Strengthening the protection of geographical indications. is not only the TRIPS requirements. but also to protect our own interests and needs. For China to the protection of geographical indications system to do Express compliant with the TRIPS requirements, and catch up with international standards, in addition to the operator, should regulate the use, Geographical Indications consciously safeguard the image and credibility, the State legislature and the responsibility of law enforcement departments, but its role is irreplaceable. I believe that the state should proceed immediately to the following aspects :
1．1. 制定系统科学的法律、法规.目前世界各国保护地理标志的法律形式和具体内容存在较大差异.英美法系国家，一般将地理标志的保护纳人商标法的保护体系，规定地理标志可以作为证明商标获得注册并取得保护;法国等国家采用特别法的形式保护地理标志，专门制定了相关的法律、法规;德、日等国以反不正当竞争法来调整地理标志的使用和保护；除此以外，许多国家的海关法、贸易法也对假冒地理标志商品的进出口有特别规定，国际社会也制定了一系列包含或专门规定地理标志保护的国际公约，如《巴黎公约》、《马德里协定》、《里斯本协定》以及TRIPS。Develop the legal system science, regulations. At present, countries in the world to protect geographical indications of legal form and substance there is a big difference. common law countries, generally the protection of geographical indications were satisfied that the trademark protection system, provides geographical indications can be used as a certification trademark to be registered and obtained protection; France and other countries in the form of a special law to protect geographical indications, specifically formulated relevant laws and regulations; Germany, Japan and other countries with anti - unfair competition law to regulate the use of geographical indications and protection; In addition, many of the customs law, UNCITRAL also fake geographical indications to the import and export of goods specified, The international community has also formulated a series of special provisions contained or geographical indications protection of international conventions, such as the "Paris Convention" "Madrid Agreement," the "Lisbon Agreement" and TRIPS. 上述各国法律和国际公约，给我国立法机关制定相应的法律、法规提供了参考依据和选择机会.Above national laws and international conventions, China's legislature to formulate relevant laws, regulations provide reference information and choices.
笔者认为，从国际上比较通行的做法和成功经脸来看，我国选择将地理标志的保护纳入商标法的调整体系较为妥当.这一方面要在商标法中增加允许地理标志作为证明商标申请注册以及申请注册的条件和程序的规定，另一方面还要对现行商标法第8条第2款内容进行修改，明确规定已经依法作为地理标志使用的地名不得作为普通商标使用.In my opinion, from the more common international practices and successful face, My choice of geographical indications protection into Trademark adjustment system would be more appropriate. In this regard the trademark to increase agreed Xu geographical indications as proof registered trademark applications for registration and the conditions and procedures, on the other hand, but also the current Trademark Law Article 8, paragraph 2, as amended. the law has clear provisions as a geographical indication of the use of place names may not be used for ordinary use of the trademark.
2．2. 建立地理标志的注册登记制度.地理标志之所以成为受到保护的工业产权，原因在于它代表了产品的质量和特点，是一种集体信誉的载体，因而将地理标志作为证明产品原产地、质量或特性的证明商标加以调整和保护是完全可行的。The establishment of geographical indications registration system. Geographical indications protection has become the industrial property, The reason is that it represents the quality of products and features, is a collective credibility of the carrier, result of geographical indications as to prove that the products of origin, the quality or character proved to be adjusted and trademark protection is totally feasible. 我国可以建立地理标志注册登记制度、具体涉及下面几方面的问题:China can establish geographical indication registration system, specifically the following several aspects :
一是注册登记的主体。One of the main registration. 地理标志是原产地内特定商品的生产者共同享有的集体权利，符合条件的生产者享有平等的使用权，不能由其中的某个或某些生产者垄断，因此，地理标志的注册登记主体不能是产地内的某个企业或个人当无异议.有人主张由政府的产品质量监督部门或工商行政管理部门作为注册人，但笔者认为不妥，理由在于：一地理标志权是一种民事权利，应由民事主体享有；二是当工商部门作为注册人时，使注册申请人和注册批准人合二为一，其不合理性更是显而易见；注册人取得注册后，可能出现注册人自己处罚自己的不正常现象。Geographical indications of origin within specific commodity producers enjoy the collective rights eligible producers have equal right to use, and not by the producer or a monopoly, therefore, geographical indications registration is not the main origin of a particular enterprise or individual when no objection. It was advocated by the government's products quality supervision departments of industry and commerce administration departments or as a registered person, but the author thinks is wrong with the ground is : a geographical indications right is a civil right should be subject to civil; Second, when the business sector as a registered person, so registered applicants were approved for registration and merged its irrational nature is obvious; Registration obtain registration, possible registered themselves punished their lack of a normal phenomenon. 故笔者认为应在地理标志所在地组建行业协会，作为使用该地理标志产品行业的自律性组织，并由其作为注册人向有关机关申请注册登记.I think it should be the geographical location of the formation signs trade associations, As the use of the geographical indications products industry self-regulatory organizations, As with its registered to the relevant authorities for registration.
二是注册登记的条件。2 is the registration conditions. 能够作为证明商标注册登记的地理标志应当是其指示的商品具有上佳的质量和显著的特点，并在相当地城内和相关公众中赢得良好信誉.地理标志的信誉和产品的质量、特点是否达到了可以注册登记的条件，应当经过客观、公正的市场调查后得出。To be able to prove that the trademark registration of geographical indications should be indicative of its merchandise is good quality and significant features, and the lack of relevant to the public and the city has won good reputation. Geographical Indications of credibility and the quality of products, whether the features can be registered, and should be based on objective and impartial investigation reached the market. 一般地说，只要地理标志在注册登记地的行政区域范围内具有普遍的影响力。Generally speaking, as long as geographical indications in the registration of the administrative regions within the scope of universal influence. 得到大多数消费者的青睐，就应准于注册登记.The majority of consumers favor, it shall be allowed to register.
三是注册登记的程序。3 is the registration process. 证明商标的注册登记程序应比普通商标更简便、申请人按规定提交注册申请书及其他必备的证明材料、经注册行政机关审核后，凡符合法定条件的即可准予注册登记.为防止注册人不当注册给他人造成损害，应给予利害关系人在一定期限内提出异议或请求撤消的权利.对注册机关的最终处理决定不服的，按我国现行商标法的规定，当事人无权请求司法介入，这是不符合TRIPS要求的。Prove that the trademark registration procedures should be more than an ordinary trademark simple, applicants were required to submit registration applications and other necessary documentation, the registered executive assessment, Where compliance with the statutory requirements will be granted registration. To prevent the improper registration of a registered person to cause harm to others, interested persons should be given within a certain period of time raise objections or the right to withdraw the request. Registration for the final disposal authorities decided not to clothing, according to the existing Trademark Law of China stipulates that the parties have no right to request for judicial intervention, This is not compliant with the TRIPS requirements. 故笔者认为应允许当事人向人民法院起诉.Therefore, I think we should allow the parties to a people's court.
Three,over for our country the geography symbolize a protective counterplan thinking
Strengthen the protection of the geography marking, not only is a TRIPS request.BE also a maintenance our country the demand of the self interest.To make the geography marking of the our country protection system meet a TRIPS request as soon as possible catch up international level, in addition to executive should the norm usage behavior, aware of self the image and the outside of the prestige of the maintenance geography marking, the national lawmaking organization and government enforce the law a section duty-bound, and its function can't act for.The writer think the relevant national organization should begin immediately several works as follows:
1.the law,laws of the establishment system science.Currently international community protection geography marking of law form with concrete the contents exist bigger difference.British and American methods fasten a nation, general the protection 纳 that the geography symbolize person the protection system of the trademark method, the provision geography marking can be prove the trademark acquire register and obtain protection;France wait the nation adoption special method of the form protection geography marking, draw up related law,laws exclusively;virtuous,day etc. country with anti- be the competition method falsely to adjust the usage and the protection of the geography marking;In addition to this, many maritime customs methods of nations,the trade method also have special provision to the import and export that counterfeits the geography marking merchandise, the international society also drew up a series to include or specialized provision the geography symbolize a protective international convention, such as 《Parisian convention 》,《Madrid pact 》,《Lisbon pact 》and TRIPS.Above-mentioned all countries law and international convention, give our country the lawmaking organization establishment correspond of the law,laws provided the reference basis and the choice opportunity.
The writer think that from international top the more passing way of doing and success see through the face, the our country choice brings the protection that the geography symbolize into the adjustment system of the trademark method more appropriate.This aspect want increment in the trademark method allow the geography marking as prove the trademark application register and applies for the condition and procedure of the registration of provision, still want on the other hand to the current trademark method Article 8s the 2nd contents carry on a modification, rule definitely already by law Be the place name that geography symbolizes an usage and can not be a common trademark usage.
2.the establishment geography the registration of the marking register system.The reason that the geography marking becomes being subjected to protective industry to produce power, the reason lies in the quality and characteristics that it represented a product, is a kind of collective prestige to carry a body, as a result symbolize geography Be the certificate trademark that proves the product original habitat,quality or characteristic to take in to adjust is completely viable with protection.The our country can build up the geography marking to register register system and concretely involve an underneath several problems:
While being the corpus that registers register.The geography marking is the collective right that the manufacturer of the particular merchandise inside the original habitat possesses together, matching a conditional manufacturer to possess equal usage power, can't from among them a certain or some manufacturer 垄s break, therefore, the registration of the geography marking register the corpus can't be a habitat inside of a certain business enterprise or personal be no objection.Someone lays claim to direct the section or the industry and business administration to manage section as to register a person from the product quality of the government, but the writer think not satisfactory, the reason lie in:A the geography marking power is a kind of civil case right, should be possess by the civil case corpus;Two is be the industry and business section as to register a person, make to register an applicant and register an approval a person to match two is a, its ising unsuited to reasonableness is more obvious;After register the person obtain to register, the possible emergence registers a person's oneself to punish an own iniquity phenomenon often.The past writer thinks and should symbolize the located set to set up the profession association in the geography, Be the self-discipline organization that uses that geography marking product profession, and make it as to register a person toward relevant organization application to register register.
Two is the condition that registers register.Can be the geography marking that proves the trademark registers register should be the merchandise that it indicate to have up the good quality with show the characteristics of the 著 , and in fairly the city with win good prestige in the related public.Whether the prestige of the geography marking and the quality,characteristics of the product come to a the condition that can register register or not, should pass by objective and fair of the market research gets behind.Say generally, as long as the geography marking has widespread influence in the registration scope in the administration district of register the ground.Get the favor of most consumers, should be quasi- to register in the registration.
Three is the procedure that registers register.The registration that proves trademark's registering procedure should be more more simple than common trademark,the applicant is by rule to hand over to register the written application and other essential certificate materials,after registering the administration organization to examine, any match legal conditional then quasi- register to the registration.In bar of register not appropriate registration of person to result in to the others damage, should give the relation the person to put forward the right of the objection or claim repeal in the certain term.Defy to the end processing decision that registers an organization of, provision pressed our country a current trademark method, the party concerned has no business the claim judicatory to get involved, this nots agree with to match the TRIPS request.The past writer thinks promise the party concerned toward court of the people sue.
回答者：6392541196 - 同进士出身 七级 6-2 13:28
Third:Thoughts on Strengthing the Protecting of Georaphic Marks
Sthengthening the protection of geographic marks is not only required by TRIPS,but also necessary to protect the self interest of our country. To make the system of protecting geographic marks meet the request of TRIPS and catch up with the international level as soon as possible, in addition to the requirement that the users standardized their behaviors to protect the image and reputation of the geographic marks, the legislative and excutive agencies are duty-bound, and their functions can't be substituted. The writer thinks that relative state organizations should start the following work immediately:
first, enact systematic and scientific las and regulations.
Currently there are many differences in legal form and specific content of protecting geographic marks all over the world. In Anglo-American law system, the protection of geographic marks is included in the protection system of trademark by treating geographic marks as certification marks which can be registered and protected; grographic marks are protected by special law in Franch and other countries as they enact relative special laws and regulations; in Janpan , Germany and other countries,the usage and the protection of the geographic marks are adjusted by anti-unfair competition law.
In addition to these, there are also some special provisions against the import and export of merchandises which counterfeit geografical marks in many countries' customs laws and trade laws.
The international society also draws up many conventions to sepcial regulate or which includes special provision to regualte the protection of gegraphic marks, such as Paris Convention, Marid Treaty, Lisbon Treaty and TRIPS. The above-mentioned las and international conventions provide references and choices for china legislative department to draft relative laws and regualtions.
By reference to the common and sucessful practice of foreign laws, the writer suggests that in china the protection of geographic marks should be included in the protection system of trademark. On the one hand, provisions should be included in the trademark law allow the geografical marks to be re
Three,over for our country the geography symbolize a protective counterplan thinking
Strengthen the protection of the geography marking, not only is a TRIPS request.BE also a maintenance our country the demand of the self interest.To make the geography marking of the our country protection system meet a TRIPS request as soon as possible catch up international level, in addition to executive should the norm usage behavior, aware of self the image and the outside of the prestige of the maintenance geography marking, the national lawmaking organization and government enforce the law a section duty-bound, and its function can't act for.The writer think the relevant national organization should begin immediately several works as follows:
1.the law,laws of the establishment system science.Currently international community protection geography marking of law form with concrete the contents exist bigger difference.British and American methods fasten a nation, general the protection 纳 that the geography symbolize person the protection system of the trademark method, the provision geography marking can be prove the trademark acquire register and obtain protection;France wait the nation adoption special method of the form protection geography marking, draw up related law,laws exclusively;virtuous,day etc. country with anti- be the competition method falsely to adjust the usage and the protection of the geography marking;In addition to this, many maritime customs methods of nations,the trade method also have special provision to the import and export that counterfeits the geography marking merchandise, the international society also drew up a series to include or specialized provision the geography symbolize a protective international convention, such as 《Parisian convention 》,《Madrid pact 》,《Lisbon pact 》and TRIPS.Above-mentioned all countries law and international convention, give our country the lawmaking organization establishment correspond of the law,laws provided the reference basis and the choice opportunity.
The writer think that from international top the more passing way of doing and success see through the face, the our country choice brings the protection that the geography symbolize into the adjustment system of the trademark method more appropriate.This aspect want increment in the trademark method allow the geography marking as prove the trademark application register and applies for the condition and procedure of the registration of provision, still want on the other hand to the current trademark method Article 8s the 2nd contents carry on a modification, rule definitely already by law Be the place name that geography symbolizes an usage and can not be a common trademark usage.
2.the establishment geography the registration of the marking register system.The reason that the geography marking becomes being subjected to protective industry to produce power, the reason lies in the quality and characteristics that it represented a product, is a kind of collective prestige to carry a body, as a result symbolize geography Be the certificate trademark that proves the product original habitat,quality or characteristic to take in to adjust is completely viable with protection.The our country can build up the geography marking to register register system and concretely involve an underneath several problems:
While being the corpus that registers register.The geography marking is the collective right that the manufacturer of the particular merchandise inside the original habitat possesses together, matching a conditional manufacturer to possess equal usage power, can't from among them a certain or some manufacturer 垄s break, therefore, the registration of the geography marking register the corpus can't be a habitat inside of a certain business enterprise or personal be no objection.Someone lays claim to direct the section or the industry and business administration to manage section as to register a person from the product quality of the government, but the writer think not satisfactory, the reason lie in:A the geography marking power is a kind of civil case right, should be possess by the civil case corpus;Two is be the industry and business section as to register a person, make to register an applicant and register an approval a person to match two is a, its ising unsuited to reasonableness is more obvious;After register the person obtain to register, the possible emergence registers a person's oneself to punish an own iniquity phenomenon often.The past writer thinks and should symbolize the located set to set up the profession association in the geography, Be the self-discipline organization that uses that geography marking product profession, and make it as to register a person toward relevant organization application to register register.
Two is the condition that registers register.Can be the geography marking that proves the trademark registers register should be the merchandise that it indicate to have up the good quality with show the characteristics of the 著 , and in fairly the city with win good prestige in the related public.Whether the prestige of the geography marking and the quality,characteristics of the product come to a the condition that can register register or not, should pass by objective and fair of the market research gets behind.Say generally, as long as the geography marking has widespread influence in the registration scope in the administration district of register the ground.Get the favor of most consumers, should be quasi- to register in the registration.
Three is the procedure that registers register.The registration that proves trademark's registering procedure should be more more simple than common trademark,the applicant is by rule to hand over to register the written application and other essential certificate materials,after registering the administration organization to examine, any match legal conditional then quasi- register to the registration.In bar of register not appropriate registration of person to result in to the others damage, should give the relation the person to put forward the right of the objection or claim repeal in the certain term.Defy to the end processing decision that registers an organization of, provision pressed our country a current trademark method, the party concerned has no business the claim judicatory to get involved, this nots agree with to match the TRIPS request.The past writer thinks promise the party concerned toward court of the people sue.
Strengthening the protection of geographical indications. is not only the TRIPS requirements. but also to protect our own interests and needs. For China to the protection of geographical indications system to do Express compliant with the TRIPS requirements, and catch up with international standards, in addition to the operator, should regulate the use, Geographical Indications consciously safeguard the image and credibility, the State legislature and the responsibility of law enforcement departments, but its role is irreplaceable. I believe that the state should proceed immediately to the following aspects : 1. Develop the legal system science, regulations. At present, countries in the world to protect geographical indications of legal form and substance there is a big difference. common law countries, generally the protection of geographical indications were satisfied that the trademark protection system, provides geographical indications can be used as a certification trademark to be registered and obtained protection; France and other countries in the form of a special law to protect geographical indications, specifically formulated relevant laws and regulations; Germany, Japan and other countries with anti - unfair competition law to regulate the use of geographical indications and protection; In addition, many of the customs law, UNCITRAL also fake geographical indications to the import and export of goods specified, The international community has also formulated a series of special provisions contained or geographical indications protection of international conventions, such as the "Paris Convention" "Madrid Agreement," the "Lisbon Agreement" and TRIPS. Above national laws and international conventions, China's legislature to formulate relevant laws, regulations provide reference information and choices. In my opinion, from the more common international practices and successful face, My choice of geographical indications protection into Trademark adjustment system would be more appropriate. In this regard the trademark to increase agreed Xu geographical indications as proof registered trademark applications for registration and the conditions and procedures, on the other hand, but also the current Trademark Law Article 8, paragraph 2, as amended. the law has clear provisions as a geographical indication of the use of place names may not be used for ordinary use of the trademark. 2. The establishment of geographical indications registration system. Geographical indications protection has become the industrial property, The reason is that it represents the quality of products and features, is a collective credibility of the carrier, result of geographical indications as to prove that the products of origin, the quality or character proved to be adjusted and trademark protection is totally feasible. China can establish geographical indication registration system, specifically the following ways : First, the main registration. Geographical indications of origin within specific commodity producers enjoy the collective rights eligible producers have equal right to use, and not by the producer or a monopoly, therefore, geographical indications registration is not the main origin of a particular enterprise or individual when no objection. It was advocated by the government's products quality supervision departments of industry and commerce administration departments or as a registered person, but the author thinks is wrong with the ground is : a geographical indications right is a civil right should be subject to civil; Second, when the business sector as a registered person, so registered applicants were approved for registration and merged its irrational nature is obvious; Registration obtain registration, possible registered themselves punished their lack of a normal phenomenon. I think it should be the geographical location of the formation signs trade associations, As the use of the geographical indications products industry self-regulatory organizations, As with its registered to the relevant authorities for registration. 2 is the registration conditions. To be able to prove that the trademark registration of geographical indications should be indicative of its merchandise is good quality and significant features, and the lack of relevant to the public and the city has won good reputation. Geographical Indications of credibility and the quality of products, whether the features can be registered, and should be based on objective and impartial investigation reached the market. Generally speaking, as long as geographical indications in the registration of the administrative regions within the scope of universal influence. The majority of consumers favor, it shall be allowed to register. 3 is the registration process. Prove that the trademark registration procedures should be more than an ordinary trademark simple, applicants were required to submit registration applications and other necessary documentation, the registered executive assessment, Where compliance with the statutory requirements will be granted registration. To prevent the improper registration of a registered person to cause harm to others, interested persons should be given within a certain period of time raise objections or the right to withdraw the request. Registration for the final disposal authorities decided not to clothing, according to the existing Trademark Law of China stipulates that the parties have no right to request for judicial intervention, This is not compliant with the TRIPS requirements. Therefore, I think we should allow the parties to a people's court.
Third:Thoughts on Strengthing the Protecting of Georaphic Marks
Sthengthening the protection of geographic marks is not only required by TRIPS,but also necessary to protect the self interest of our country. To make the system of protecting geographic marks meet the request of TRIPS and catch up with the international level as soon as possible, in addition to the requirement that the users standardized their behaviors to protect the image and reputation of the geographic marks, the legislative and excutive agencies are duty-bound, and their functions can't be substituted. The writer thinks that relative state organizations should start the following work immediately:
first, enact systematic and scientific las and regulations.
Currently there are many differences in legal form and specific content of protecting geographic marks all over the world. In Anglo-American law system, the protection of geographic marks is included in the protection system of trademark by treating geographic marks as certification marks which can be registered and protected; grographic marks are protected by special law in Franch and other countries as they enact relative special laws and regulations; in Janpan , Germany and other countries,the usage and the protection of the geographic marks are adjusted by anti-unfair competition law.
In addition to these, there are also some special provisions against the import and export of merchandises which counterfeit geografical marks in many countries' customs laws and trade laws.
The international society also draws up many conventions to sepcial regulate or which includes special provision to regualte the protection of gegraphic marks, such as Paris Convention, Marid Treaty, Lisbon Treaty and TRIPS. The above-mentioned las and international conventions provide references and choices for china legislative department to draft relative laws and regualtions.
By reference to the common and sucessful practice of foreign laws, the writer suggests that in china the protection of geographic marks should be included in the protection system of trademark. On the one hand, provisions should be included in the trademark law allow the geografical marks to be registered as identification mark and specific the conditions and procedures to applicate and register. On the other hand,
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