Geographical Indications: Can China Reconcile the Irreconcilable Intellectual Property Issue between EU and US?

2019 ◽  
Vol 19 (3) ◽  
pp. 424-445
Author(s):  
Shujie Feng
Keyword(s):  
Intellectual Property ◽  
New World ◽  
Geographical Origin ◽  
Conflicts Of Interest ◽  
Trips Agreement ◽  
Geographical Indications ◽  
The European Union ◽  
Trademark Law ◽  
The Common ◽  
Intellectual Property Issue

AbstractGeographical indications (GIs), signs used on products that identify their geographical origin and special quality or reputation, are atypical intellectual property. The conflicts of interest between the New World and Old World and the diversity of legal regimes have obstructed the international harmonization of GI protection. Neither the Lisbon Agreement nor the TRIPS Agreement have been able to establish a widely accepted international GI registration or protection system. Though the Geneva Act has remarkably improved the treaty regime of GIs, the different approaches of the European Union and United States still seem irreconcilable. This article examines the Chinese dual GI system from a treaty perspective and explores the common functions of GIs and Trademarks, concluding that China's Trademark Law can ensure GI protection that is compliant with the TRIPS Agreement and the Geneva Act. The Chinese solution can be a reference for other countries which protect GIs with a trademark system.

A closer look at the elephant in the room: the distinctiveness of geographical indications

2021 ◽  
Vol 11 (1) ◽  
pp. 25-46
Author(s):  
Song Xinzhe
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trips Agreement ◽  
Geographical Indications ◽  
Not Given ◽  
Traditional Concept ◽  
Trademark Law ◽  
Protection Mechanisms

The term ‘distinctiveness’ is used in trademark law to refer to the capacity of a trademark to distinguish the goods of one undertaking from those of other undertakings. The importance of this concept can be seen in Article 15 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which provides that any sign having distinctiveness shall be capable of constituting a trademark. Gradually, ‘distinctiveness’ has come to be used to describe the distinguishing capacity of other distinctive signs, including geographical indications (GIs). This article explores the distinctiveness of GIs. It begins with a discussion of the meaning of GI distinctiveness in the different GI protection contexts to reveal its particularity compared to the traditional concept of trademark distinctiveness. The second part of the discussion shows, however, that the concept of GI distinctiveness is not given sufficient importance in the protection of GIs, and is confused with the distinctiveness of collective or certification marks. This article therefore calls for an approach that recognizes the importance and the particularity of the distinctiveness of GIs in the design of GI protection mechanisms.

An Analysis of China's System of Protecting Geographical Indications

2006 ◽  
Vol 1 ◽  
pp. 1-21
Author(s):  
Lanye Zhu
Keyword(s):  
Intellectual Property ◽  
Trips Agreement ◽  
Geographical Indications ◽  
Trademark Law ◽  
Chinese Law ◽  
Trademark Registration

AbstractGeographical indications are a kind of intellectual property required to be protected under the TRIPS Agreement of the WTO. In order to fulfil its WTO obligations, China started to protect geographical indications even before it was formally admitted to the WTO. At present, geographical indications can be protected in Chinese law through one or both of the following ways: trademark registration pursuant to the Trademark Law, and the registration of special labels bearing geographical indications. However, internal problems exist within both of these systems, and the co-existence of the systems also creates conflicts. This article analyses these problems and proposes ways of resolving them.

scholarly journals The Notion of the European Union Trademark

2019 ◽  
Vol 8 (1) ◽  
pp. 21-31
Author(s):  
Jarmila Lazíková
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
The European Union ◽  
Distinctive Character ◽  
Trademark Law ◽  
The Public ◽  
Eu Member States ◽  
Goods And Services ◽  
Court Of Justice ◽  
The Eu

AbstractThe EU trademark law has recorded the important changes in the last years. The Community trademark in the past and the EU trademark at the present have become very popular legal measures not only in the EU Member States but also in the third countries. Its preferences are increasing year to year. The EU trademark may consist of a sign that fulfils two main attributes. Firstly, there is a distinctive character. Secondly, there is a capability of being represented on the Register of the EU trademarks. The second attribute is new and replaced the previous attribute - capability of being represented graphically. The interpretation of the above mentioned attributes is not possible without the judgements of the Court of Justice of the European Union. It is necessary to take into account the kind of trademark, list of the goods and services, which should be signed by the trademark, and its perception by the public. The paper includes the main judgements of the Court of Justice of the European Union related to the interpretation of the sign that may be registered as the EU trademark. They are very helpful in the application practice of the European Union Intellectual Property Office and the national offices of the intellectual property as well.

scholarly journals Perlindungan Hukum Terhadap Produk Indikasi Geografis dari Tindakan Peniruan

2019 ◽  
Vol 8 (1) ◽  
pp. 49
Author(s):  
Anak Agung Ngurah Tresna Adnyana
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Research Method ◽  
Legal Protection ◽  
Trips Agreement ◽  
Geographical Indications ◽  
Geographical Indication ◽  
Legal Certainty ◽  
Empirical Law

Legal protection of Geographical Indications is necessary to determine whether there are communal or collective people. The communal community character means to belong to the community in the registered Geographical Indication area. This study aims to analyze legal certainty as well as the legal protection of product geographical indications of imitation actions. This research uses empirical law research method. In this case, the authors find that the TRIPs Agreement (Trade-related aspects of Intellectual Property Rights) and the act no 20 of 2016 concerning Trademarks and Geographical Indications are terms used to register. Perlindungan hukum terhadap Indikasi Geografis sangat perlu di perhatikan karena karakter kepemilikannya yang kolektif atau komunal. Karakter kepemilikan yang komunal memiliki arti menjadi milik bersama semua masyarakat dalam wilayah Indikasi Geografis yang telah didaftarkan. Penelitian ini bertujuan untuk menganalisis kepastian hukum serta perlindungan hukum produk indikasi geografis dari tindakan peniruan. Dalam penelitian ini metode yang digunakan adalah metode penelitian hukum empiris dengan menggunakan pendekatan perundang-undangan. Dalam penelitian ini penulis menemukan bahwa TRIPs Agreement (Trade Related aspects of Intellectual Property Rights) dan Undang-Undang 20 Tahun 2016 Tentang Merek Dan Indikasi Geografis mengatur secara khusus perlindungan bagi produk indikasi geografis yang telah didaftarkan.

scholarly journals LEGAL PROTECTION OF GEOGRAPHICAL INDICATIONS: NOVELTIES UNDER THE LEGISLATION OF UKRAINE

2020 ◽  
Author(s):  
Анатолій Кодинець ◽  
Анастасія Сідоренко
Keyword(s):  
Intellectual Property ◽  
Legal Protection ◽  
Geographical Indications ◽  
Geographical Indication ◽  
The European Union ◽  
Industrial Property ◽  
Association Agreement ◽  
The Law ◽  
Indication Of Origin ◽  
The Eu

The article deals with the features of legal protection of geographical indications in Ukraine. The basic international acts protecting geographical indications in Ukraine are outlined, including the Paris Convention for the Protection of Industrial Property of 1883, the Agreement on Trade-Related Aspects of Intellectual Property Rights in 1994. (TRIPS Agreement), which operates within the framework of the World Trade Organization and extends to goods originating in the Parties to the Agreement, Madrid Agreement 1891. and the Lisbon Agreement on the Protection of Designations of Origin and their  International Registration in 1958, (Ukraine is not a party to the last two agreements). It also outlines the main national legal acts that protect this object of intellectual property, including the Civil Code of Ukraine, the Law of Ukraine «On the Legal Protection of GeographicalIndications», the Law of Ukraine «On Protection against Unfair Competition» and others. The purpose of the study is to analyze changes in the legislation on the legal protection of geographical indications, which came into force on January 1, 2020 andbecame one of the ways to adapt the acts of national legislation to the law of the European Union in accordance with the commitments made by Ukraine after signing theAssociation Agreement with EU. These include changing the name of a special law that protects geographical indications. In addition, the change in terminology, the replacement of the term «indication of origin of goods» and its components by the term «geographical indication». The new also provides legal protection with homonymousgeographical indications; submitting an application for a geographical indication in electronic form, and at the same time providing a product specification and a description of its basic provisions. The article also addresses issues that remain unresolved, a large number of European geographical indications protected under the EU Association  Agreement and a very small number of registered geographical indications originating from the territory of Ukraine and the prospects of protecting national geographical indications in Ukraine and beyond.

scholarly journals 'Stretching the Imagination': Geographical Indications in the EU-Australia FTA Negotiations

2021 ◽  
Vol 11 (2) ◽  
Author(s):  
Sophie Di Francesco-Mayot ◽  
Bruce Wilson
Keyword(s):  
Intellectual Property ◽  
Rural Development ◽  
Free Trade ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
Geographical Indications ◽  
New Wave ◽  
Challenges And Opportunities ◽  
The Eu ◽  
Intellectual Property Issue

The launch of negotiations for an EU-Australia 'free trade agreement' (FTA) on 18 June 2018 was a confirmation of a 'like-minded' strong partnership, in which both parties had high hopes for an ambitious agreement which would test the new wave of protectionism promoted by Donald Trump.Nonetheless, the initial rounds of negotiations revealed several issues which illustrate the scale of the challenge to be addressed. One such example was the issue of Geographical Indications (GI). The EU and its member states adopt an approach which is highly regulated and prescriptive to safeguard the authenticity of its produce and encourage rural development. Australia approaches this kind of intellectual property issue via a trademark system as well as a sui generis system to better capture the benefits of innovation. This paper analyses the challenges and opportunities an accord on GI's could have for both regions, as revealed in the context of the EU-Australia negotiations. The paper claims that while an agreement on GI's was a significant outcome for the overall FTA, the process adopted by the EU and Australia was in itself a reflection of the ambition for an amicable, dynamic and innovative negotiating process.

scholarly journals Enforcement of intellectual property rights within the scope of the TRIPS agreement (trademarks and geographical indications)

2021 ◽  
Vol 2 (5/S) ◽  
pp. 532-540
Author(s):  
Temurbek Mukhammedov ◽  
Iroda Yakubova
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trips Agreement ◽  
Geographical Indications

The article analyses the certain provisions of the TRIPS agreement related to the enforcement of intellectual property rights, in particular trademarks and geographical indications by giving legal commentaries as well as by comparing with the existent civil and civil-procedural laws of Uzbekistan.

Ch.6 Trademarks

2020 ◽  
Author(s):  
Correa Carlos Maria
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trips Agreement ◽  
Trademark Law ◽  
Paris Convention

This chapter addresses Section 2, Part II, of the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement, which relates to trademarks. In addition to the substantive rules contained in said section, the Agreement incorporates provisions to ensure the enforcement of rights (Part III) and, particularly, procedures to be followed by customs authorities with regard to counterfeit trademark goods (Part III, Section 4). This section significantly strengthens the rights of trademark owners as compared to those available under the Paris Convention. The main innovation brought about by the TRIPS text in the trademark area probably relates to the expanded protection conferred on well-known trademarks. Another area of potential significant impact is the limitation and conditions imposed with regard to the use requirement to maintain registration, and the flexibility accorded to assign trademarks unrelated to the respective business. The enforcement rules in Part III are likely to be, however, the most significant components of the Agreement in terms of impact on trademark law.

Messi vs. Massi, Prior Right vs. Reputation: The Decision of the Court of Justice of the European Union and Its Assessment with Regard to the Turkish Trademark Law

2021 ◽  
Author(s):  
Çiğdem Yatağan Özkan
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
Case Law ◽  
Football Player ◽  
Court Decision ◽  
Court Case ◽  
The European Union ◽  
Trademark Law ◽  
Court Of Justice ◽  
Likelihood Of Confusion

Abstract The Messi case,1 which originated with the decision of the European Union Intellectual Property Office (EUIPO) in 2011 and was finalized in 2020, surprised the IP world/practitioners with the remarks of the first instance court and the Court of Justice of the European Union (CJEU) as their findings were contrary to the established case law regarding the implementation of the relative grounds of refusal. Lionel Messi was a party to the court case as the applicant of the later application for the same classes of goods; the first instance court overruled the appeal of the owner of the earlier trademark based on relative grounds, given Lionel Messi’s reputation as a famous football player and thus the reputation of his surname ‘Messi’, even though the two trademarks were considered visually and phonetically similar. It was reiterated in the court decision that the reputation of the owner of the later trademark application neutralized the likelihood of confusion with the earlier trademark. Moreover, the judgment (dated 17 September 2020) of the Tenth Chamber of the CJEU went beyond the ordinary scope of trademark law. In this study we will discuss, in the context of the Messi decision, the influence of the reputation of a later trademark on conceptual differentiation and the possible results of not adducing evidence proving the reputation of a trademark.

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