On the Factors for Determining the Fair Use Defense Rule in Geographical Indication Trademark Infringement

DOI: https://doi.org/10.62517/jel.202514316

Author(s)

Yanqi Tao

Affiliation(s)

China Jiliang University, Hangzhou, Zhejiang, China

Abstract

Geographical indication trademarks inherently possess weak distinctiveness due to their inclusion of both place names and generic names of goods, which have the attribute of public resources. In related infringement disputes, the proper use of geographical indication trademarks not only constitutes the core defense basis of the accused infringer but is also a highly controversial core issue in judicial practice. This article re-examines the defense rule of "fair use", conducts an in-depth analysis of the key elements influencing the determination of fair use of geographical indication trademarks, and clearly points out that geographical indication certification trademarks and collective trademarks should not be confused. The fair use of certification trademarks should not simply refer to the regulatory provisions on collective trademarks in the "Regulations for the Implementation of the Trademark Law of China". At the same time, non-trademark use is not a sufficient condition for constituting an infringement defense. The determination of fair use does not need to take trademark use as a prerequisite for infringement judgment, and within a certain limit, it can tolerate the risk of confusion.

Keywords

Geographical Indication Trademark; Proper Use; Balance of Interests; Trademark Use; Confuse Possibilities

References

[1] Zeng Yan. Research on the Construction of Geographical Indication Brands of Agricultural Products in China from the Perspective of Economic Law. Journal of Southeast University (Philosophy and Social Sciences Edition), 2022, (02):90-93. [2] Song Xinzhe. Review and Reconstruction of the Path for Trademark Law to Protect Geographical Indications: Starting from the Logical Point of Differentiation Function. Journal of Hainan University (Humanities and Social Sciences Edition), 2023, 42(06):139-147. [3] Wang Lianfeng. Trademark Law (Fourth Edition). Peking University Press, 2023. [4] Xu Gangqin. The legal sources, characteristics and legislative improvement of geographical indications. Chinese Trademark, 2009, (12):53-56. [5] Wang Taiping. The unification of the concept of trademark use in trademark law and the improvement of its system. Chinese and Foreign Jurisprudence, 2021, (04):1024. [6] Xu Zimiao. Analysis of "Trademark Use" in Trademark Infringement Determination in the Internet Environment. Technology and Law (in Chinese and English), 2022, (04):95. [7] Wang Xiaobing. The essence of true geographical indication protection lies in the unified legislation of geographical indications in our country. Legal Studies, 2023, 45(06):94-115. [8] Feng Xiaoqing, Guo Shan. Research on the Descriptive Fair Use System of Trademarks. Journal of Shaoyang University (Social Sciences Edition), 2020, (19):46. [9] Zhang Defen. The meaning of "use" in trademark infringement. Intellectual property rights, 2014, (9):7. [10]Yin Shaoping. Research on the Interpretation and Application of Confusion Elements in Trademark Infringement Judgments. Intellectual property rights, 2024, (10):82-96.