Research On Judicial Determination Of Proper Use Of Geographical Indication Certification Marks

Under the background of building a strong intellectual property right country in China,improving the construction of the rule of law for geographical indications is a key part of it.As a defense for infringement of geographical indications,the proper use of geographical indications plays a pivotal role in the construction of the rule of law of geographical indications,which is not only related to the rights and interests of the right holders of geographical indications,but also closely connected with the social public interests of China.However,many problems and shortcomings have been revealed in the judicial determination of the proper use of the geographical indication certification mark in China,which is not only unfavorable to the right holder of the geographical indication certification mark to safeguard their legitimate rights and interests,but also unfavorable to the public to exercise the right to use the geographical indication certification mark properly.Based on the analysis of judicial cases on the legitimate use of geographical indications in recent years,this paper summarizes that the judicial determination of the legitimate use of geographical indications in China is controversial in terms of the relationship between legitimate use and likelihood of confusion,neglects the determination of subjective elements of legitimate use,and inconsistent determination of objective elements of legitimate use,and reviews and reflects on the relevant issues,and concludes that the relationship between legitimate use and likelihood of confusion is not clear,and the subjective elements of legitimate use are not clear.The relationship between legitimate use and likelihood of confusion is not clear,the lack of analysis of the subjective elements of legitimate use and the lack of comprehensive consideration of the objective elements of legitimate use are the reasons for the series of problems.In this paper,the judicial practice of the determination of the legitimate use of geographical indication marks in foreign countries is studied and referred to,and suggestions for the improvement of the judicial determination of the legitimate use of geographical indication marks are proposed from three aspects based on the real situation and judicial practice in China.Firstly,it clarifies the special nature of the relationship between legitimate use and likelihood of confusion,and that the determination of legitimate use should focus on the likelihood of confusion in order to clarify the relationship between legitimate use and likelihood of confusion of geographical indications.Secondly,to improve the judgment standard of the principle of subjective good faith from two aspects: legitimate purpose of use and necessary demand for use,so as to clarify the determination of the subjective elements of legitimate use.Finally,the objective elements of justified use are determined by clarifying the composition of the products involved and the composition of the manner of use,thus providing specific reference and suggestions for the judicial determination of justified use of geographical indications,and giving reasonable play to the role of justified use as a "safety valve" for infringement of geographical indication marks.