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27
2020-09

Regulations on the protection of geographical indications for public comment

Time of issue: : 2020-09--27
On September 24, the State Intellectual Property Office published the draft provisions on the protection of geographical indications (Draft for comments) (hereinafter referred to as the draft for comments) and its amendment instructions to solicit opinions from all sectors of society. The draft has been revised in the current provisions on the protection of geographical indication products, in order to effectively protect geographical indications and ensure the quality and characteristics of geographical indication products. The draft stipulates that any unit or individual that uses the product name or product description to cause the public to misunderstand the origin of the product, or uses special geographical indications (hereinafter referred to as special indications) or signs similar to special indications on the product without approval to cause the public to misunderstand, shall be dealt with in accordance with the product quality law of the people's Republic of China; The use of the product name of a protected geographical indication on the same or similar products outside the scope of origin constitutes an infringement, which shall be stopped and fined by the market supervision and administration department. At the same time, the exposure draft defines the rights and obligations of multiple subjects. The application subject of geographical indications is the producer association or protection application institution designated by the people's government at or above the county level. After geographical indications are protected, the applicant shall take measures to manage the use of geographical indication product names and special signs, product quality characteristics, etc. Producers of geographical indication products have the right to use the names and special marks of geographical indication products, and shall organize production in accordance with corresponding standards or management norms. In addition to the corresponding obligations of the applicant and the producer, the local people's Government where the scope of origin is located shall establish and implement the product standard system, testing system and quality assurance system of protected geographical indications; The local intellectual property management department shall conduct daily supervision over the product quality characteristics and product standard compliance of protected geographical indications within its administrative region. It is reported that the current regulations on the protection of geographical indication products were formulated and implemented by the former AQSIQ in 2005. The supporting normative document measures for the protection of foreign geographical indication products was issued in 2016 and revised in 2019. The above regulations and normative documents have played an important role in effectively protecting geographical indication products and promoting local economic development. By the end of June 2020, 2385 geographical indication products had been approved and 8811 enterprises had been approved to use special signs. (reporter Wu Ke) (source: China Intellectual Property News)
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10
2020-01

Summary and analysis of Trademark Review and Adjudication Board on administrative litigation of Trademark Review and Adjudication Cases in 2018 (II)

Time of issue: : 2020-01--10
Summary and analysis of administrative litigation of trademark review cases in 2018 (II) Response and reconsideration division According to the data analysis in the first issue of review legal communication in 2018, the proportion of cases lost by the review department due to Articles 13 and 44.1 of the trademark law has increased significantly. Through the detailed combing of the above lost cases, we find that although most cases are lost due to differences in fact determination, including the submission of new evidence by the parties, the path and attitude of law application shown in some lost cases are particularly debatable. 1、 On the combination of article 44.1 "obtaining registration by other improper means" and other entity provisions According to the provisions of 17.5 of the guidelines for the trial of administrative cases of trademark authorization and confirmation issued by the Beijing Higher People's court, if other provisions of the trademark law can be applied to the cases of non registration review and invalidation, if the contested trademark is not registered or declared invalid, paragraph 1 of article 44 of the trademark law will no longer apply. From the expression of this provision, it seems that other substantive provisions have priority in application. On the premise that other provisions are established, article 44.1 may not be subject to substantive trial. However, in practice, on the issue of the combination of article 44.1 and other articles, the judicial decisions show obvious diversity or inconsistency. Some directly do not comment on article 44.1, while others conduct a substantive trial, but the conclusion is not tenable. These two practices are spear and shield in essence. In addition, the following practices deserve special attention. Case 1: the prior rights of the parties have been protected, so article 44.1 is no longer applicable. For example, in No. 9767386 "Jipu" trademark invalidation case [1] and No. 16693707 "Ralph opai" invalidation case [2], the reason why article 44.1 is no longer applicable in the first instance judgment is that the plaintiff's prior rights have been protected by Articles 13 and 30 respectively, so article 44.1 is no longer applicable. In the 11059128th case of "[3]", the commentary on the first instance is closer. The ruling points out that the trademark registration holder's application for registration is similar to that of the plaintiff and other well-known Baijiu brands, which is a case of damaging the specific civil rights and interests. In view of the fact that the trademark law of 2001 has been applied to the twenty-eighth, twenty-ninth trademark of the trademark law, the plaintiff's prior trademark rights shall be protected. Its claim of article 44.1 is no longer supported. This way of adjudication reflects two questions: first, what is the relationship between the prior rights clause and article 44.1? Why can article 44.1 no longer be applied when the prior rights of the parties are protected? Is this in line with the logic of law application? Second, it is against the consistent practice of administrative and judicial review to identify a large number of imitation registrations as damaging specific civil rights and interests. Moreover, there is no lack of space to explore whether the superposition of multiple facts damaging the interests of specific civil subjects may lead to a qualitative change in the nature of the act of applying for registration. Case 2: on the basis of other provisions, it is determined that other improper means are also established, but article 44.1 does not apply with reference to the previous case. For example, in the trademark invalidation case of "Mai whirlwind" No. 12049178 [4], the judgment of first instance first found that the registration of the contested trademark violated the provisions of paragraph 3 of Article 13 of the trademark law, and then commented that the contested trademark registrant and its sole shareholder registered a number of trademarks similar to other well-known trademarks, disturbing the order of trademark registration. Finally, in view of the application of the protection of Article 13, With reference to the spirit of 2015 Gao Xing Zhong Zi No. 659 judgment, article 44.1 is no longer applicable. We believe that this way of adjudication is to try and make substantive evaluation on the imitation registration without violating the provisions of 17.5 of the trial guidelines of the high court, which is a compromise approach. The advantage is that it can act as a deterrent to similar registration situations and give correct guidance to the application for registration. The disadvantage is that the logic of law application is still in doubt. Situation 3: on the basis of confirming the establishment of article 44.1, the well-known claim of Article 13 will not be commented. In the case of invalidation of "icalu" Trademark No. 9594513 [5], the judgment of first instance first found that articl
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