Study On The Identification Of Trademark Infringement Of Geographical Indication Proof

Geographical indication proves that trademark is a special branch of trademark,which has the dual characteristics of geographical indication and trademark.Different from the basic function of ordinary trademark to distinguish the origin of goods or services,geographical indication proves that the core function of trademark is to indicate the relationship between the specific quality,reputation and origin of the product.The difference between ordinary trademark and geographical indication proof trademark results in that ordinary trademark infringement determination rules cannot be fully applied to geographical indication proof trademark.Therefore,on the basis of the general trademark infringement recognition,it is an unavoidable reality to establish the geographical indication proof trademark infringement recognition rules.The identification of trademark infringement based on geographical indication is confronted with many problems,such as how to identify the infringement act,what kind of infringement standard to apply and how to judge what constitutes the defense of fair use.When the court deals with these problems,it not only fails to deal with the relationship with the ordinary trademark infringement recognition rules externally,but also fails to separate the different steps and constitutive elements of the infringement recognition internally.In fact,the underlying logic of trademark infringement identification is still applicable to the geographical indication proof,but the consideration factors of each link need to be flexible around the quality assurance function.Clarifying geographical indications to prove trademark infringement is the first step in the determination of infringement.By distinguishing the infringements of different producers and operators in and outside geographical producing areas,we can clarify what constitutes infringement and leave room for the public to use trademarks commercially in the sense of public resources.Then,the rationality of applying the judgment standard of quality misperception tort is further demonstrated,and the hierarchical relationship between the two independent elements of the judgment of similarity and quality misperception is determined.In addition,the judgment of quality misperception should be constantly backtracking and jumping in the relevant market,and the scope and attention degree of the relevant public should be considered comprehensively.Finally,the special fair use tort defense rules of trademark which belongs to geographical indication proof are formulated.Including place names and geographical indications to prove that trademarks should adopt the judgment criteria of "avoiding misidentification of quality" + legitimate use mode,and whether it constitutes legitimate use by combining subjective good faith,location and mode of use.After clarifying the meaning of common name in the context of geographical indication,the proper use of common name is divided into two forms: the common name contained in the use mark and the degenerated common geographical indication.It is argued that the common name contained in the logo should meet reasonable avoidance conditions.It is suggested that the proper use of general geographical indication should focus on the existence of objective correlation between the product and the place of origin in the national market,supplemented by relevant public cognition.