;at the same time,due to the different responsibilities of trademark administrative agencies and courts,appropriate distinctions should be made in the rules for determining generic names to ensure the normal performance of their functions. |
