How are GIs protected?

Hunan people love spicy food, and their taste of chili is unique and sharp.
"Zhangshugang chili", as a nobleman among chili peppers, is even more sought after by many Hunan people
.
However, is the "Zhangshugang pepper" you eat really "Zhangshugang pepper"? Can all the peppers from Zhangshu Town be called "Zhangshugang peppers"? Below, the editor will explain to you the judicial protection of "Zhangshugang pepper" as a geographical indication trademark
through a case .

 

Brief introduction to the case

 

The Chili Industry Association of Zhangshu Town, Xiangyin County is the registrant of the geographical indication certification mark No.
11056297 "Zhangshugang Chili"
.
After investigation, the association found that Hunan Yuanwei Laofanpu Catering Co.
, Ltd.
used "Zhangshugang pepper" as the name of the dish on the menu of the restaurant it operates
.
After the notarization and evidence collection, Hunan Yuanwei Laofanpu Catering Co.
, Ltd.
filed a lawsuit to the court, asking it to stop the infringement and compensate for the losses
.
Hunan Yuanwei Laofanpu Catering Co.
, Ltd.
refused to accept the judgment of the first instance and appealed to the Changsha Intermediate Court
.

 

　　Referee content

 

　　The Changsha County Court held that the actions of Hunan Yuanwei Laofanpu Catering Co.
, Ltd.
constituted an infringement of the exclusive right to the registered trademark "Zhangshugang pepper" No.
11056297 of the Zhangshu Town Pepper Industry Association of Xiangyin County, and ruled that it should stop the infringement and compensate the economic loss of 10,000 yuan.
Yuan (including reasonable fees)
.

 

　　The Changsha Intermediate People's Court held that a geographical indication certification mark is a special commercial mark, usually expressed in the form of "geographical name + product generic name"
.
In this case, the appellant used "Zhangshugang pepper" on the menu as the name of the dish
.
Under normal circumstances, the name of the dish on the menu is used to distinguish different dishes, not to distinguish the source
.
But usually, only using "food name or combination" or "food name + cooking method" (such as "chopped pepper fish head", "cold cucumber", etc.
) is enough to distinguish different dishes, not A specific food origin will be involved, unless the quality of the food is related to the specific origin
.
The alleged infringing logo is "Zhangshugang Pepper", in which "gang" and "gang" are pronounced the same.
When stating the goods it sells in the petition, it is also described as "Zhangshugang pepper"
.
The expression of the alleged infringing logo is consistent with the expression “geographical name + product name” commonly used in geographical indication certification marks.
When the relevant public sees the logo, it is easy to think that the pepper comes from Zhangshugang, and the taste, Quality such as spiciness is related to the natural or geographical factors of the specific area of ​​Zhangshugang, which is exactly the role of the geographical indication certification mark; The difference between ordinary peppers, reminding consumers that the peppers used in this dish comes from Zhangshugang, so this kind of use is the use of trademarks
.
Since the function of the geographical indication certification mark is to prove the specific quality of the product, not the peppers whose origin is Zhangshugang are "Zhangshugang peppers" in the sense of trademark law
.
The trademark can only be used after the goods meet certain conditions and the relevant procedures such as declaration have been completed
.
Even if the pepper involved in this case is indeed from Zhangshugang, the appellant only has the right to legitimately use the place name "Zhangshugang", so this method of use is not a legitimate use
.
The appellant used the name "Zhangshugang Chili" to sell dishes, which constituted an infringement of the exclusive right of the appellee's registered trademark No.
11056297
.
Regarding the legal source defense, considering the popularity, price, and the appellant's business scope and usage of "Zhangshugang Chili", it can be concluded that the appellant did not sell the product in good faith, so the legal source defense cannot be established, and the appellant should be liable for compensation liability for loss
.
In conclusion, the Changsha Intermediate Court rejected the appeal and upheld the original judgment
.

 

     speak for you

　　Cheng Jing, first-level judge of Changsha Intellectual Property Court

 

　　Geographical indications are signs that indicate that a commodity comes from a certain region, and that the specific quality, reputation or other characteristics of the commodity are mainly determined by natural or human factors in the region.
It can be applied for registration as a certification mark or a collective mark, usually using It is expressed in the form of "geographical name + product common name"
.
For example, "Tongguan Roujia Mo" and "Xiaoyao Town Hu Spicy Soup", which aroused heated discussions at the end of last year, as well as "Wuchang Rice" and "West Lake Longjing" that we are familiar with
.
Geographical indication trademarks to some extent weaken the identification characteristics of ordinary trademarks (goods and service marks) to the origin of goods or services, and focus on the proof of the origin, raw materials, manufacturing methods, quality or other specific qualities of goods or services ; The identification of the source of goods is not as specific as ordinary trademarks, but may point to a certain group of qualified commodity suppliers
.

 

　　Article 6 of the Regulations on the Implementation of the Trademark Law of the People's Republic of China stipulates the conditions for the use of geographical indications and the conditions for the fair use of geographical indications, but the fair use only refers to the fair use of the geographical names in the geographical indications, rather than the "geographical name + product generic" full expression of "name"
.
The geographical indication trademark can only be used after the goods meet certain conditions and the relevant procedures such as declaration have been completed
.